Is Stating the Number of People Who Testified Considered a Comment on the Defendant's Failure to Testify ?

In State v. Marshall, 476 So. 2d 150, 153 (Fla. 1985), we concluded that the prosecutor erred by stating in closing that "the only person you heard from in this courtroom with regard to the events on November 9, 1981, was [the one witness to the crime]." 476 So. 2d at 151. In Marshall, the State argued that the prosecutor's remarks constituted a comment on the evidence before the jury. As explained by the Fourth District's opinion, "since only two people witnessed the events in question, and one of those chose not to testify, we cannot accept the state's argument that the prosecutor's remarks amounted to nothing more than a comment on 'the evidence as it existed before the jury.'" Marshall v. State, 473 So. 2d 688, 689 (Fla. 4th DCA 1984). "'A constitutional violation occurs . . . if either the defendant alone has the information to contradict the government evidence referred to or the jury 'naturally and necessarily' would interpret the summation as a comment on the failure to testify.'" Id. at 689 (quoting United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977)). In Marshall, we agreed with the Fourth District that "the prosecutor's comments impermissibly highlighted the defendant's decision not to testify." 476 So. 2d at 153 (quoting Marshall, 473 So. 2d at 689). In Heath v. State, 648 So. 2d 660, 663 (Fla. 1994), the only witnesses to the decedent's murder were the decedent, the defendant, and the defendant's brother, we concluded that it was improper for the prosecutor to state in the opening statement that the defendant's brother would be the only one to testify as to what occurred. 648 So. 2d at 663. As in Marshall, we found these comments were "fairly susceptible of being interpreted by the jury as a comment on the defendant's failure to testify." Id.; See also Dailey v. State, 594 So. 2d 254, 257-58 (Fla. 1991) (prosecutorial comments "virtually indistinguishable" from the comments in Marshall were error); State v. Kinchen, 490 So. 2d 21, 22 (Fla. 1985) (prosecutor's comment that the defendant's out-of-court statements were "unrefuted" was fairly susceptible to being considered a comment on the defendant's failure to testify).