Newman v. State
The Fifth DCA affirmed a lewd-or-lascivious battery conviction, rejecting the defendant's claim that a detective's testimony about his 'hesitation' before consenting to a DNA buccal swab was an improper comment on his right to remain silent. The court held that because the defendant voluntarily cooperated with the noncustodial investigation and ultimately consented, testimony about his brief hesitation did not implicate the Fifth Amendment privilege, and any error would have been harmless given the overwhelming DNA evidence.
Key facts
- Newman was charged with lewd-or-lascivious battery; a detective testified that Newman hesitated briefly before consenting to a DNA buccal swab during a noncustodial investigation.
- The trial court convicted Newman, and he appealed, arguing the detective's testimony about his hesitation improperly commented on his Fifth Amendment right to remain silent.
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Why it matters
This opinion gives Florida practitioners a clear, citable analogy (drawing on Salinas v. Texas, an Oregon Supreme Court case, and the Florida Supreme Court's Braddy decision) for distinguishing between a defendant's… — full analysis with a trial
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