State of Florida v. Donna Horwitz, No. SC15–348 FL Supreme Court

May 05, 2016

OUTCOME: 1st degree murder with a firearm conviction reversed and remanded

WHETHER, UNDER FLORIDA LAW, THE STATE IS PRECLUDED FROM INTRODUCING EVIDENCE OF A DEFENDANT'S PRE–ARREST, PRE-MIRANDA SILENCE WHERE THE DEFENDANT DOES NOT TESTIFY AT TRIAL? Donna Horwitz was convict ... ed of first-degree murder with a firearm for the death of her ex-husband, Lanny Horwitz. During the trial, the State repeatedly elicited testimony from law enforcement witnesses that the defendant remained silent following the murder but prior to her formal arrest. The State then emphasized this silence in closing argument by arguing that the jury could consider the defendant's pre-arrest, pre-Miranda silence as evidence of her consciousness of guilt. The Fourth District, in reversing the conviction, held that under our precedent in State v. Hoggins, 718 So.2d 761 (Fla.1998), because the defendant did not testify at trial, the use of the defendant's pre-arrest, pre-Miranda silence was precluded as a matter of state constitutional and evidentiary law. Horwitz, 2015 WL 671136, at *4. We answer the certified question in the affirmative and hold that the use of the defendant's silence as substantive evidence of guilt violates the defendant's right against self-incrimination under the Florida Constitution. And as a matter of Florida evidentiary law, the State is precluded from presenting evidence of a non-testifying defendant's pre-arrest, pre-Miranda silence and from arguing that silence is evidence of the defendant's consciousness of guilt. On state constitutional grounds, the use of a defendant's silence as substantive evidence of guilt when the defendant does not testify penalizes the defendant's exercise of his or her constitutional privilege against self-incrimination at trial. As a matter of Florida evidentiary law, a defendant's pre-arrest, pre-Miranda silence is generally deemed ambiguous, and any probative value is “substantially outweighed by the danger of unfair prejudice” pursuant to section 90.403, Florida Statutes (2013). We therefore approve the decision of the Fourth District reversing Horwitz's conviction and remanding for a new trial.