          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-975
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BRENDEN BROWN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  ___________________________

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

                          April 18, 2018


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
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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 completely dishonest lying [and] unbelievable individual.”

     After the courtroom settled, the prosecutor stood to deliver her
rebuttal argument. “‘Do not say sh*t,’” she began, quoting
Appellant. Defense counsel did not object. The prosecutor
continued: “That’s what this defendant said to Derrick Matthews
when they were together in the Interview Room the night that they
robbed [the victim] at gunpoint.” Still no objection. The prosecutor
went on: “Ladies and gentlemen of the Jury, I want you to think
based on the defense’s Closing Argument, don’t say sh*t about
what, if the Defendant wasn’t even there. If the Victim made up a
second assailant and it was all Derrick Matthews.” The defense
was silent.

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     After the prosecutor finished her rebuttal argument, defense
counsel requested a side-bar at which, out of the hearing of the
jury, he argued that the State’s rebuttal had exceeded the scope of
his closing argument with the “Do not say sh*t comment.” He
pointed out that the comment was not addressed in his closing and
the prosecutor’s quote “kind of came out of the blue.” Accordingly,
he asked the trial court to permit him the opportunity to address
“just that point.” The trial court denied the request, finding that
the prosecutor’s argument was “fair comment” on defense counsel’s
“generic” reference to the detective’s interview and his failure to
address Appellant’s subsequent statement to Matthews.

     Defense counsel’s closing argument deftly omitted any
acknowledgment of Appellant’s instruction to Matthews. That
strategy left a monumental hole in the evidentiary narrative that
the State had every right to fill in—to rebut defense counsel’s
argument that Appellant’s only statement was that he was not a
participant in the robbery and that Appellant “didn’t say anything
about the subject incident.” In that respect, the State’s rebuttal
qualified as a legitimate, real-time reaction to defense counsel’s
synopsis of the State’s evidence.

     “The proper limit of a rebuttal is ‘a reply to what has been
brought out in the defendant’s [closing] argument.’” Brown v.
State, 18 So. 3d 1149, 1151 (Fla. 4th DCA 2009) (quoting
Heddendorf v. Joyce, 178 So. 2d 126, 130 (Fla. 2d DCA 1965)); see
also Jackson v. State, 147 So. 3d 469 (Fla. 2014) (holding that the
prosecutor’s comments made in rebuttal to the defense’s closing
arguments, which “implicitly rebuked the defense’s closing
arguments,” were, instead, “a fair response to defense counsel’s
attack on the credibility of the State’s witnesses”). Yet, a variant
of that rule is also true. Certain facts may be strategically omitted
in a closing argument in order to enhance the non-criminal
explanation for the defendant’s behavior. In those circumstances,
the State’s invited response—to facts that are in the record but
omitted by defense counsel—falls within the appropriate
boundaries of rebuttal argument. See 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.”); State v. Ling, 212 So. 3d 530, 533 (Fla. 1st DCA 2017)

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(“Where defense counsel places an issue before the jury in closing
argument, the prosecution is permitted to respond, and the defense
may not be granted a new trial because the state ‘rose to the bait.’”)
(citation and internal quotations omitted); Lot v. State, 13 So. 3d
1121, 1124 (Fla. 3d DCA 2009) (“[T]he State's comments were
made in direct response to the defendant's closing argument that
the defendant's easily-traceable actions indicate a non-criminal
motive or intent. . . . [W]e hold that the trial court acted within its
discretion by allowing the prosecutor's argument and denying the
defendant's subsequent motion for a mistrial.”); cf. Brown, 18 So.
3d at 1150-51 (holding that the State’s thirty-four-slide
PowerPoint presentation on rebuttal—which included a
photograph never introduced in the evidence and the name of a
witness who never testified at trial—went far beyond its proper
function as a reply to the defense’s closing argument).

     Here, at the close of defense counsel’s argument, the jurors
were left with the impression that Appellant’s last word on the
subject robbery was his statement to Detective Blankinchip that
he did not commit the crime. The State, therefore, was entitled to
remind them of Detective Blankinchip’s testimony concerning
what Appellant said to Matthews, as well as to argue any fair
inferences from that testimony.

     Accordingly, because the State’s rebuttal did not come “out of
the blue,” but was invited by defense counsel’s argument, we hold
that the trial court did not abuse its discretion in denying defense
counsel a second opportunity to address the jury.

    AFFIRMED.

WINSOR and M.K. THOMAS, JJ., concur.


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




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