Florida Supreme Court Finds Prosecutor’s Comment Was Not Improper – Bell v. State

February 13, 2013 by David S. Seltzer

The Constitution guarantees criminal defendants the right to remain silent—but it doesn’t guarantee that the choice to invoke that right won’t be damaging. In Bell v. State of Florida, the Florida Supreme Court ruled that a prosecutor’s comment on the lack of refuting evidence couldn’t be interpreted as an impermissible comment on the defendant’s failure to testify. Gary Fontaine Bell was being prosecuted for lewd and lascivious molestation of a victim under the age of 12, and also for failure to appear at a previous hearing. Bell’s prosecutor stated during closing arguments that “So without any evidence contradicting [state’s evidence], the State has proven to you beyond a reasonable doubt” the victim’s age. Bell appealed that statement as an improper comment on his lack of testimony. The First District Court of Appeal disagreed and so did the Florida Supreme Court.

During voir dire in Bell’s case, the prosecutor asked the jury panel if they would be unwilling to convict based only on the word of a child. Bell objected, saying this was a backhanded way to ask for a promise to convict. The trial court denied a new panel and the case went to trial, using videotaped and live testimony from the victim as well as testimony from her mother (Bell’s ex-wife). Bell did not testify in his own defense, although other witnesses did. During closing arguments, the prosecutor told jurors that the victim’s age was one element of the crime, and that “without any evidence contradicting [state’s evidence], the State has proven to you beyond a reasonable doubt” her age. The state also made favorable comments about the victim’s credibility and noted that Bell presented no evidence of his state of mind. Bell moved for a mistrial, arguing that this was an attempt to weaken the standard of proof and a comment on his remaining silent.

Bell was denied a mistrial in trial court, and again at the First District Court of Appeal. His appeal to the Florida Supreme Court also failed. The high court found that the first comment, on the victim’s age as an element of the crime, could not reasonably be interpreted as a comment on his right to remain silent because more than one person could give testimony as to the victim’s age. It did agree that the comment that it was the victim’s word against Bell’s not-guilty plea was improper. By noting that the not-guilty plea was the sum of the evidence Bell presented, the high court said, the prosecutor did comment on his lack of testimony. It applied similar logic to comments that “it’s always one person’s word against another’s” and “there is no evidence that she would have made this up,” saying they could have shifted the burden of proof. However, it found no fundamental error resulting from the comments—and, it noted, Bell failed to preserve arguments on the issue. Thus, it upheld his conviction and trial.

In my experience, the prosecutor’s comment that it’s one person’s word against another’s is right—even if it did highlight Bell’s failure to testify. Because I defend people accused of this kind of serious sex crime, I know very well that sex crimes are usually a “he said, she said” situation that takes place behind closed doors and often without any physical evidence. That’s why credibility is vital—and that means improper comments can make the difference in the case. Though it may seem small, comments like these are important details and I support challenging them whenever necessary.

If you’re accused of any kind of crime in Florida, you need experienced, professional legal representation right away. Seltzer Law, P.A., offers free, confidential consultations to all potential clients. Call our downtown Miami office today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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