        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                      RICARDO BENSON NARCISSE,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-2026

                               [June 24, 2015]

                           CORRECTED OPINION

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller and Richard Oftedal, Judges; L.T. Case No.
2012CF002996AMB. 1

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

    Appellant, Ricardo Narcisse, appeals his judgment of guilt and sentence
for one count of attempted robbery with a firearm. Appellant argues that
his conviction should be reversed because the prosecutor made
inappropriate comments during closing arguments. We agree and remand
for a new trial.

   Appellant was charged with one count of robbery with a firearm and
one count of attempted robbery with a firearm after he allegedly pulled a
gun on two men, fired a shot into the ground, and demanded they turn
over their valuables. With the state’s concession, the court acquitted
Appellant of the armed robbery charge after one of the victims refused to

1Judge Karen Miller presided over the trial in this case, and Judge Richard
Oftedal entered the judgment and sentence.
participate in the investigation. However, the remaining victim agreed to
cooperate and the state proceeded on the attempted robbery with a firearm
count.
    At Appellant’s trial, the state introduced evidence establishing that a
gun recovered from Appellant’s residence 2 matched the gun used in the
crime and that the cooperating victim identified Appellant as his attacker
from a photo line-up. With respect to the photo line-up, the administrating
officer testified that victim identified Appellant as the perpetrator without
any hesitation or qualification. However, when the state asked the victim
to confirm this identification on the stand, the victim only admitted that
he identified a “person [who] looked similar” to his attacker and testified
that he told the police that he “couldn’t say one hundred percent that was
the person.” The state then asked the victim if he could identify his
attacker in the courtroom, to which the victim responded that he could
not.

   During its closing, the state acknowledged that the victim did not
identify Appellant as his attacker at trial, but argued:

   [T]hat is not fatal to my case. And why is it not fatal? Because
   when his memory was fresh, he was shown this picture. And
   look at the pictures. When you go back there, I want you to look
   at all of these pictures and look how closely everyone resembles.
   And he picks him out. But you know what was funny when [the
   victim] was on the stand? You know, I shouldn’t use the term
   funny, it was sad. Because when I asked him if he could identify
   anybody, did you see his eyes? They were darting everywhere,
   and he would look at [Appellant] and then go back to darting
   around. I would argue to you that [the victim] was scared.

    Appellant objected to the above statement on the grounds of “facts not
in evidence” and the court responded: “the Jury is going to rely on their
collective recollection as to the demeanor of the witness.” The state
continued, again implying that the victim failed to identify Appellant out
of fear. The jury returned its verdict finding Appellant guilty as charged of
attempt to commit robbery with a firearm. This appeal follows.

   The issue before us is the propriety of the state’s closing comments
concerning the victim’s failure to identify Appellant at trial. Appellant
argues that the comments constituted impermissible prosecutorial

   2   The gun was found in the common area of a shared residence and
investigators did not find any physical evidence on the gun directly tying it to
Appellant.

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comment on a witness’ credibility and were so harmful that they
necessitate a new trial.     The State counters that the prosecutor’s
comments did nothing more than draw inferences based on the evidence
and, thus, were permissible.

   “A trial court’s control of prosecutorial closing comments is reviewed
for an abuse of discretion.” Pierre v. State, 88 So. 3d 354, 355 (Fla. 4th
DCA 2012). It is well settled that attorneys are afforded “wide latitude in
arguing to a jury during closing argument.” Thompson v. State, 88 So. 3d
322, 324 (Fla. 4th DCA 2012). However, “the prosecutor must confine
argument to evidence in the record and not make arguments which cannot
be reasonably inferred from the evidence.” Pierre, 88 So. 3d at 356. Thus,
comments regarding a victim’s recantation of a previous identification on
the grounds of fear of the defendant are improper unless there is evidence
establishing that the “victim’s recantation was motivated by fear or that
the victim had been threatened with reprisal by Defendant or someone
acting on Defendant’s behalf.” Id. at 355.

   Our holding in Pierre is dispositive. There, the victim of an aggravated
assault with a firearm recanted his out-of-court photo line-up
identification of the defendant, testifying that he only made the
identification in the first place because “he was mad and wanted someone
to be punished.” 88 So. 3d at 355. During closing, the prosecutor pointed
out that the recantation took place four years after the incident and
reasoned that it was because the victim was “scared.” Id. The defense
objected on the grounds that “these facts were not in evidence” but the
court allowed the prosecutor to proceed. Id. On appeal, we held that:

      The prosecutor’s statements were improper because there was
      no evidence that the victim recanted the prior identification
      out of fear. The statements implied that Defendant may have
      engaged in witness tampering or suborning perjury. Such
      comments are ‘highly irregular, impermissible, and
      prejudicial.’ Further, because there was no evidence that the
      victim recanted the identification because he was afraid, the
      comments implied that the prosecutor had ‘unique knowledge’
      that was not presented to the jury.

Id. at 356 (citations omitted). We further held that because the victim was
“the only eye-witness and there was scant physical evidence,” the
“improper prosecutorial comments were so prejudicial as to deprive
Defendant of a fair and impartial trial.” Id.



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   The facts here are virtually indistinguishable from Pierre. In both cases,
the victims of a crime involving a firearm initially identified the defendants
in a photo line-up but retreated from their initial identifications and
refused to identify the defendants at trial. Likewise, in both cases, the
prosecutor argued that the victims recanted because they were “scared”
although there was no direct evidence establishing the victims’ fear.
Further, just like in Pierre where the victim “was the only eye-witness and
there was scant physical evidence,” aside from the gun (which was not
conclusively linked to Appellant), the state’s only evidence tying Appellant
to the crime was the victim’s initial identification of Appellant from the
photo line-up. Id. Accordingly, under the authority of Pierre, the
prosecutor’s comments in this case were improper and so prejudicial as to
necessitate a new trial.

   Reversed and remanded for a new trial.

TAYLOR and MAY, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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