       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 25, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2288
                         Lower Tribunal No. 09-28442
                             ________________


                                Robert Brown,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.


Before SHEPHERD, C.J., and EMAS and SCALES, JJ.

      SHEPHERD, C.J.
        Robert Brown appeals his conviction and sentence for trafficking in cocaine,

asserting as error the State’s cross-examination of Brown at trial and later closing

argument, questioning why he waited until trial – four years after the date of the

crime – to divulge the name of the alleged actual owner of the contraband.

Because Brown invoked his right to remain silent, pursuant to Miranda v. Arizona,1

when he was arrested at the scene of the crime and never waived that right during

the ensuing four years, we find, as the State has admirably conceded, that the

prosecution’s questioning and argument were in error and shifted the burden of

proof to Brown to prove his innocence. See State v. Smith, 573 So. 2d 306, 317

(Fla. 1990) (“Our cases have made clear that courts must prohibit all evidence or

argument that is fairly susceptible of being interpreted by the jury as a comment on

the right of silence.”); see also, U.S. Const. amend. V (“No Person … shall be

compelled in any criminal case to be a witness against himself); Art. I, § 9, Fla.

Const. (“No person shall … be compelled in any criminal matter to be a witness

against oneself.”). We note that in this regard, we have considered the State’s

harmless error argument and are unable to conclude the error was harmless beyond

a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

        Reversed and remanded for a new trial.




1   384 U.S. 436 (1966).

                                          2
