        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          DONOVAN M. HENRY,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-303

                           [September 12, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 502015CF012851A.

   James S. Lewis, Fort Lauderdale, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   The sale of a small amount of marijuana from one college student to
another took a deadly turn when Appellant Donovan Henry arrived at the
apartment of Nicholas Acosta, accompanied by several other individuals,
one of whom was carrying a firearm. Although the testimony differs as to
whether Appellant’s original intention was a drug deal or a drug steal, the
interaction ultimately ended in the fatal shooting of Mr. Acosta (“the
victim”). Appellant was convicted of second degree murder with a firearm,
burglary with a firearm, and robbery with a firearm.

   Appellant appeals the conviction (for which he was given a prison
sentence of thirty-five years), raising three specific challenges as well as a
claim of cumulative error. We affirm on all issues, writing solely to address
Appellant’s contention that statements made by the prosecution at trial
constituted reversible error.

                                Background

  Both Appellant and the State agree that Appellant knew the victim and
had arranged to purchase “some weed” from him. Appellant and four other
young men (three of whom were co-defendants) went to the victim’s
university apartment. Appellant testified that his intention was merely to
purchase marijuana. He said he did not learn that the three co-defendants
intended to rob the victim until they had arrived at the apartment, and
one of the co-defendant’s pointed a gun at Appellant, and demanded that
Appellant go along with the robbery. Appellant further testified that a few
seconds after he and the fourth man were invited into the victim’s
apartment by the victim’s girlfriend, the three co-defendants, who wore
masks, rushed through the door and the co-defendant with the gun
ordered everyone to get on the floor. Appellant testified that he complied
and got on the floor. The victim did not get on the floor and was shot twice
and killed by the armed co-defendant. The five men then left the
apartment, taking the marijuana with them.

   The defense strategy at trial was to impress upon the jury that it was
nonsensical for Appellant, a college student, to plan to rob an
acquaintance and fellow student who would be able to identify him. The
defense argued that Appellant’s limited participation in the crimes charged
was under duress.

    Testimony from the State’s witnesses contradicted Appellant’s account.
A co-defendant 1 testified that Appellant had initiated the plan to rob the
victim, and knew about the gun beforehand. This co-defendant testified
that he overheard Appellant telling one of the other men involved that he
did not need to shoot the victim, but could use the gun to beat him. The
victim’s girlfriend, who witnessed the shooting, testified that Appellant did
not get on the ground, but instead joined the shooter and others in yelling
at the victim to get on the ground. The State also presented the testimony
of a classmate of Appellant’s who stated that Appellant had asked him and
others on two different occasions if they knew of any marijuana dealers
because he (Appellant) and a friend “wanted to buy some weed or buy
larger amounts of weed to rip them off.”

   In closing, the State painted Appellant as the mastermind of the
robbery. The tone of the State’s closing argument was set at the start:

      Members of the jury, as Cesar [sic] laid dying, killed by people
      that he trusted, people that he thought were his friends, [he]
      cried out Et tu, Brute? Betrayal and greed, that’s what killed
      Cesar [sic]. And it’s the same betrayal and greed that you,
      Donovan Henry, the Defendant in this case, had and why

1This co-defendant testified in exchange for being permitted to plea to second-
degree murder, rather than first-degree murder.

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      Nicholas Acosta is dead. Nothing more.

      ....

      When you set it up and you get the gang together, and you go
      there to do it and you pull it off, and you end up shooting and
      killing a person, you are responsible.

On appeal, Appellant references the above comment, and several others
made by the prosecution during cross-examination and closing, which
Appellant argues were “disparaging and prejudicial” and that, collectively,
were so extensive that their influence “pervaded the trial,” “undermined
the impartiality of the proceedings[,] and deprived [Appellant] of his
inalienable right to a fair trial.”

                                  Analysis

   In Spencer v. State, the Florida Supreme Court set forth the standard
of review for improper comments made during closing without a
contemporaneous objection:

      As a general rule, this Court has determined that failing to
      raise a contemporaneous objection when improper closing
      argument comments are made waives any claim concerning
      such comments for appellate review. The sole exception to
      this general rule is where the unobjected-to comments rise to
      the level of fundamental error. In order for an error to be
      fundamental and justify reversal in the absence of a timely
      objection, “the error must reach 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.”

Spencer v. State, 842 So. 2d 52, 74 (Fla. 2003) (internal and external
citations omitted).

   Comments during cross-examination that were properly objected to
and overruled are reviewed for an abuse of discretion, see Brinson v. State,
153 So. 3d 972, 975 (Fla. 5th DCA 2015), and a trial court’s ruling will be
upheld unless it is arbitrary, fanciful, or unreasonable. Banks v. State, 46
So. 3d 989, 997 (Fla. 2010). Objections to cross-examination comments
that are sustained, but for which the defense fails to timely move for a
mistrial, are reviewed for fundamental error. Companioni v. City of Tampa,
51 So. 3d 452, 456 (Fla. 2010); see also Pedroza v. State, 773 So. 2d 639,
641 (Fla. 5th DCA 2000).

