
    John Edward JONES, Appellant, v. STATE of Florida, Appellee.
    No. 664.
    District Court of Appeal of Florida. Fourth District.
    April 7, 1967.
    Steadman S. Stahl, Jr., of Houston, East-hope & Stahl, Fort Lauderdale, for appellant.
    Earl Faircloth, Atty. Gen., James T. Carlisle and Fred T. Gallagher, Asst. Attys. Gen., Vero Beach, for appellee.
   CROSS, Judge.

Appellant (defendant) herein was convicted of first degree murder and sentenced to life imprisonment, seeks reversal of his conviction on remarks made by the assistant state attorney in argument to the jury inferentially commenting upon defendant’s failure to testify in his own behalf.

The remarks purported to be in violation of F.S.A. § 918.09 are as follows:

“These are the acts and conduct of the defendant.
“And you look' — and you look at those witnesses who have testified there on the witness stand and you ask yourself: Is there any doubt in my mind that this guy knew in the world what he was doing ?
“Now, where is the evidence that says that he didn’t knozv what he was doing?
* * *
“Sure he had an impressive psychosis. Sure he had this feature of mental disease or he had that feature of mental disease, hut he knew what he was doing was wrong.
“Now, how in the world have they shown to you gentlemen by any witnesses that he did not — that he did not know at the time what he was doing was wrong? Where is the testimony that came from the stand?’1 (Emphasis added.)

Florida Statute, Section 918.09, F.S.A. supra, was designed to protect the defendant in a criminal case from having the jury consider his failure to take the witness stand on his own behalf as even the slightest suggestion of guilt. Way v. State, Fla.1953, 67 So.2d 321.

In Tolliver v. State, Fla.App.1961, 133 So.2d 565, at page 566, the history and rsignificance of F.S. § 918.09, F.S.A. is explained as follows:

“This statute, or its predecessors have been a part of the law of this State since 1853, and affords an accused protection from any comment, either directly or indirectly, by the prosecution on his failure to take the stand in his own defense. This is so because if an .accused does not take the stand and the State is permitted to comment on such failure in closing argument this, in effect, makes the accused a witness against liimself, contrary to § 12 of the Declaration of Rights of the Florida Constitution, F.S.A. A review of the decisions of the .appellate courts of this State discloses that they have been ever alert to prevent .any violation of either the letter or the intent of § 918.09, Fla.Stat.1959, F.S.A. See Milton v. State, Fla.App.1961, 127 So.2d 460; Otto v. State, Fla.App.1961, 126 So.2d 152; Ard v. State, Fla.1959, 108 So.2d 38; McLendon v. State, Fla.App.1958, 105 So.2d 513; Gordon v. State, Fla.1958, 104 So.2d 524; Hathaway v. State, Fla.App.1958, 100 So.2d 662; and Way v. State, Fla.1953, 67 So.2d 321.”

Furthermore, the remark by the assistant :State attorney referred inferentially that there was no evidence proffered by the defendant to explain or contradict the evidence of the state. We find this to be most prejudicial to the defendant.

In Singleton v. State, Fla.App.1966, 183 So.2d 245, the court stated:

“ * * * And when the defendant elects not to testify, it is error to refer to the State’s evidence as being unexplained or uncontradicted, or undenied (overruling prior cases which held such comment to be permissible) Way v. State, Fla.1953, 67 So.2d 321; Trafficante v. State, supra [Fla., 92 So.2d 811].”

To determine whether the comments of the assistant state attorney are susceptible of the inference that the defendant’s silence was brought to the jury’s attention it should be noted that his remarks from his argument, cited above, in referring to the “acts and conduct of the defendant * * * those witnesses who have testified there on the witness stand * * *. Now, where is the evidence that says he didn’t know what he was doing?” bears a “close grammatical proximity.” The grammatical proximity of the two sentences appears to us to point to the inescapable conclusion that reference was being made to the fact that the defendant had failed to take the witness stand and testify on his own behalf.

The judgment appealed from is hereby reversed and remanded for a new trial.

Reversed and remanded.

WALDEN, C. J., concurs.

ANDREWS, J., dissents with opinion.

ANDREWS, Judge

(dissenting).

I respectfully dissent.

The question presented is admittedly a borderline question. However, a careful reading of the opening and closing remarks of the prosecuting attorney at the con-elusion of the trial convinces me that such comments do not present an improper reference to the failure of the defense to rebut the testimony presented by the state. There were numerous witnesses for the state and for the defendant, and the prosecuting officers must not be so restricted that they cannot comment upon the deficiencies of the 'testimony presented in the defense of a criminal case.

In my opinion the correct rule in Florida is as stated in Clinton v. State, 1908, 56 Fla. 57, 47 So. 389, by Justice Cockrell when he said:

“The pre-existing right of the state to argue the character of the evidence adduced by it has not been taken away by the statute permitting the accused to be a witness and forbidding the state to comment upon his failure to accept that privilege. 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 pre-existing 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. * *

Way v. State, Fla.1953, 67 So.2d 321; Trafficante v. State, Fla.1957, 92 So.2d 811; Gordon v. State, Fla.1958, 104 So.2d 524, apply the provisions of F.S.A. § 918.09 under particular circumstances but do not overrule Clinton v. State, supra, and similar cases.

The comment found to be objectionable in Singleton v. State, Fla.App.1966, 183 So.2d 245, is distinguishable from the situation before the court here. In the Singleton case the state attorney calls specific attention to the manner in which the defendants had testified. There were two defendants; one had testified and one had not.

In Flaherty v. State, Fla.App.1966, 183 So.2d 607, a decision of this court, the comment was a clearly improper reference to the fact that the sole defendant did not testify. There must be a reasonable rule; such as; in Clinton v. State, supra, which makes it possible for a prosecuting officer to comment upon the deficiencies in the testimony offered in the defendant’s own behalf where the defendant does not testify-

I would affirm. 
      
      . “918.09 Accused may make himself a witness. — In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”
     