State v. Lopez

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION DATED DECEMBER 18, 2004, IS HEREBY WITHDRAWN

PERRY, Judge.

Jose Lopez appeals from his judgment of conviction for aggravated battery and use of a firearm during the commission of a felony. Lopez contends that his due process rights were violated when the prosecutor, on cross-examination and during closing argument, impermissibly referred to Lopez’s pre-Miranda 1 and post-Miranda silence. For the reasons set forth below, we vacate.

I

FACTS AND PROCEDURE

In the early hours of a mid-April morning, Lopez spotted his pickup, which had been missing, outside a…