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545 So. 2d 913

545 So.2d 913

14 Fla.L.Weekly 1059

Carter v. State

District Court of Appeal of Florida · decided 1989-04-26

Relies on 538 So. 2d 936 - Freeman v. State

Decided 1989-04-26

DANAHY, Acting Chief Judge.

¶1A jury found the appellant and a code-fendant, Ernest Freeman, Jr., guilty of trafficking in cocaine and conspiracy to traffic in cocaine. Freeman was also found guilty of possessing cocaine and marijuana.

¶2The appellant and Freeman filed separate appeals from their resulting convictions. Freeman’s appeal was heard first by another panel of this court which reversed and remanded for a new trial. Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989). Two trial errors identified in Freemanalso appear with respect to the instant appeal. As in Freeman, we reverse the appellant’s conviction because of those errors and remand for a new trial.

¶3The first error occurred when the state was permitted to elicit testimony from two different detectives which, as in Freeman, is fairly susceptible of being viewed as an improper comment upon the appellant’s right to remain silent. We fully adopt our reasoning in Freemanthat the state has failed to meet its burden of convincing this court that the improper comments upon the appellant’s right to remain silent constituted harmless error.

¶4In Freeman, this court recounted testimony of a confidential informant which was permitted over the objection of the appellant as well as of Freeman. We will not repeat that testimony here; as in Freeman, we find that the state has offered us nothing from which we are able to conclude that the confidential informant’s testimony did not prejudice the appellant’s right to a fair trial.

¶5For the foregoing reasons, we reverse and remand for a new trial.

HALL and ALTENBERND, JJ., concur.
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