
    Stephen Anthony MENDOLIA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1613.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Richard L. Jorandby, Public Defender, Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, C.J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

WALDEN, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring specialty-

Appellant seeks review of a judgment adjudging him guilty of grand theft and sentencing him to five years imprisonment. I have considered all his arguments and believe one warrants discussion, but not reversal; namely, his allegation that prosecu-torial remarks during closing arguments constituted reversible error.

After the first part of defense counsel’s closing argument, but during his own, the prosecutor stated:

Now, the question for you to decide is did the defendant do it? And in opening statement, I alluded to that fact. Now, you heard Mr. Kramer. And quite frankly, the entire argument should begin, “Once upon a time,” because it is a fairy tale. It’s an absolute fairy tale and a smokescreen. It is significant in what it omits and in what Mr. Kramer promised you he was going to show you in his opening statement. He said that he would prove that there were absolute falsehoods on the part of the State. Where are they?
There’s a certain amount of confusion from a befuddled woman who doesn’t perhaps know the difference between two minutes and five minutes.
Mr. Kramer also said he was going to show you how Corporal Lindsey had not told the truth about the warning shots. You heard Fonda Cook testify she didn’t know. She didn’t know if there were two warning shots or one shot directed at the defendant and one shot was a warning shot. You heard the officer testify that he came on the scene, saw the defendant at once, he saw him once, twice, three times. He chased him 300 feet. He said he called on him to stop, and he didn’t. Okay?
The fingerprints. Red herring, as it were, dragged across. Just like a football player. I don’t know if many of you are football fans, but I like to call it “misdirection.” Because Mr. Kramer and his client don’t want to talk about the evidence, they don’t want to talk — you didn’t hear them talk about the inferences — [Emphasis supplied.]

Appellant contends that, because he did not take the stand or present other evidence, the foregoing remarks were improper comments on his right to remain silent. A review of the trial transcript, however, shows they were a retort to defense counsel’s argument — not a commentary on appellant’s silence — intended solely to steer the jury back on the course the prosecutor had charted.

In his attempt to steer the jury, the prosecutor referred to the fingerprints because of the frequency with which they and a palm print became a heated issue throughout the trial. Both had been found at the scene, but the fingerprints were of insufficient quality for comparison and the palm print was never compared with those of appellant because the court order requiring appellant to be fingerprinted had expired and the prosecutor was on military leave when another order should have been obtained. These issues, as well as the prospective testimony of the State’s fingerprint expert, were discussed during the trial in two lengthy conferences outside the jury’s presence. Commenting on this topic during the first part of his closing argument, defense counsel had said:

Now, George Miller testified that the prints that were given to him by Officer Lindsey were not of sufficient quality, the fingerprints weren’t. But what about that palm print? You know, don’t the police have a duty to do everything to try to prove a person’s innocence as well as trying to prove a person is guilty? Don’t the police officers — shouldn’t they have that responsibility, too? The procedures were there for them to get—

No doubt this remark was the straw that broke the camel’s back, prompting the complained of rebuttal by the prosecutor who knew why the palm print comparison was not made. Consequently, the prosecutor’s use of the words “his client,” “they,” and “them” were the result of heat, not light, and we certainly should not put our imprimatur on them. Nevertheless, while speaking for the supreme court in Jones v. State, 204 So.2d 515, 517 (Fla.1967), the late, then retired, Circuit Judge Joseph S. White said:

In making a comparison with previous decisions on the subject, it is important to analyze the prosecutor’s argument in the light of the circumstances in each case.

I have done that in this case and, on balance, conclude the prosecutor did not go beyond the pale.

WALDEN, Judge,

dissenting.

I would reverse Mendolia’s conviction because of improper prosecutorial comment of constitutional dimension.

