Henderson v. State

69 So. 3d 1022, 2011 Fla. App. LEXIS 14571, 2011 WL 4056206

Opinion

WARNER, J.

During the closing argument in appellant’s trial for battery, the prosecutor made a comment to the effect that no one took the stand to contradict the state’s case. This was an improper comment, implicating the appellant’s Fifth Amendment rights. See Watts v. State, 921 So.2d 722, 724 (Fla. 4th DCA 2006) (where only the officer and the defendant were present during the incident and only the officer testified at trial, the prosecutor’s comment, “Did you hear anybody else testify to dispute the officer’s story?” was an impermissible comment on the defendant’s failure to testify); Smith v. State, 843 So.2d 1010, 1011 (Fla. 1st DCA 2003) (prosecutor’s comment in closing that “Nobody testified that he wasn’t the guy,” was an improper burden-shifting comment). Nevertheless, we conclude that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We affirm on all issues raised.

TAYLOR and CONNER, JJ., concur.