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Farmer v. State

District Court of Appeal of Florida, Fourth District
Feb 9, 1976
326 So. 2d 32 (Fla. Dist. Ct. App. 1976)

Summary

In Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976), the prosecutor brought out on cross-examination that defendant had remained silent at a preliminary hearing.

Summary of this case from Willinsky v. State

Opinion

No. 74-1617.

January 9, 1976. Rehearing Denied February 9, 1976.

Appeal from the Circuit Court, Orange County, William C. Gridley, J.

Richard S. Rhodes, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.


Appellant was convicted of first degree murder. The only issue he raises on appeal is the sufficiency of the evidence to show premeditation. We conclude that this point is without merit.

We comment briefly on what might appear, at first blush, to be fundamental error even though not argued. Appellant testified in his own behalf, relating a version of the incident which, if believed, would tend to partially (if not totally) exonerate him. Upon cross-examination the prosecutor elicited from appellant an admission that he had remained silent at the preliminary hearing. This was improper. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So.2d 41 (Fla. 1975); Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967). Defendant's counsel initially objected, but then withdrew the objection, apparently because he intended to show on redirect examination that appellant's silence at the preliminary hearing was the result of advice of counsel. There was no motion for a mistrial, no motion to strike this testimony, nor any motion for the court to instruct the jury to disregard such testimony. In short, there was no judicial error, and we are not inclined to hold it as fundamental error in view of defense counsel's tactical decision to withdraw his objection.

Affirmed.

WALDEN, C.J., and OWEN and DOWNEY, JJ., concur.


Summaries of

Farmer v. State

District Court of Appeal of Florida, Fourth District
Feb 9, 1976
326 So. 2d 32 (Fla. Dist. Ct. App. 1976)

In Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976), the prosecutor brought out on cross-examination that defendant had remained silent at a preliminary hearing.

Summary of this case from Willinsky v. State
Case details for

Farmer v. State

Case Details

Full title:DARRYL FARMER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Feb 9, 1976

Citations

326 So. 2d 32 (Fla. Dist. Ct. App. 1976)

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Willinsky v. State

We then held that the disclosure of silence at arrest in Galasso was error, but harmless under the…