FL4: Comment on refusal of consent violated Fourth Amendment, but was harmless

Prosecutor’s comment in opening statement about defendant’s refusal of consent violated the Fourth Amendment, but it was harmless. Fratcher v. State, 37 So. 3d 365 (Fla. App. 4th DCA 2010):

In this appeal, Fratcher complains of the following comment the prosecutor made during her opening statement:

The police get there. Fratcher opens the door and they place him under arrest. He immediately–the officer, you hear Detective McNally … say, can I search your truck. No, you can’t search my truck.

We believe that, under Gomez [v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990)], the trial judge abused his discretion in overruling Fratcher’s objection to this comment. While the prosecutor did not make the comment in a closing argument–so that it was not tinged with the argumentative character that made the Kearney comments so harmful–it was made as part of a narrative retelling of the facts, as was the impermissible comment in Gomez. Against this case’s constitutional backdrop, the prosecutor’s comment ran afoul of the strong prohibition against comment on a defendant’s exercise of his Fourth Amendment rights that the fifth district announced in Gomez and we followed in Kearney. Nonetheless, we find the error to be harmless. See Goodwin v. State, 751 So. 2d 537 (Fla. 1999).

Contrary to Fratcher’s argument, however, the judge did not abuse his discretion in denying the motion for mistrial.”Improper prosecutorial comments give rise to error justifying mistrial when they are so prejudicial that they vitiate the entire trial. In determining whether reversal is warranted …, the court must determine whether the effect of the comment was to prejudice the jury and impair the fairness of the proceeding.” Mannarino v. State, 869 So. 2d 650, 652 (Fla. 4th DCA 2004) (citations omitted) (some internal punctuation marks omitted) (in context of comments made by prosecutor during closing argument). Here, the trial court ruled that the comment did not vitiate the entire trial. We agree. The prosecutor made the comment during opening statement in a non-argumentative manner and did not focus on the fact that Fratcher refused consent to a search. After the judge admonished the prosecutor not to mention it again, the prosecutor did not.

[An issue that remains unstated is a double jeopardy bar mistrial: If a mistrial were granted, the defendant would be able to assert a double jeopardy bar, and the loser of that issue would appeal, seriously prolonging the trial. If the comment is not outrageously flagrant and clearly designed to prejudice the accused, the trial court likely is better off to deny the mistrial for the time being and hold it under abeyance and admonish the prosecutor. If it recurs, mistrial; if not, the jury may cure the issue by acquitting. At least the court can view the issue in the context of the whole trial and rule on it in a motion for new trial on harmless error.]