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PARIENTE, J., concurring in result only.


I concur with the majority`s opinion vacating the death sentence as a result of reversible error based on the cumulative effect of the State presenting inadmissible nonstatutory aggravation of Poole`s criminal history and the content of his tattoo, as well as the questions on lack of remorse. The majority`s opinion is that the combination of these errors deprived Poole of a fair penalty phase. See majority op. at 17.


I concur in result only because of my disagreement with the majority`s use of the mistrial standard rather than the harmless error standard as to the objected-to portions of the closing argument in the guilt phase on Poole`s failure to testify at trial and his silence after arrest. For the reasons more extensively set forth in my special concurrence in Salazar v. State, 991 So. 2d 364 (Fla. 2008), I do not agree with the majority`s use of the mistrial standard in this case because counsel both objected and moved for a mistrial. See majority op. at 10. Instead, the majority should employ the harmless error standard because Poole preserved the issue for review by objection and motion for mistrial. This standard is especially appropriate here where there is a clearly impermissible comment on Poole`s constitutional right to remain silent.


There are at least two reasons for using the harmless error standard. First, it is consistent with our precedent in Parker v. State, 873 So. 2d 270 (Fla. 2004).






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Second, the standard applied by the majority in this case is virtually identical to that for fundamental error so essentially we are applying the same standard to objected-to error in combination with a motion for mistrial and unobjected-to error.


See majority op. at 10. Fundamental error is error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.` Jones v. State, 949 So. 2d 1021, 1037 (Fla. 2006) (quoting Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996)).


Similarly, [a] motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial. England v. State, 940 So. 2d 389, 401-02 (Fla. 2006). We should not equate objected-to error with unobjected-to error, particularly where the prosecutor makes a clearly impermissible comment on the right to remain silent and the defense objects.


Consider what happened in this case. In closing argument, after stating that the defense argument came from Fantasy Land, the prosecutor made two comments that were not objected to and could be characterized as invited error as explained by the majority. But then the prosecutor remarked:


And if Mr. Poole wants to tell the state and Detective Grice that somebody helped him commit this crime, then let him come forward because-- It was at this point that defense counsel objected and moved for a mistrial, arguing that the prosecutor`s comments violated Poole`s right to remain silent.





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The prosecutor attempted to justify his argument by claiming that defense counsel had opened the door, but then told the trial judge he would not take the argument any further. The trial court never sustained the objection and only denied the motion for a mistrial. Thus, the jury heard the objection but never learned that the comment was impermissible.6


I would therefore review the error based on the harmless error standard. The harmless error test properly places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). As this Court explained in DiGuilio, comments on the right to remain silent are high-risk errors but the errors are not per se reversible.


Id. at 1135.


In the end, however, I concur with the majority`s result in affirming the conviction, because I conclude that the prosecutor`s improper comment was harmless beyond a reasonable doubt. First, the impermissible remark was not







6. As the majority explains, the final objected-to comment was an impermissible comment on Poole`s failure to testify. As pointed out by the majority, any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant`s failure to testify is error and is strongly discouraged. Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (emphasis added) (quoting State



v. Marshall, 476 So. 2d 150, 153 (Fla. 1985)).






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repeated or emphasized. See, e.g., Fitzpatrick v. State, 900 So. 2d 495, 517 (Fla. 2005) (determining that witness`s improper comment on defendant`s silence was harmless beyond a reasonable doubt because there was overwhelming permissible evidence of the defendant`s guilt, the comment was neither repeated nor emphasized, and the trial judge expressly indicated the lack of importance he believed the jury attributed to the remark). Second, the improper comment was later followed by the trial court`s instruction to the jury that the burden rested with the State and that [t]he defendant is not required to present evidence or prove anything. The court also instructed the jury that Poole had the right not to testify and that the jury must not view Poole`s failure to testify as an admission of guilt or be influenced by his decision in any way. See, e.g., Hitchcock v. State, 755 So. 2d 638, 643 (Fla. 2000) (concluding that prosecutor`s erroneous comments during closing arguments about what the jury could consider in mitigation were harmless where the comments were followed by a correct explanation of mitigation and where the judge gave the mitigating circumstance at issue some weight in sentencing).


Third, although the amount of evidence is not the test of harmless error, in this case there was overwhelming permissible evidence of Poole`s guilt. Cf.


DiGuilio, 491 So. 2d at 1138 (finding improper comment on post-arrest silence to be harmful error in part because the permissible evidence was not clearly





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conclusive). The evidence demonstrated that Poole was seen by a neighbor walking towards the victims` trailer on the night of the crimes; Poole sold video games like those taken from the victims` residence immediately after the attack; and Poole`s live-in girlfriend found a game controller on the porch of Poole`s residence the following morning. Moreover, the State presented physical evidence linking Poole to the crimes, including semen found in victim Loretta White matching Poole`s genetic profile, a shoeprint on a notebook in the victims` trailer matching Poole`s shoeprint, a stain found on the sleeve of Poole`s shirt matching White`s DNA profile, and blood found on three game systems and a game controller, which were possessed by Poole after the crimes, matching victim Noah Scott`s DNA profile.


Nevertheless, I emphasize that what we made clear over two decades ago about the harmless error test bears repeating:


The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.


Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. This rather truncated summary is not comprehensive but it does serve to warn of the more common errors which must be avoided.





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DiGuilio, 491 So. 2d at 1138. And, as we emphatically stated in DiGuilio: We wish to emphasize that any comment, direct or indirect, by anyone at trial on the right of the defendant not to testify or to remain silent is constitutional error and should be avoided. Id. at 1139.


Clearly, this prosecutor did not get the message of DiGuilio and its progeny, and he risked reversal of the guilt phase by making this impermissible closing argument. In this case, an objection was made to the impermissible comment and the trial court should have acted on it. What we stated in Bertollotti v. State, 476 So. 2d 130 (Fla. 1985), rings true today, especially in death penalty cases:


Moreover, we commend to trial judges the vigilant exercise of their responsibility to insure a fair trial. Where, as here, prosecutorial misconduct is properly raised on objection, the judge should sustain the objection, give any curative instruction that may be proper and admonish the prosecutor and call to his attention his professional duty and standards of behavior.


Id. at 134.


For these reasons, I concur in the majority`s opinion vacating the death sentence, and concur in result only in the majority`s opinion affirming on the issue of the prosecutor`s improper comments on Poole`s failure to testify at trial and his silence after arrest.


ANSTEAD, J., concurs.


An Appeal from the Circuit Court in and for Polk County,




J. Dale Durrance, Judge ­ Case No. CF01-7078A-XX





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James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee
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