MICHAEL HOSANG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Hosang appeals his convictions for attempted robbery with a firearm and burglary while armed with a firearm. The Fourth District Court of Appeal reversed his convictions, finding that the prosecutor made improper remarks during closing argument by arguing facts not in evidence regarding when Hosang obtained tattoos, and that the jury instructions and verdict form were unclear about the timing requirement for firearm possession.
Yes. The court reversed on both grounds. The prosecutor's remarks in closing argument were improper because they asked the jury to infer facts not presented in evidence, and because this was a contested identification case, the error was not harmless. Additionally, the verdict form and jury instructions were unclear as to when Hosang was required to possess the firearm.
[1] A prosecutor's closing argument must be confined to the facts and evidence presented to the jury and all logical deductions therefrom.
[2] A prosecutor's improper remarks during closing argument constitute reversible error when the case involves contested identification and the error is not harmless.
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Join FLexlaw to unlock all legal intelligence“But attorneys must "confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence."”
Establishes the legal standard for proper closing argument—arguments must be based on evidence or logical deductions, not facts not presented
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Join FLexlaw to unlock all legal intelligenceThis case arose from a home invasion robbery. During closing argument, the prosecutor argued that Hosang obtained tattoos 18 months after the crime, s…
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POLEN, J.
Appellant Michael Hosang timely appeals convictions of attempted robbery with a firearm and burglary while armed with a firearm. He argues that the trial court erred in (1) denying his motions for mistrial and new trial based on the state’s improper remarks during closing argument, and (2) denying his motion for new trial where the verdict form was flawed and the jury instructions were confusing. We reverse on both grounds.
This case grew out of a home invasion robbery. During closing argument, defense counsel objected to the state’s argument:
THE STATE: The defense tried to make a big deal about this defendant having tattoos on his hand and none of the witnesses noticing. Two important things about that that you need to understand. First of all, if someone is holding a gun to someone’s head, are you going to be focused on the tattoos or on the barrel of the gun. And Alex and Gail Rybak told you they were focused on the barrel of the gun. Secondly, if you notice what was mysteriously left out of the testimony of this defendant, when did he get those tattoos? This is 18 months later. That was never brought out. You wonder why was that not brought out? And I’ll tell you why. Because he got those after. He got them after, ladies and gentleman.
DEFENSE COUNSEL: Objection, facts not in evidence.
THE COURT: The jury will recall what the evidence was in the case.
Defense counsel moved for mistrial, arguing that the state’s comments about Hosang’s tattoos could lead the jury to infer that the state had knowledge of when Hosang received the tattoos. The trial court denied the motion, suggesting that “whatever happened is one of those things that happens during closing arguments, and I’m sure the jury heard the evidence and there was no evidence presented that he got those tattoos afterward.... ”
Wide latitude is permitted in arguing to a jury. Moore v. State, 701 So. 2d 545, 551 (Fla.1997) (citing Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982)). But attorneys must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) (citing Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993)).
We hold that the state’s remarks in closing argument were improper. See Spoor v. State, 975 So. 2d 1233 (Fla. 4th DCA 2008); Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997). As this was a contested identification case, the error was not harmless.
In addition, Hosang argues that the jury instructions and verdict form were not clear as to when Hosang was required to have possessed a firearm. He claims this allowed the jury to find that Hosang possessed a firearm at some time other than during the commission of the attempted robbery or burglary, especially when there was evidence that Hosang possessed a firearm the day after the offenses.
As we are reversing on the first ground, we additionally reverse on this ground and note that the trial court should explicitly set out everything on the verdict form, including the reference to Hosang possessing the firearm during the commission or attempt to commit the robbery or burglary.
Reversed and remanded for a new trial.
WARNER and TAYLOR, JJ., concur.
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Jackson v. State, 89 So. 3d 1011 (Fla. 4th DCA 2012)…titude in arguing to a jury. Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982). However, “attorneys must ‘confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.’ ” Hosang v. State, 984 So. 2d 671, 672 (Fla. 4th DCA 2008) (quoting Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998)). When evaluating a prosecutor’s comment, the comment “should be examined in the context in which it is made.” Lubin v. State, 963 So. 2d 822, 824 (Fla.…
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R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53 (Fla. 4th DCA 2016)…ement through attacks on a party or opposing counsel’s character or morals. Such tactics are decidedly improper and can cause prejudicial misdirection of the jurors’ attention when those character traits are not in issue. See, e.g., Hosang v. State, 984 So. 2d 671, 672 (Fla. 4th DCA 2008) (“[Attorneys must ‘confine their argument to the facts and evidence' presented to the jury and all logical deductions from the facts and evidence.’ ” (quoting Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998))).…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So. 2d 1 (Fla. 1982)
- McArthur Breedlove v. State, 413 So. 2d 1 (Fla. 1982)
- Moore v. State, 701 So. 2d 545 (Fla. 1997)
- Knoizen v. Jenina M. Bruegger, 713 So. 2d 1071 (Fla. 5th DCA 1998)
- Venning v. Oradell ROE, 616 So. 2d 604 (Fla. 2d DCA 1993)
- Colsson D. Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997)
- 1611 Euclid Ave., Inc. v. Ritter, 975 So. 2d 1233 (Fla. 3d DCA 2008)
- Spoor v. State, 975 So. 2d 1233 (Fla. 4th DCA 2008)