       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 22, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                  No. 3D16-940
                            Lower Tribunal No. 13-24416
                               ________________


                        Schmertz Pierre-Louis Jr.,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A.
Ruiz, Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.

     EMAS, J.
      Following a jury trial on the charge of second-degree murder, Schmertz

Pierre-Louis, Jr. was convicted of manslaughter and sentenced to thirty years’ state

prison followed by ten years’ probation.

      On appeal, Pierre-Louis, Jr. asserts four claims of error during closing

argument. We affirm, and write to address one of those claims.1

      Pierre-Louis, Jr. contends that, during closing argument, the State

improperly commented on his right not to testify at trial. Appellant relies for this

contention upon the following passage in the State’s rebuttal closing:

      PROSECUTOR: [Defense counsel] says that paying to stay at a
                  hotel is not against the law. Paying to change your
                  clothes and put clothes on is not against the law.
                  Dreadlocks are not against the law. Cutting your
                  dreadlocks off is not against the law.

      DEFENSE:            Objection, Your Honor. Motion.

      PROSECUTOR: Shooting somebody is. He is not on the stand
                  because he paid for a hotel room.

      DEFENSE:            Objection. Motion.

      COURT:              Overruled.

      (Emphasis added.)

      A criminal accused has a constitutional right not to testify in his trial. U.S.

Const., Amend. V; Art. I, § 9, Fla. Const. Therefore, “any comment on, or which

1 We affirm as to the remaining three claims (improper bolstering of a witness,
misstatement of the evidence, and argument as to consciousness of guilt) without
further discussion.
                                           2
is fairly susceptible of being interpreted as referring to, a defendant’s failure to

testify is error and is strongly discouraged.” State v. Marshall, 476 So. 2d 150, 153

(Fla. 1985). See also Fla. R. Crim. P. 3.250 (entitled “Accused as Witness” and

providing: “In all criminal prosecutions the accused may choose to be sworn as a

witness in the accused's own behalf and shall in that case be subject to examination

as other witnesses, but no accused person shall be compelled to give testimony

against himself or herself, nor shall any prosecuting attorney be permitted before

the jury or court to comment on the failure of the accused to testify in his or her

own behalf”).

      However, a more expansive review of the transcript reveals that the

prosecutor was not attempting to point out why the defendant was not “on the

stand,” but instead was arguing why the defendant was on trial.

      The defense, during its closing, argued that the State was improperly relying

upon innocent conduct (e.g., changing his clothes and cutting his dreadlocks) to

prove its case. The defense argued that this conduct was not illegal and should not

be relied upon as evidence of guilt. The State in its rebuttal was responding to this

defense argument.     Here is a more complete excerpt of the State’s rebuttal

argument:

      PROSECUTOR: [Defense counsel] says that paying to stay at a
                  hotel is not against the law. Paying to change your
                  clothes and put clothes on is not against the law.



                                         3
                          Dreadlocks are not against the law. Cutting your
                          dreadlocks off is not against the law.

      DEFENSE:            Objection, Your Honor. Motion.

      PROSECUTOR: Shooting somebody is. He is not on the stand
                  because he paid for a hotel room.

      DEFENSE:            Objection. Motion.

      COURT:              Overruled.

      PROSECUTOR: He is not sitting here as a defendant because he
                  paid for a hotel room. He is not sitting here before
                  you because he changed his clothes. He’s sitting
                  here before you because he shot and killed [the
                  victim].

      (Emphasis added.)

      Even if the trial court erred in overruling the initial objection, we conclude

that such error was nevertheless rendered harmless by the State’s immediate

corrective action, telling the jury that the defendant was not “sitting here” because

of innocent conduct, but rather was “sitting here” because of the act in shooting

and killing the victim. Under these circumstances, the prosecutor’s isolated slip of

the tongue,2 followed by an immediate correction, was not fairly susceptible of

being interpreted by the jury as a comment on the defendant’s failure to testify.

2 We note that the statement, “[h]e is not on the stand because he paid for a hotel
room,” does not even make sense, and the only reasonable conclusion, under the
circumstances and in light of the prosecutor’s immediate correction, is that the
prosecutor simply misspoke and intended to say “[h]e is not on trial because he
paid for a hotel room.” The trial court reached this very conclusion in denying the
defense’s motion for mistrial following the conclusion of the closing arguments.
                                         4
We therefore conclude that any error in overruling the initial objection was

harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.

1986).

     Affirmed.




                                     5
