Jones v. State

727 So. 2d 1120, 1999 Fla. App. LEXIS 2694, 1999 WL 128754

Opinion

PER CURIAM.

Markees A Jones (defendant) was tried and convicted of committing first-degree premeditated murder.¹ At trial, the evidence of guilt was overwhelming. Five eye witnesses testified that they saw the defendant shoot the victim as he tried to run from the defendant. After the victim fell, the defendant shot him at least two more times.

The defendant appeals his judgment and sentence claiming that certain trial errors entitle him to receive a new trial. The defendant’s claims of error are without merit. The trial court did not err in failing to give the special jury instruction requested by the defendant defining premeditation. See Spencer v. State, 645 So.2d 377 (Fla.1994). The trial court also did not err in denying the defendant’s motion for mistrial based upon the prosecutor’s comment, made during final argument, that: “The defendant has had time to think about his testimony, and you heard.” This comment was not a reference to the defendant’s right to remain silent. Importantly, even if the comment were to be so construed, the resulting error would have been harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, we affirm.

AFFIRMED.

W. SHARP, PETERSON and ANTOON, JJ., concur.

1 . § 782.04, Fla. Stat. (1997).