JOSEPH HORNA
v.
THE STATE OF FLORIDA
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Prosecutor's comments in closing argument describing defendant's driving as 'frightful,' 'erratic, horrendous, and quite honestly scary' did not constitute fundamental error because the comments were tethered to the dash cam footage and designed to refute the defense theory rather than impermissibly inflame the jury's emotions.
[1] Prosecutorial comments during closing argument must be considered in the context of the entire record and the closing argument as a whole.
[2] Prosecutorial comments are not improper when they are tethered to evidence presented and designed to refute a defense theory.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such an error 'reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'”
Citing Smith v. State, 320 So. 3d 20, 27 (Fla. 2021) on the standard for fundamental error in prosecutor's comments
Joseph Horna was convicted of driving under the influence in violation of Florida Statutes § 316.193(1). During closing argument, the prosecutor descr…
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Third District Court of Appeal
State of Florida
Opinion filed November 8, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1281 Lower Tribunal No. A772T5E
________________
Joseph Horna,
Appellant,
vs.
The State of Florida,
Appellee. An appeal from the County Court of Miami-Dade County, Jeffrey M. Kolokoff, Judge. Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee. Before LINDSEY, MILLER, and LOBREE, JJ. MILLER, J.
Appellant, Joseph Horna, appeals from his conviction for one count of driving under the influence, in violation of section 316.193(1), Florida
Statutes (2022). On appeal, he contends unobjected-to, improper comments in closing argument constitute reversible error. In the challenged comments,
the prosecutor described his driving pattern as “frightful[,] . . . erratic,
horrendous, and quite honestly scary” and characterized his traffic stop as necessary for the safety of the officer and public. While it is true the prosecution must refrain from “impermissibly inflam[ing] the passions and prejudices of the jury with elements of emotion and fear,” Brooks v. State,
762 So. 2d 879, 900 (Fla. 2000), it is equally true that any allegedly improper comments must be considered within the context of both the closing argument as a whole and the entire record. See Sweeting v. State, 260 So. 3d 520, 525 (Fla. 3d DCA 2018). Here, the comments were tethered to the dash cam footage and designed to refute the defense theory that Horna was emotionally distressed, rather than under the influence, when he was apprehended. Under these circumstances, we reject the assertion of fundamental error. See Smith v. State, 320 So. 3d 20, 27 (Fla. 2021) (“Such an error ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (quoting Knight v. State, 286 So. 3d 147, 151 (Fla. 2019));
see also Cruz v. State, 320 So. 3d 695, 720 (Fla. 2021) (imputing no fundamental error in prosecutor describing crime as “brutal” and stating, “[i]t's the kind of crime that frightens you to your core. It's the reason that children fear the darkness. It's why people have locks on their doors and keep guns for protection.”); Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006) (“A prosecutor’s comments are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same subject.”); Ferguson v. State, 417 So. 2d 639, 642 (Fla.
1982) (finding no impropriety in prosecutor’s comment “made on rebuttal in response to the theory presented by the defense during its closing argument”); Scott v. State, 66 So. 3d 923, 930 (Fla. 2011) (holding prosecutor’s statements addressing defendant’s theory was invited response). Accordingly, we affirm.
Affirmed.
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Citator
Cited By (15 total)
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Boatman v. State, 364 So. 3d 1005 (Fla. 2024)…a material one. Boatman takes issue with “the number of [autopsy] pictures" (and one x-ray) admitted during the medical examiner's testimony. The seven or so photos, which showed separate injuries, were not unfairly prejudicial. See Smith v. State, 320 So. 3d 20, 30-31 (Fla. 2021) (holding that trial court did not abuse its discretion in allowing twenty-six autopsy photos—most of which “identified separate injuries on [the victim's] body"-to be introduced during medical examiner's testimony). Boatman also…
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Horna v. State, 320 So. 3d 20 (Fla. 3d DCA 2023)…ash cam footage and designed to refute the defense theory that Horna was emotionally distressed, rather than under the influence, when he was apprehended. Under these circumstances, we reject the assertion of fundamental error. See Smith v. State, 320 So. 3d 20, 27 (Fla. 2021) (“Such an error ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (quoting Knight v. State, 286 So. 3d 147, 151 (…
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Granville Ritchie v. State, 344 So. 3d 369 (Fla. 2022)…the facts set forth above, supports his conviction for the first-degree murder of F.W., under both theories of premeditated and felony murder. -8- cumulatively, the comments we determine are improper amount to fundamental error. See Smith v. State, 320 So. 3d 20 , 27 (Fla. 2021) (“If an issue is not preserved, it is reviewed only for fundamental error.”); see also Braddy v. State, 111 So. 3d 810, 838 (Fla. 2012) (reviewing whether “the cumulative effect of those unpreserved comments in which we identif[ed]…1 / 2
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brooks v. State, 762 So. 2d 879 (Fla. 2000)
- Ferguson v. State, 417 So. 2d 639 (Fla. 1982)
- Walls v. State, 926 So. 2d 1156 (Fla. 2006)
- Scott v. State, 66 So. 3d 923 (Fla. 2011)
- Knight v. State, 286 So. 3d 147 (Fla. 2019)
- Cruz v. State, 320 So. 3d 695 (Fla. 2021)
- Horna v. State, 320 So. 3d 20 (Fla. 3d DCA 2023)
- Sweeting v. State, 260 So. 3d 520 (Fla. 3d DCA 2018)