At trial Mendolia did not take the stand or present any evidence. During closing argument, selecting the cleanest example, the prosecutor stated:

The fingerprints. Red herring, as it were, dragged across. Just like a football player. I don’t know if many of you are football fans, but I like to call it “misdirection.” Because Mr. Kramer [Mr. Kramer was Mendolia’s trial counsel] and his client don’t want to talk about the evidence, they don’t want to talk — you didn’t hear them talk about the inferences — (emphasis supplied)

Clearly, beyond doubt, the foregoing was a prosecutorial comment upon the fact that the Mendolia claimed his privilege to remain silent in the face of accusation.

It was commented in Clark v. State, 363 So.2d 331 (Fla.1978) at page 333:

The Fifth Amendment to the Constitution of the United States provides: No person . .. shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; ... The Supreme Court of the United States, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), construed this right to mean that the prosecution may not use at trial the fact that the defendant claimed his privilege to remain silent in the face of accusation. Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination. If properly preserved for appeal through objection, the admission of such testimony constitutes reversible error. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975).

Here, the error was preserved via proper objection and motion. Clark v. State, supra.

But what about the State’s contention that the prosecutor was merely attacking the logic of defense counsel’s closing argument, or, as is suggested, the prosecutor’s remarks were only a retort to defense counsel’s argument intended solely to steer the jury back on the course the prosecutor had charted.

First, as to the prosecutor’s intention, he very well may or may not have so intended his remarks. However, his intention is of no moment. The traditional focus in the cases dealing with improper prosecutorial comment has not been on the prosecutor’s motive, but rather on the interpretation that may be given to those comments by a jury. Trafficante v. State, 92 So.2d 811 (Fla.1957) and Gordon v. State, 104 So.2d 524 (Fla.1958).

Continuing, it is well settled that the State may meet a challenge issued by defense counsel’s argument by means of a fair reply which discusses the lack of evidence or testimony to support the defense’s premise. State v. Jones, 204 So.2d 515 (Fla.1967) and Adjmi v. State, 139 So.2d 179 (Fla. 3d DCA 1962), rev’d on other grounds, 154 So.2d 812 (Fla.1963). However, the prosecutor’s rebuttal or refutation must be fair; that is, his comment must not be so vigorous as to be “fairly susceptible” of being interpreted by the jury as referring to a criminal defendant’s failure to testify. Clinton v. State, 56 Fla. 57, 47 So. 389 (1908) and Trafficante, supra.

In Clinton the Florida Supreme Court noted that there are limits to the extent to which the State directs the jury’s attention to those portions of the evidence which were in controversy and those which were uncontroverted. The Clinton court stated:

The State still has the right to direct the attention of the jury to that portion of the evidence as to which there is conflict and to that portion which is without conflict. Testimony may in a sense be contradicted in various ways, as by inherent improbability, by cross-examination, or by the demeanor of the testifier. So long as the State does not exercise its preexisting right, so as to make it directly or covertly a comment upon the failure of the accused to voluntarily become a witness, the law is not violated. (Citation omitted and emphasis added.)

(Id. at 390.)

Here the prosecutor’s comments went beyond the permissible bounds and were even more than “fairly susceptible” of being interpreted as referring to the appellant’s failure to testify. Trafficante, supra, and David v. State, 369 So.2d 943 (Fla.1979).

If defense counsel in criminal cases is to be effective it is his function and duty in closing argument to discuss the shortcomings of the State’s case, to include deficiencies in the proofs. This was done here. Does defense counsel thereby waive the defendant’s Fifth Amendment rights so that the State can then freely comment on the defendant’s silence using the justification and basis, as here, that such comments were only a retort to defense counsel’s argument intended solely to steer the jury back on the course the prosecutor had charted? I think not. Otherwise, Fifth Amendment rights evaporate into nothingness.

Reflecting on the contents of the transcript and the above quoted portion it is evident that there were various ways that the prosecutor could have properly countered the argument of defense counsel. Clinton, supra.

Finally, in the cases cited in the State’s brief I can not find a single authority in support of what was done here.

In my opinion the rights of defendant were violated in a way that can only be corrected by a new trial.

I would reverse and remand for a new trial.  