        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                   JULIE MICHELE KALIVRETENOS,
                             Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D18-2920

                              [June 24, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No.
15-014862CF10A.

   Jason T. Forman of the Law Offices of Jason T. Forman, P.A.,
Fort Lauderdale, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Julie Michele Kalivretenos (“Defendant”) appeals her conviction for
burglary of a dwelling. She argues: (1) the trial court erred in allowing the
State to comment on, and elicit testimony regarding, her post-Miranda
right to silence; (2) defense counsel was ineffective for failing to object to
testimony that Defendant requested a lawyer; and (3) defense counsel was
ineffective for failing to request an affirmative defense instruction on the
burglary offense. Finding error in allowing comments and testimony on
Defendant’s post-Miranda right to silence, we reverse and remand for a
new trial. In light of our holding, the second issue is moot. As to the third
issue, we conclude that, based on the evidence at trial, Defendant was not
entitled to an affirmative defense instruction and there was no error in the
jury instructions. Accordingly, we affirm on that issue without further
comment.

   By way of background, Defendant and the victim are former paramours.
One evening, while the victim was away on vacation, video surveillance
showed Defendant entering the victim’s house and making several trips
from the house to her car. The victim alleged several guitars and a watch
were stolen. The property allegedly stolen was never recovered, and it was
not discernable from the video what exactly Defendant removed from the
house.

    Based on the video surveillance recording, Defendant was questioned
by detectives. After Defendant was informed of her Miranda rights and
agreed to talk to detectives, she admitted to entering the victim’s house to
gather the remainder of her belongings. When detectives asked Defendant
what items, specifically, she took from the house, she refused to answer
and requested a lawyer. Defendant was thereafter charged with one count
of first-degree grand theft for taking the guitars and/or a watch valued
over $100,000 and one count of burglary of a dwelling.

   Defendant subsequently moved to suppress all statements made to the
detectives, but the trial court denied the motion. During a pre-trial
hearing to address several pending motions, the trial court inquired as to
whether the State intended to introduce any of Defendant’s post-Miranda
statements. During the hearing, the State agreed to only introduce
Defendant’s limited statement that she went to the victim’s house to
retrieve her belongings: “[t]he only statement I’m introducing is when she
talked to the detective. I don’t remember if she was in custody or not. She
said, ‘I went to the house, I got my stuff out, that’s it.’” Defense counsel
agreed that this was the only statement to be introduced.

   Despite that agreement, during both opening statement and closing
argument, the State was permitted to comment, over objection, that when
asked by detectives what items she took from the victim’s house,
Defendant refused to answer. Also, during direct examination of one of
the interrogating detectives, testimony was elicited that Defendant
admitted “she had gone to the house that night and that she went inside
to get some things” but when asked what items she took “she asked for
her lawyer.” 1 At the close of the State’s case, Defendant moved for a
judgment of acquittal. The trial court granted a judgment of acquittal on
the first-degree grand theft count as it relates to the guitars only, finding
that the surveillance video did not show any guitars were taken, and
reduced that count to third-degree grand theft of the watch. Defendant
was ultimately acquitted of the third-degree grand theft count, found guilty

1Defense counsel did not object to the testimony elicited. Defense counsel did,
however, object to the State’s comments in opening statement and closing
argument on the basis that the comments violated the parties’ pre-trial
agreement to limit introduction of Defendant’s statements. We find that these
objections, as well as the parties’ pre-trial discussions before the presiding judge,
sufficiently preserved the issue.

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of the burglary of a dwelling count, and sentenced to twenty-one months
in prison followed by two years of probation.

    The State is not permitted to “comment on a defendant’s postarrest
silence.” State v. Hoggins, 718 So. 2d 761, 769 (Fla. 1998); accord Ferrari
v. State, 260 So. 3d 295, 312 (Fla. 4th DCA 2018). This 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.” Hoggins, 718 So. 2d at 769. “[A]ny remark which is ‘fairly
susceptible’ of being interpreted as a comment on silence creates a ‘high-
risk’ of error.” Dean v. State, 690 So. 2d 720, 724 (Fla. 4th DCA 1997)
(citations omitted); see also Dixon v. State, 627 So. 2d 19, 20 (Fla. 2d DCA
1993) (recognizing that comments which are “fairly susceptible” of being
interpreted as comments on silence are generally reversible error).

   Here, the trial court erred by allowing the State to breach the pre-trial
agreement that it would seek to admit only Defendant’s statement that she
entered the victim’s house to retrieve her personal belongings. This error
was compounded by the fact that the comments that followed, that
Defendant refused to say what items she took and requested a lawyer,
were more than “fairly susceptible” of being interpreted as a comment on
Defendant’s right to remain silent. We find such comments violated
Defendant’s right to silence and should have been excluded from both
evidence and argument. See State v. Horwitz, 191 So. 3d 429, 445
(Fla. 2016) (concluding that “[t]here [was] no question . . . that the State
directly commented on [the defendant’s] silence” by eliciting testimony
from officers that the defendant “didn’t answer” when asked about what
had happened immediately after the incident); Senn v. State, 947 So. 2d
596, 597 (Fla. 4th DCA 2007) (“A comment on a defendant’s request for an
attorney may be construed as a comment on a defendant’s invocation of
his right to remain silent, even after he has answered some questions.”);
Parker v. State, 124 So. 3d 1023, 1026 n.2 (Fla. 2d DCA 2013) (explaining
that a detective’s response that defendant “just didn’t answer the question”
was an improper comment on defendant’s right to remain silent).

   We also conclude that the error was not harmless for several reasons.
See State v. DiGuilio, 491 So. 2d 1129, 1135–36 (Fla. 1986). First, the
State’s case was largely based on circumstantial evidence, and Defendant
was acquitted of the grand theft charge. See Smith v. State, 681 So. 2d
894, 895 (Fla. 4th DCA 1996) (“Comments on a defendant’s right to silence
are not harmless where the evidence against the defendant is not ‘clearly
conclusive.’” (quoting Fundora v. State, 634 So. 2d 255, 256 (Fla. 3d DCA
1994))); First v. State, 696 So. 2d 1357, 1358 (Fla. 2d DCA 1997)
(where defendant was found not guilty of two other charges and witness

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testimony provided an alibi, the court found State’s improper comment
during opening statement was not harmless error as all evidence was
circumstantial). Second, the State agreed pre-trial not to introduce the
Defendant’s statement at issue. It is more than speculation to assume
that this agreement impacted defense counsel’s trial preparation and
strategy. And finally, the statements were prejudicial to Defendant
because, in context, they suggested a consciousness of guilt. See Carr v.
State, 561 So. 2d 617, 619 (Fla. 5th DCA 1990) (holding that the comments
on silence “unfairly created an inference of guilt”). For all of the foregoing
reasons, Defendant is entitled to a new trial.

   Reversed and remanded for a new trial.

LEVINE, C.J., and KUNTZ, J., concur.

                            *          *        *

   Not final until disposition of timely filed motion for rehearing.




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