TEDRICK PAGE v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: March 30, 2022
• Docket: 20-1636
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 30, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1636 Lower Tribunal No. F04-36997 ________________

Tedrick Page, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before FERNANDEZ, C.J., and EMAS and BOKOR, JJ.

PER CURIAM. Affirmed. 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”); Noriega v. State, 228 So. 3d 170 (Fla. 3d

DCA 2017) (State’s comment in its rebuttal closing argument—that there

was “zero evidence” to support defendant’s alternative theory of the case—

was not an improper, burden-shifting argument where it was made in

response to, and was invited by, the defense’s closing argument); Joyner v.

State, 979 So. 2d 1246 (Fla. 4th DCA 2008) (holding “a defendant ‘may not

make or invite an improper comment and later seek reversal based on that

comment”) (citation omitted); Rivera v. State, 840 So. 2d 284, 286-87 (Fla.

5th DCA 2003) (”In order to determine whether improper remarks constitute

reversible error, they should be reviewed within the context of the closing

argument as a whole and considered cumulatively within the context of the

entire record. Thus, a comment standing alone may be viewed as

inappropriate, but when considered within the context of the entire closing

argument and the record, it may be a fair comment”) (internal quotations and

citations omitted); Brown v. State, 771 So. 2d 603, 605 (Fla. 4th DCA 2000)

(holding prosecutor’s comments were permissible as an invited response).

See also U.S. v. Robinson, 485 U.S. 25, 32 (1988) (holding that where

2 “prosecutor’s reference to the defendant’s opportunity to testify is a fair

response to a claim made by defendant or his counsel, we think there is no

violation of the privilege” and further observing: “The central purpose of a

criminal trial is to decide the factual question of the defendant’s guilt or

innocence [and] [t]o this end it is important that both the defendant and the

prosecutor have the opportunity to meet fairly the evidence and arguments

of one another”); U.S. v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008)

(reiterating that “the protective shield of the Fifth Amendment should [not] be

converted into a sword” and affirming denial of motion for mistrial where

prosecutor’s reference to defendants’ failure to make a statement was a fair

response to defense counsel’s argument that defendant had not admitted he

possessed marijuana) (internal citation omitted).