Ney v. McCain

District Court of Appeal of Florida

Ney v. McCain

480 So. 2d 189, 11 Fla. L. Weekly 42, 1985 Fla. App. LEXIS 16933

CourtDistrict Court of Appeal of Florida

DecidedDecember 18, 1985

DocketNo. 85-68

StatusPublished

This text of 480 So. 2d 189 (Ney v. McCain) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ney v. McCain, 480 So. 2d 189, 11 Fla. L. Weekly 42, 1985 Fla. App. LEXIS 16933 (Fla. Ct. App. 1985).

Pincite

Opinion

HALL, Judge.

This case involves prosecutorial comment upon appellant’s failure to testify. Twice in his closing argument the prosecutor directed the jury’s attention to such fact. Upon objection by appellant, the trial court warned that the comments came “close” to being impermissible.

In that the state has met its burden of showing the comments to be harmless beyond reasonable doubt, we are bound by United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); State v. Marshall, 476 So.2d 150 (Fla.1985); and State v. Murray, 443 So.2d 955 (Fla.1984), to apply the harmless error doctrine.

Although we affirm the conviction, we note that in State v. Murray, the Florida Supreme Court suggested disciplinary investigation of such overzealous and errant prosecutors. Prosecutorial misconduct such as in the instant case would otherwise go uncurbed. Prosecutors should not be permitted to violate defendant’s constitutional rights with impunity.

DANAHY, A.C.J., and FRANK, J., concur.

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