Third District Court of Appeal State of Florida
Opinion filed January 28, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0047 Lower Tribunal No. F21-1581 ________________
Richard Fred Francois, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Katryna Santa Cruz, Assistant Attorney General, for appellee.
Before LOGUE, GORDO and GOODEN, JJ.
LOGUE, J. Richard Fred Francois appeals a final judgment of conviction and
sentence for attempted first-degree murder and attempted second-degree
murder. On appeal, Francois argues the State made inflammatory comments
during closing arguments that: (1) denigrated the defense and (2) were
improper “community conscience” arguments attempting to bolster the key
witnesses. Finding no abuse of discretion, we affirm.
Background
This appeal stems from a shooting incident near I-95 on December 31,
2020. The victims, Keren Jean-Baptiste and her brother, Elisha, were in their
vehicle after departing a church service, when Francois approached and
started shooting. Keren sustained gunshot wounds to her shoulder and knee.
Elisha escaped without injury. Keren and Elisha identified the shooter as
Francois. Francois was adjudicated guilty and sentenced to 30 years’
imprisonment, followed by 10 years’ probation.
The parties have a history. Keren and Francois were in a relationship
for approximately nine years. The record reflects the relationship was
tumultuous, toxic and, at times, violent. Keren ended the relationship in the
middle of 2020. A few months before the incident, in September 2020, Keren
sought, and obtained, a temporary restraining order following an incident
where Francois dragged her out of a moving car.
2 In the months following the breakup, Francois sent Keren countless
messages via text saying things such as, “you’re going to remember me
when I kill myself” and “I’m going to kill everyone [I’ve] ever had issues with.”
A month before the shooting, however, Francois ceased all communication
with her. As noted above, both victims positively identified Francois as the
shooter. Following a jury trial, Francois was convicted of attempted first-
degree murder (Keren) and attempted second-degree murder (Elisha).
Francois moved for a new trial arguing, among other things,
prosecutorial misconduct, which motion was denied. This appeal followed.
Analysis
As noted above, the key issues on appeal relate to certain statements
made by the State in its closing arguments. Specifically, Francois claims the
prosecution made improper community conscience arguments and
improperly denigrated the defense. Neither issue has merit.
“We review trial court rulings regarding the propriety of comments
made during closing argument for an abuse of discretion. Where the
comments were improper and the defense objected, but the trial court
erroneously overruled defense counsel’s objection, we apply the harmless
error standard of review.” Andres v. State, 254 So. 3d 283, 298-99 (Fla.
3 2018) (quoting Cardona v. State, 185 So. 3d 514 (Fla. 2016)) (internal
citations omitted).
I. Denigration of Defense and Defense Counsel
Francois argues the State improperly (1) referred to Francois as a
“monster” and (2) negatively discussed the defense theory.
“A prosecutor may not ridicule a defendant or his theory of defense[.]”
Riley v. State, 560 So. 2d 279, 280 (Fla. 3d DCA 1990) (citing Rosso v.
State, 505 So. 2d 611 (Fla. 3d DCA 1987)). That said, “[i]n order for the
prosecutor’s comments to merit a new trial, the comments must be of such
a nature: (1) so as to deprive appellant of a fair trial; (2) materially contribute
to his conviction; (3) be so harmful or fundamentally tainted so as to require
a new trial; or (4) be so inflammatory that they might have influenced the jury
to reach a more severe verdict than that which they would have reached
otherwise.” Lopez v. State, 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990). “We
do not review each of the allegedly improper comments in isolation; instead,
we examine ‘the entire closing argument’ . . . in order to determine ‘whether
the cumulative effect’ of any impropriety deprived [the defendant] of a fair
trial.” Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012) (quoting Card v.
State, 803 So. 2d 613, 622 (Fla. 2001)).
4 Generally, name calling or referring to a defendant with certain labels
may be considered inflammatory. For example, repeatedly referring to
appellant as a “pedophile” was determined to be an unacceptable
prosecutorial tool in Rodriguez v. State, 210 So. 3d 750 (Fla. 5th DCA 2017).
In contrast, on similar issues, the United States Supreme Court in Darden v.
Wainwright, 477 U.S. 168, 180-182 (1986), held that a defendant was not
deprived of a fair trial where the defendant was described as an “animal.”
The Court there reasoned that “[m]uch of the objectionable content was
invited by[,] or was responsive to[,] the opening summation of the defense”
and while the Court found these arguments improper, it concluded they did
not infect the trial with unfairness considering the record as a whole. Id.
Here, the trial court overruled objections to the following statements
during the State’s closing:
Taking the circumstances [sic], that is how we are able to prove this case. The[] creation of a monster. When the defense stated that [Keren] misidentified the defendant because in her mind that was who this man was[,] a monster. And given her fear, her anger, her frustration, her mind just automatically placed the . . . the defendant in the driver’s seat.
...
