Paulen v. State

DAUKSCH, Judge. A manslaughter conviction is appealed. We reverse. Appellant is accused of having killed a person by driving his automobile into her while he was under the influence of intoxicating liquor. At trial a policeman was asked “. . . when you advised him of his Miranda warnings, did he make any statements to you?” Policeman: “As I recall, at that time he didn’t.” It came out that Appellant later voluntarily made statements in regard to the accident and his activities before the accident. In Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), it was held that it is improper to allow testimony concerning an accused’s silence after Miranda warnings. It is fundamental, constitutional error incapable of being rendered harmless by later events. See also Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); especially Judge Dow-ney’s special concurrence which indicates the facts there are quite on point. Appellant must be afforded a new trial. REVERSED and REMANDED. CROSS, J., concurs. ALDERMAN, C. J., dissents with opinion.