Implications of Error That Is Proven Harmless by the State on the Verdict
In State v. DiGuilio, 491 So. 2d 1129, 1131 (Fla. 1986), the court explained that improper comments on a defendant's invocation of his right to remain silent are subject to a harmless error analysis. See: 491 So. 2d at 1137.
This Court explained the proper test that appellate courts must apply when performing a harmless error analysis:
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. Id. at 1139; see also: Jones v. State, 748 So. 2d 1012, 1021-22 (Fla. 1999).
Application of the harmless error test "requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." DiGuilio, 491 So. 2d at 1138.