Third District Court of Appeal
State of Florida
Opinion filed October 26, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1925
Lower Tribunal No. F18-3191
________________
Khiary DeJuan Mintz,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes
Simon, Judge.
Carlos J. Martinez, Public Defender, and Deborah Prager and Nicholas
A. Lynch, Assistant Public Defenders, for appellant.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant
Attorney General, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J.
Khiary DeJuan Mintz’s (“Mintz”) appeals his conviction and sentence
for attempted second degree murder. We have jurisdiction. Fla. R. App. P.
9.130(b)(1)(A). Mintz asserts the trial court abused its discretion in denying
his motion for a new trial because the State impermissibly shifted the burden
of proof in closing argument. 1 Because the State’s comments were
permissible logical inferences from the evidence, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mintz was tried for attempted second degree murder for stabbing the
victim in his back, neck and face. At trial, the victim testified Mintz was his
only attacker, that the crime occurred in the backseat of the victim’s mother’s
car and that no one else was present in the backseat during the attack.
Defense counsel asserted in closing argument that while Mintz and the victim
met, Mintz left prior to the victim being injured. Defense counsel argued the
victim then met with a white male named Kenneth Logan, whose bus
identification card was found in the backseat of the victim’s mother’s car—
alluding to a strawman defense.2
1
Although Mintz has raised additional claims of improper comment or
improper testimony, we write solely to address the alleged burden-shifting
comments discussed in this opinion. To the extent any of Mintz’s remaining
claims have merit, we conclude they were either not properly preserved or
constitute harmless error.
2
A straw man argument is the logical fallacy of distorting an opposing
position into an extreme version of itself. See Black’s Law Dictionary (11th
2
During rebuttal argument, the State argued the identification found in
the car could be fake or Mintz could have dropped the ID while he was
perpetrating the crime. Defense counsel objected, arguing the comments
were tantamount to burden shifting. The jury found Mintz guilty of attempted
second-degree murder. Defense counsel moved for mistrial contending a
new trial was necessary because among other reasons, the prosecutor
made burden shifting comments. The trial court denied the defendant’s
motion for mistrial. This appeal followed.
LEGAL ANALYSIS
“A trial court’s ruling on a motion for a mistrial is within the sound
discretion of the court and will be sustained on review absent an abuse of
discretion.” Ford v. State,
802 So. 2d 1121, 1129 (Fla. 2001). 3 “The primary
purpose of closing argument is to give the parties an opportunity to
summarize the evidence and explain how the facts derived therefrom should
be applied to the law as instructed by the trial court.” McArthur v. State, 801
ed. 2019) (defining “straw man” as “1. A fictitious person, esp. one that is
weak or flawed. 2. A tenuous and exaggerated counterargument that an
advocate makes for the sole purpose of disproving it. — Also termed straw-
man argument.”).
3
We find the alleged burden shifting comments were properly preserved for
appeal. Spencer v. State,
645 So. 2d 377, 383 (Fla. 1994) (holding “[t]he
issue [of an improper comment] is preserved if the defendant makes a timely
specific objection and moves for a mistrial.”).
3
So. 2d 1037, 1039 (Fla. 5th DCA 2001). “In closing argument, counsel is
permitted to review the evidence and fairly discuss and comment upon
properly admitted testimony and logical inferences from that evidence.”
Conahan v. State,
844 So. 2d 629, 640 (Fla. 2003). “The proper exercise of
closing argument is to review the evidence and to explicate those inferences
which may reasonably be drawn from the evidence.” Mann v. State,
603 So.
2d 1141, 1143 (Fla. 1992) (quoting Bertolotti v. State,
476 So. 2d 130, 134
(Fla. 1985)).
Mintz argues the trial court abused its discretion in denying his motion
for mistrial because allowing such comments could have erroneously led the
jury to believe the defendant carried the burden of introducing evidence. The
victim testified at trial he did not know an individual named Kenneth Logan,
the victim did not bring the identification inside the car and the victim and the
defendant were the only two individuals in the car during the attack. Here,
the comments made during closing argument were logical inferences of the
evidence and in no way shifted the burden of proof. 4 We therefore find the
4
We note the State did not comment on the defense’s failure to call a witness
or make any additional comment that may have misled the jury into expecting
the defense to produce evidence to refute Logan’s presence or lack thereof.
See Jackson v. State,
575 So. 2d 181, 188 (Fla. 1991) (reversing where the
prosecutor commented as to the defendant’s failure to call a particular
witness to testify); Hogan v. State,
753 So. 2d 570, 571 (Fla. 4th DCA 1999)
(“When the state points out that a defendant has not produced a witness, it
4
State’s comments were not tantamount to burden shifting. Mitchell v. State,
771 So. 2d 596, 598 (Fla. 3d DCA 2000) (affirming the denial of a mistrial
finding “[t]he objected-to remarks were fair comment and did not constitute
impermissible arguments that shifted the burden of proof”).
Affirmed.
can mislead the jury into thinking that the defendant has the burden of
demonstrating his innocence.”); Davis v. State,
744 So. 2d 1091, 1094 (Fla.
5th DCA 1999) (“[T]he State cannot comment on a defendant’s failure to
produce evidence to refute an element of the crime charged.”).
5
