
    Roy Lynn COLE, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 91-2520.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1994.
    James B. Gibson, Public Defender, and Sophia B. Ehringer, Asst. Public Defender, Daytona Beach, for appellant, cross-appellee.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara Arlene Fink, Asst. Atty. Gen., Daytona Beach, for appellee, cross-appellant.
   PER CURIAM.

AFFIRMED.

PETERSON and GRIFFIN, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

The comments of the prosecutor regarding the defendant’s pre-arrest silence coupled with the judge’s permitting the jurors to direct questions to the witnesses coupled with the foreman of the jury asking if the defendant was going to testify created a violation of the defendant’s right to a fair trial. In my opinion there should be a rule prohibiting jurors from participating as examiners of witnesses and this case exemplifies the hazards inherent.

That the defendant is guilty is of little doubt but all accused persons are entitled to a fair trial. In addition to, in fact paramount to, the duty of a prosecütor to seek a conviction is the duty to assure a fair trial. It is justice the state, through the court, seeks, not anything less. To require a new trial is the only effective remedy for the most serious misconduct.  