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Brown v. State

Florida Court of Appeals, First District

April 18, 2018

Brenden Brown, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Mark Borello, Judge.

          Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.

          Jay, J.

         Appellant was tried on the charge of armed robbery. The jury found him guilty as charged. On appeal, he raises four points for reversal. We find no error under any of the points and affirm on all four. We write only to address our affirmance on Point II because the relevant facts exemplify a permissible use of rebuttal argument in a criminal trial.

         Under Point II, Appellant claims that the trial court erred when it denied defense counsel's request during closing arguments to respond to the State's rebuttal argument. Counsel maintained that the prosecutor's statements in her rebuttal argument improperly transcended the scope of the defense closing argument, and the trial court's failure to give defense counsel an opportunity to respond was similar to the denial of a re-cross examination when a new matter is raised on redirect.

         We review a trial court's ruling on the propriety of closing argument for an abuse of discretion. See Cardona v. State, 185 So.3d 514, 520 (Fla. 2016). In the present case, we are not persuaded by Appellant's argument that the trial court abused its discretion. Instead, we view the prosecutor's rebuttal as a fair comment on defense counsel's closing. Our reasoning is set forth below.

         The evidence at trial established that two men robbed the victim at gunpoint in the late night hours of December 19, 2015. While one of the robbers held a gun on the victim, the other robber grabbed her purse to find the keys to her car. Once it became clear that the keys were not in her purse-and because her screams for help were growing louder-the robbers settled on taking the victim's wallet, which contained a single dollar bill. They kept the dollar, but threw away the gun and the wallet after they fled. Neither item was recovered.

         The police quickly responded to the scene of the crime, and the victim gave a clear description of the robbers' distinct attire. Within moments of a be-on-the-look-out ("BOLO") alert, another officer apprehended two men fitting the victim's description a half mile from the scene of the robbery. The initial responding officer drove the victim to where the men were being detained to conduct a "show-up." The victim was able to directly identify one of the men by both his attire and his face, but was only able to identify the second man by his attire. Appellant was that second man. Both men were taken into custody and interviewed by a robbery detective. During Appellant's interview, he admitted to having been with the other man-Derrick Matthews-earlier in the evening, smoking marijuana, but he denied being with Matthews when the robbery occurred.

         At Appellant's trial, Derrick Matthews appeared as the State's key witness, having already pleaded guilty to the robbery. Matthews testified that Appellant was the man who had held the gun on the victim while directing Matthews to take her purse. Also testifying for the State was Detective Blankinchip, who revealed that after he had interviewed Appellant, he placed Appellant and Matthews alone together in an interview room that was wired for audio, allowing Detective Blankinchip to listen to their conversation. The detective testified that he heard Appellant tell Matthews: "Don't say sh*t."

         During his closing argument, defense counsel urged the jury to place little weight on Derrick Matthews' testimony, insinuating that in exchange for his cooperation in incriminating Appellant, the State would argue on Matthews' behalf for a light sentence. As for Detective Blankinchip's testimony, counsel had this, and only this, to say:

Then the State called Officer Blankinchip and he [Appellant] honestly admitted that he was with Derrick Matthews earlier in the day smoking marijuana, but he didn't say anything about the subject incident. There's no confession or admission there. And Detective Blankinchip kind of sneered when he talked about my client Brenden Brown's refusal to talk any further. But he had to admit [on cross-examination], there's a lot of innocent people that wisely choose not to talk to the police. So you can't take any error for anything with somebody using their good judgment and not talking with a law enforcement officer. Maybe wait until they get a lawyer.

         Counsel briefly discussed the remaining evidence and then exhorted the jury not to convict Appellant because the whole of the State's case depended on "Derrick Matthews' testimony, and he [was] a ...

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