District Court of Appeal of Florida, Fourth District.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
During the closing argument in appellant's trial for battery, the prosecutor made a comment to the effect that no one took the stand to contradict the state's case. This was an improper comment, implicating the appellant's Fifth Amendment rights. See Watts v. State, 921 So. 2d 722, 724 (Fla. 4th DCA 2006) (where only the officer and the defendant were present during the incident and only the officer testified at trial, the prosecutor's comment, "Did you hear anybody else testify to dispute the officer's story?" was an impermissible comment on the defendant's failure to testify); Smith v. State, 843 So. 2d 1010, 1011 (Fla. 1st DCA 2003) (prosecutor's comment in closing that "Nobody testified that he wasn't the guy," was an improper burden-shifting comment). Nevertheless, we conclude that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
We affirm on all issues raised.
TAYLOR and CONNER, JJ., concur.