But yet the defense wants you to believe that [Keren] just had these monsters in her head that she made up.
5 ...
The monster in [Keren’s] head. He is a monster.
(emphasis added). In isolation, the reference to Francois as a “monster”
may, indeed, constitute an improper negative remark, like being called an
“animal.” However, the defense invited the use of the word “monster” in the
first few lines of its opening argument. In other words, the defense, itself,
introduced the word monster several times before the State made its
closing argument.
For our purposes here, the victims’ testimony and identification of
Francois as the shooter, coupled with the other evidence presented by the
prosecution, make it unlikely that the jury’s decision was influenced by the
handful of comments made during closing arguments.
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Third District Court of Appeal State of Florida
Opinion filed January 28, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0047 Lower Tribunal No. F21-1581 ________________
Richard Fred Francois, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Katryna Santa Cruz, Assistant Attorney General, for appellee.
Before LOGUE, GORDO and GOODEN, JJ.
LOGUE, J. Richard Fred Francois appeals a final judgment of conviction and
sentence for attempted first-degree murder and attempted second-degree
murder. On appeal, Francois argues the State made inflammatory comments
during closing arguments that: (1) denigrated the defense and (2) were
improper “community conscience” arguments attempting to bolster the key
witnesses. Finding no abuse of discretion, we affirm.
Background
This appeal stems from a shooting incident near I-95 on December 31,
2020. The victims, Keren Jean-Baptiste and her brother, Elisha, were in their
vehicle after departing a church service, when Francois approached and
started shooting. Keren sustained gunshot wounds to her shoulder and knee.
Elisha escaped without injury. Keren and Elisha identified the shooter as
Francois. Francois was adjudicated guilty and sentenced to 30 years’
imprisonment, followed by 10 years’ probation.
The parties have a history. Keren and Francois were in a relationship
for approximately nine years. The record reflects the relationship was
tumultuous, toxic and, at times, violent. Keren ended the relationship in the
middle of 2020. A few months before the incident, in September 2020, Keren
sought, and obtained, a temporary restraining order following an incident
where Francois dragged her out of a moving car.
2 In the months following the breakup, Francois sent Keren countless
messages via text saying things such as, “you’re going to remember me
when I kill myself” and “I’m going to kill everyone [I’ve] ever had issues with.”
A month before the shooting, however, Francois ceased all communication
with her. As noted above, both victims positively identified Francois as the
shooter. Following a jury trial, Francois was convicted of attempted first-
degree murder (Keren) and attempted second-degree murder (Elisha).
Francois moved for a new trial arguing, among other things,
prosecutorial misconduct, which motion was denied. This appeal followed.
Analysis
As noted above, the key issues on appeal relate to certain statements
made by the State in its closing arguments. Specifically, Francois claims the
prosecution made improper community conscience arguments and
improperly denigrated the defense. Neither issue has merit.
“We review trial court rulings regarding the propriety of comments
made during closing argument for an abuse of discretion. Where the
comments were improper and the defense objected, but the trial court
erroneously overruled defense counsel’s objection, we apply the harmless
error standard of review.” Andres v. State, 254 So. 3d 283, 298-99 (Fla.
3 2018) (quoting Cardona v. State, 185 So. 3d 514 (Fla. 2016)) (internal
citations omitted).
I. Denigration of Defense and Defense Counsel
Francois argues the State improperly (1) referred to Francois as a
“monster” and (2) negatively discussed the defense theory.
“A prosecutor may not ridicule a defendant or his theory of defense[.]”
Riley v. State, 560 So. 2d 279, 280 (Fla. 3d DCA 1990) (citing Rosso v.
State, 505 So. 2d 611 (Fla. 3d DCA 1987)). That said, “[i]n order for the
prosecutor’s comments to merit a new trial, the comments must be of such
a nature: (1) so as to deprive appellant of a fair trial; (2) materially contribute
to his conviction; (3) be so harmful or fundamentally tainted so as to require
a new trial; or (4) be so inflammatory that they might have influenced the jury
to reach a more severe verdict than that which they would have reached
otherwise.” Lopez v. State, 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990). “We
do not review each of the allegedly improper comments in isolation; instead,
we examine ‘the entire closing argument’ . . . in order to determine ‘whether
the cumulative effect’ of any impropriety deprived [the defendant] of a fair
trial.” Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012) (quoting Card v.
State, 803 So. 2d 613, 622 (Fla. 2001)).
4 Generally, name calling or referring to a defendant with certain labels
may be considered inflammatory. For example, repeatedly referring to
appellant as a “pedophile” was determined to be an unacceptable
prosecutorial tool in Rodriguez v. State, 210 So. 3d 750 (Fla. 5th DCA 2017).
In contrast, on similar issues, the United States Supreme Court in Darden v.
Wainwright, 477 U.S. 168, 180-182 (1986), held that a defendant was not
deprived of a fair trial where the defendant was described as an “animal.”
