Brown v. State, No. 3D13-2335 (Fla. 3d DCA 2015)

This is a case tried in front of Judge Jorge Rodriguez Chomat concerning an attempted armed robbery. The issue on appeal was whether a prosecutor’s improper comments during closing argument constituted fundamental error. 

The facts are a testament to the Second Amendment right to bear arms and how possession of a handgun can sometimes come in handy—if possessing and using a handgun to save one’s life is considered handy. So, here is what the trial revealed: 

The defendant, Brown, came up behind a victim wielding his .40 caliber handgun and demanded the victim’s bracelet. The victim pulled out his own .25 caliber handgun and shot Brown in self-defense. Brown scurried off leaving a trail of blood. The police found and arrested Brown at a nearby hospital and matched Brown’s blood to the blood on the victim’s sidewalk. 

Closing Argument: Without Objection 

At closing the prosecutor argued:

The victim “[c]arries a 25. Because he is not out to kill anybody.” 

“He was not out to take anybody’s life. Thank goodness the defendant is still here, because he [the victim] carries a small powered 25. If he wanted to hurt anybody, if he wanted to take somebody’s life, he would have used a 38 or 9 and maybe this defendant would not be here today, ladies and gentlemen.” 

“This defendant is so confident that he picked a good, easy target…He says ‘let me have your bracelet.’ And he has a 40. Why? Because he means business. He is going to have some firepower.” 

“Here is the base of the bullet. Take it out. Compare it to the 25. Bad guy’s bullet. Bigger. It is a 40, ladies and gentlemen.” 


Error, But Not Fundamental Error 

Because the defense did not object to the State’s closing comments, Chief Judge Shepherd, writing for the Court, analyzed the prosecutor’s statements under the prism of fundamental error. Fundamental error, as a rule, is an exceedingly difficult basis to win an appeal. Judge Shepherd cited to the test concerning fundamental error:

“The test for determining fundamental error is whether the error goes to the foundation of the case or goes to the merits of the cause of action.” State v. Fountain, 930 So. 2d 865, (Fla. 2d DCA 2006).

The opinion clearly states that it was an error to insinuate that Brown was a “bad guy” based on the size of his ammunition. Furthermore, the opinion stated that just because one ammunition is larger or more lethal, it does not mean that it is a “bad guy’s” bullet. 

Thus, reasoned the Court, because it was legal for Brown to possess the larger projectile, the fact that it was potentially “more destructive” does not make it illegal. The illegality of Brown’s felonious plight was his intent to commit an armed robbery. Therefore, although the prosecutorial comments were error, they were not fundamental error and the Court affirmed Brown’s conviction. 

Lessons Learned From This Opinion 

Clearly, fundamental error is a difficult issue to assert in any appeal. Though defined, it cannot be pigeonholed into bright line or per se rules. Thus, what may be considered fundamental error for one judge may not be to another judge. In this case, all three judges agreed that the comments were not fundamental error. Consequently, even though the Court found the comments about size to be error, they did not rise to the level of fundamental error to vitiate the entire trial. 

Next, this case illustrates one of the reasons why the Second Amendment is so valuable. The victim’s right to possess a firearm saved his life. I guess the saying that “if handguns were banned only criminals would have them,” rings true in this case. If only Brown had a handgun, who knows how this case would have ended. 

This article was first published on the Network on March 25, 2015.