the prosecutor properly argued to the jury that the appellant's alibi was unsupported by the evidence and no burden shifting occurred
How later courts described this case
- the prosecutor properly argued to the jury that the appellant's alibi was unsupported by the evidence and no burden shifting occurred
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
Specially Concurring.
[ 1 I agree with the decision to affirm this case. I write to clarify one point regarding *1241 the introduction at trial of evidence relating to the Medical Exammers office's lack of accreditation.
12 The issue addressed by this Court in this case is whether Dr. Yacoub's testimony was inadmissible because the Medical Examiner's office is not accredited. I agree that the admissibility of evidence such as Dr. Yacoub's testimony is not determined by whether the Medical Examiner's office is subject to the accreditation provisions of The Forensic Laboratory Accreditation Act. The court's conclusion that "as long as the requirements of Title 68 are met in each case, accreditation of the Medical Examiner's office goes to the weight of the evidence, not its admissibility" is also correct. It is worth mentioning, however, that the admissibility of this evidence must always be prefaced upon a threshold finding of relevancy. This Court's ruling does not in any way suggest or support the assumption that evidence regarding accreditation of the Medical Examiner's office will always be relevant.
LEWIS, J.,
Specially Concurs.
T1 I write separately to emphasize my views on the improper use of a defendant's exercise of a constitutional right. 'The opinion undertakes a thorough analysis and finds persuasive authority indicating that improper comment on the exercise of a constitutional right is error. The Opinion, however, instead of making a strong stand on the impropriety of such comment, creates an "assuming arguendo" scenario which emphasizes the lack of prejudice in this case.
2 Evidence that a defendant has properly exercised a right to refuse consent to a war-rantless search should in no way be used as a negative inference against that defendant. 1 The prosecution used Bosse's exercise of his Fourth Amendment right to refuse consent to a full search as evidence of guilt. If there is any doubt about the prosecution's intended use of Bosse's refusal, one must look no further than the closing argument, where the prosecution argued that his only motivation in not allowing officers to thoroughly search his vehicle without a warrant was his guilt. 'The error is unequivocally clear in this case, and the Opinion should be equally unequivocal in its conclusion.
13 Fortunately for the prosecution, the constitutional error committed in this case is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967). Bosse allowed officers to photograph the contents of his vehicle, and then he disposed of the contents before the officers obtained a warrant. 2 This admissible evidence revolving around the search, and other evidence of Bosse's guilt, was overwhelming. Future cases, however, may not have such overwhelming evidence, and violations of these principles could jeopardize future convictions.
. The cases supporting this holding are thoroughly cited in the Opinion and will not be repeated here.
. Although Bosse's actions were admissible and indicate guilt, a defendant should not be subject to an adverse inference based solely on the ineptitude of law enforcement, and their failure to preserve evidence by proper means not in conflict with the Fourth Amendment warrant requirement.