DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   DEMETRIUS JEFFREY HOPKINS,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2204

                           [November 20, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph George Marx, Judge; L.T. Case No.
502013F011872A.

   Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Jessenia
J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

    Demetrius Hopkins appeals his conviction for first degree murder with
a firearm. Finding merit in Appellant’s argument that the prosecutor made
an impermissible comment on his post-arrest right to remain silent, we
reverse and remand for a new trial. In light of our disposition, the
remainder of Appellant’s arguments are moot and will not be discussed.

    Appellant was arrested and charged with the murder of Jean Nesca
(“the victim”) after four eyewitnesses present at the bar where the incident
occurred identified Appellant as the shooter. Although the testimony of
the eyewitnesses varied in detail, the consensus of the testimony
established that, on the night of the shooting, an individual with the
nickname “Meatball” got into a verbal altercation with the victim.
The altercation escalated and the individual physically attacked the victim,
rendering him unconscious. Shortly thereafter, the individual pointed a
firearm at the still unconscious victim and fired one fatal shot. The murder
weapon was never found. When Appellant was arrested the following day,
he invoked his right to remain silent.
    At trial, Appellant took the stand in his own defense and testified that
he was at the bar hanging out with his friend “Rico” when the shooting
occurred. Appellant was adamant that that he did not shoot the victim
and that the eyewitnesses misidentified him as the shooter. Appellant
further insisted that it was a coincidence that he and the actual shooter
shared the same nickname “Meatball.” During cross-examination, the
prosecutor brought up Rico and asked Appellant the following question:
“And today in 2018 is the first time we’re hearing about this guy name[d]
Rico?” Defense counsel objected, arguing that the comment constituted
an improper comment on Appellant’s right to remain silent. The State
countered that Appellant waived his right to remain silent by testifying at
trial and the court overruled the objection.

    Under Florida law, the State is not permitted to “comment on a
defendant’s postarrest silence” and this prohibition applies “to all evidence
and argument, including impeachment evidence and argument, that [is]
fairly susceptible of being interpreted by the jury as a comment on silence.”
State v. Hoggins, 

, 769 (Fla. 1998); accord Ferrari v. State,

, 312 (Fla. 4th DCA 2018). Importantly, a defendant does
not waive this prohibition by electing to take the stand and testify at trial.

.

   This Court’s holding in Shabazz v. State, 

(Fla. 4th DCA
2006) is instructive.      In that case, the state presented testimony
establishing that the defendant shot at the victim first and the victim
returned fire. 

The defendant took the stand in his own
defense and, in contrast to the state’s evidence, testified that the victim
opened fire first and that he merely shot back in self-defense. 

physical evidence was inconclusive as to who actually shot first. 

attempt to imply that his story was recently fabricated, the
prosecutor asked the defendant the following question: “This is the first
time you’ve told your version of the events, right here to this jury, you’ve
never told it to anybody else before, have you?” 

objected and moved for a mistrial based on the prosecutor’s comment on
defendant’s right to remain silent, and the court overruled the objection
and denied the motion. 

   In reversing the defendant’s second degree murder conviction, we held
that “[t]he prosecutor’s question was fairly susceptible of being interpreted
by the jury as a comment on [defendant’s] right to remain silent and
therefore was improper.” Id.; see also Burgess v. State, 

,
592–93 (Fla. 4th DCA 1994) (improper for a prosecutor to make a comment
“showing that the defendant did not make a statement until his testimony
at trial”); Hosper v. State, 

, 235 (Fla. 3d DCA 1987) (“The

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prosecution is not permitted to comment upon a defendant’s failure to offer
an exculpatory statement prior to trial, since this would amount to a
comment upon the defendant’s right to remain silent.”).

    The prosecutor’s question in the instant case is indistinguishable in
substance from the question posed in Shabazz. Similar to the prosecutor
in Shabazz who impermissibly asked the defendant whether “[t]his is the
first time you’ve told your version of the events, right here to this jury,” the
prosecutor in the instant case asked Appellant “[a]nd today in 2018 is the
first time we’re hearing about this guy name Rico?” This question, which
was neither limited in time nor scope, was broad enough to encompass
both pre-arrest and post-arrest silence and therefore fairly susceptible of
being interpreted as a comment on Appellant’s post-arrest right to remain
silent. See West v. State, 

, 1077 (Fla. 1st DCA 2011).
Moreover, although defense counsel only lodged a comment on silence
objection, the prosecutor’s question also improperly shifted the burden of
proof by implying that Appellant had the burden of offering an exculpatory
statement prior to trial. See Lenz v. State, 

, 798–99 (Fla.
4th DCA 2018) (analyzing whether the prosecutor’s comment, which was
only objected to on burden-shifting grounds, also constituted an improper
comment on silence and reiterating that comment on silence objections
are generally indistinguishable from burden-shifting objections).

   In light of the lack of physical evidence linking Appellant to the murder
and the conflict between Appellant’s testimony and the testimony of the
eyewitnesses, it cannot be said that the error was harmless. See 

(“When the evidence against the defendant is not clearly
conclusive, comment on postarrest silence is not harmless.”); 

(holding that because the evidence against the
defendant was inconclusive and the case consisted of conflicting stories
for the jury to resolve, there was a reasonable possibility that the
impermissible comment on silence affected the verdict).

   Reversed and remanded for a new trial.

TAYLOR and MAY, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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