The Court there reasoned that “[m]uch of the objectionable content was
invited by[,] or was responsive to[,] the opening summation of the defense”
and while the Court found these arguments improper, it concluded they did
not infect the trial with unfairness considering the record as a whole. Id.
Here, the trial court overruled objections to the following statements
during the State’s closing:
Taking the circumstances [sic], that is how we are able to prove this case. The[] creation of a monster. When the defense stated that [Keren] misidentified the defendant because in her mind that was who this man was[,] a monster. And given her fear, her anger, her frustration, her mind just automatically placed the . . . the defendant in the driver’s seat.
...
But yet the defense wants you to believe that [Keren] just had these monsters in her head that she made up.
5 ...
The monster in [Keren’s] head. He is a monster.
(emphasis added). In isolation, the reference to Francois as a “monster”
may, indeed, constitute an improper negative remark, like being called an
“animal.” However, the defense invited the use of the word “monster” in the
first few lines of its opening argument. In other words, the defense, itself,
introduced the word monster several times before the State made its
closing argument.
For our purposes here, the victims’ testimony and identification of
Francois as the shooter, coupled with the other evidence presented by the
prosecution, make it unlikely that the jury’s decision was influenced by the
handful of comments made during closing arguments. See Otero v. State,
754 So. 2d 765, 770 (Fla. 3d DCA 2000) (concluding improper statements
to the jury were harmless error where the victim gave unwavering positive
identification of defendant to the police). Further, nothing in the record
suggests the comment was so inflammatory that it influenced the jury to
reach a more severe verdict than that which they would have reached
otherwise. The evidence submitted to the jury was sufficient to sustain the
conviction.
6 Francois also takes issue with the following portion of the closing
statement,
Let'’s first talk about this whole notion of a mistaken [identity] oh, this is mistaken identity. It is some random road rage incident. . . . They can choose to argue something whatever they want to argue. In this case, they are saying it is missing -- a mistaken ID.
But yet the defense wants you to believe that [Keren] just had these monsters in her head that she made up.
The comments here are analogous to those in Valentine v. State, 98
So. 3d 44, 55 (Fla. 2012), where the prosecutor said “Now, [defense counsel]
wants you to believe that [Romero] is lying and to have you believe that she
is lying, he has to provide you with a motivation for why she was lying and
so her motivation is this Costa Rican divorce.” The Supreme Court found this
was not improper because it merely described the defense’s theory of the
case. Id. at 55-56.
Here, as in Valentine, the comment merely recites the defense’s theory
of a mistaken identity, without attacking or ridiculing the theory. In context,
these comments do not rise to the level of denigrating the defense. Any error
was harmless considering the record and evidence in the case.
7 II. Community Conscience
Francois’ community conscience arguments, likewise, fail. The
statements at issue relate to the fact that: (1) Francois’ actions, i.e., shooting
at a vehicle on a populated freeway were reckless as a matter of public
safety, and noting that (2) Keren and Elisha were members of the U.S.
Military.
Generally, arguments appealing to community sensibilities and civic
conscience have been held improper. See Birren v. State, 750 So. 2d 168,
169 (Fla. 3d DCA 2000). However, a comment that merely invokes the
community but “[does] not suggest that the jury pick a side, condone the
victim’s [attempted] murder if returning a not guilty verdict, or convict [the
defendant] for the good of the community,” does not constitute an improper
appeal to the jury’s community sensibilities or conscience. Talley v. State,
260 So. 3d 562, 573 (Fla. 3d DCA 2019).
During its closing, the prosecution stated, “How reckless was it that
they are on the freeway as a matter of public safety and concerned civilians
the defense wants you to worry.” While the comment references public
safety, it was, in fact, an isolated and limited comment. See Smith v. State,
818 So. 2d 707, 711 (Fla 5th DCA 2002). Separately, the jury was presented
evidence that eighteen bullets were found in the car, meaning Francois
8 pulled the trigger, at least, eighteen times while in neighborhood streets and
public highways. Nothing in the comment directs the jury to pick a side, as
the evidence spoke for itself. Talley, 260 So. 3d at 573.
Last, the State mentioned that both victims had “tried to move on” and
had “joined the military” to “protect [our] citizens in this [country].” Francois
relies on Spann v. State, 985 So. 2d 1059, 1067 (Fla. 2008), which states
that “[i]mproper bolstering occurs when the State places the prestige of the
government behind the witness or indicates that information not presented
to the jury supports the witness’s testimony.” A reference in closing argument
to military service, however, without more is not “independently reversible
error,” if it is not an improper attempt to sway the jury. Landry v. State, 620
So. 2d 1099, 1102 (Fla. 4th DCA 1993). Further, the topic of the victims’
military service had already been discussed by both parties throughout the
trial.
In sum, applying the law to the record in this case, the comments do
not rise to a level that renders the trial unfair. We find no abuse of discretion.
Affirmed.