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    Acknowledging that most of his challenges were not properly preserved,
Appellant argues that the cumulative effect of the prosecutor’s improper
comments made during cross-examination and during closing argument
was fundamental error and, therefore, requires a new trial. Specifically,
Appellant contends that the prosecution created “an image of [Appellant]
as an evil and violent human being, who harbors an indifference to human
life,” thus fundamentally depriving Appellant of a fair trial.

   A review of the record corroborates Appellant’s admission that only a
few of the comments that are challenged on appeal were actually objected
to at trial, and “other objections were general.” Moreover, the trial court
sustained several of Appellant’s objections during the State’s cross-
examination of Appellant, and defense counsel never followed up with a
request for curative instruction or a motion for mistrial. Other objections
were properly overruled, due to the general nature of the objection, such
as “improper comment.” See Castor v. State, 365 So. 2d 701, 703 (Fla.
1978) (“[A]n objection must be sufficiently specific both to apprise the trial
judge of the putative error and to preserve the issue for intelligent review
on appeal.”).

   The most objectionable comment during cross-examination was the
prosecutor’s question to Appellant, “[d]o you just have a complete
indifference to human life?” In its answer brief, the State acknowledges
that “the question may have been a step too far.” We agree, but also agree
that the statement, alone, or when considered with any of the other
challenged comments, did not rise to the level of fundamental error,
particularly when viewed in context. See Mendoza v. State, 964 So. 2d
121, 133 (Fla. 2007) (“To constitute fundamental error, improper
comments by the prosecutor must be so prejudicial that they would taint
the jury’s verdict.”). Here, the objectionable comment followed Appellant’s
admission that he failed to assist the victim after the latter was shot,
choosing instead to flee with the co-defendants, including the shooter.
Moreover, and importantly, Appellant’s objection to this comment was
sustained by the trial court.

   Appellant objected to only two comments made by the prosecution
during closing arguments (both objections were overruled). Appellant
argues that the “disparaging remarks about [Appellant] during [the State’s]
closing argument, such as calling him a murderer and a liar, and
characterizing him as violent, undermined the impartiality of the
proceedings and deprived [Appellant] of his inalienable right to a fair trial”
and “were so prejudicial as to constitute fundamental error.” We disagree.
“Here, on the whole, the comments made during closing were fair

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comments on the evidence and direct responses to defense arguments,
and did not amount to ‘fundamental error’ which tainted the validity of the
trial.” Wilchcombe v. State, 842 So. 2d 198, 200 (Fla. 3d DCA 2003).

    As acknowledged by Appellant, he has the burden              on appeal to
establish fundamental error, as few of the arguably              unacceptable
comments were objected to at trial, and the objection to        the “complete
indifference to human life” statement was sustained by the      judge, with no
follow-up by Appellant.

   We conclude that Appellant has failed to establish fundamental error
with respect to statements made by the prosecution during cross-
examination and closing. The State characterized Appellant as a “violent
criminal,” “a murder, an armed robber, and an armed burglar,” and
someone that the jury “should not like.” These characterizations, in the
abstract, could be viewed as “step too far” statements. However, when
measured as to whether they were proper in the context of the State’s effort
to establish that Appellant was a willing participant in the burglary and
robbery, by gunpoint, of the victim, and in light of the State’s evidence
supporting its charges, these characterizations of Appellant and his
actions did not cross the line, either separately or cumulatively, into the
realm of fundamental error.

                                 Conclusion

   In December 2015, Appellant and Nicholas Acosta were young men
attending college in South Florida, with promising lives ahead of them.
One year later, Acosta had been dead for a year and Appellant had just
been convicted of murder, burglary and robbery, sentenced to spend the
next three decades in prison. This is not necessarily a Shakespearian
tragedy, as the State suggested in closing, but it certainly can be
characterized as An American Tragedy.

    The prosecution questioned and commented regarding Appellant in a
brusque fashion, but with few objections that would have provided an
opportunity for the trial court to request that the State “tone it down.”
Absent objections or a request for mistrial for those objections that were
sustained, Appellant must demonstrate fundamental error. He has not,
as none of the comments—whether considered individually or
collectively—were of the type which “reach[ed] 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.” See Kennedy v. State, 59 So.
3d 376, 382 (Fla. 4th DCA 2011) (quoting Brooks v. State, 762 So. 2d 879,
899 (Fla. 2000)). Here, the State presented the testimony of several

                                       5
witnesses that conflicted with Appellant’s defense and provided a sufficient
evidentiary basis for the guilty verdicts. Thus, upon review of the record
and Appellant’s arguments of fundamental error, we determine that the
trial court’s final judgment should be affirmed.

   Affirmed.

WARNER and MAY, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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