North FL’s Highest Court REVERSES Aggravated Assault Conviction Due to Improper Closing Arguments

April 23, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 1st District Court of Appeal reversed a defendant’s aggravated assault with a deadly weapon conviction after a prosecutor insulted opposing counsel and pointed a shotgun allegedly used at a member of the jury to put them “in the victim’s shoes.”

CASE: Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990)

Charge(s): Aggravated Assault with a Firearm

Outcome: Conviction REVERSED, as the prosecutor in the case made various improper remarks impugning opposing counsel and various “Golden Rule” arguments that violated the defendant’s right to a fair trial.

Closing Arguments in Florida Criminal Trials

In Florida, closing arguments are a CRITICAL ASPECT of criminal trials. Closing arguments are the “last word” that each party (State and defense) gets before the jury is instructed and sent to deliberate.

The goal of a good closing argument is to provide a “lens” through which the jury can view the evidence and testimony they saw and heard – increasing the likelihood that they will render their verdict in favor of the arguing party.

Many believe that closing arguments involve the State speaking, followed by the defense. This is not the whole picture. Closing arguments are structured in the following way (Williams v. State, 673 So.2d 974 (Fla. 1st DCA 1996)):

• First, the State gives its initial closing
• Second, the defense gives its closing (which often will involve rebuttals of what the State said during its first closing statement)
• Finally, the State (e.g. prosecutor) gives a REBUTTAL CLOSING (which is the true “last word” before deliberations) to refute the defense’s closing statement

After the State’s rebuttal, the jury is instructed by the trial judge about the elements of the alleged offenses and rules governing the process of deliberations. The jury will then be sent to deliberate, and eventually return a verdict. As part of these instructions, the judge will also tell the jury that the statements of the attorneys (including closing arguments) are NOT evidence. 

But this does not change the fact that a strong closing argument can shape how the jury sees (and by extension, decides) a case. Although the jury must focus on the evidence and testimony when they deliberate, a strong closing argument can assist the jury in mentally “framing” what they’ve seen and heard – which will inform their eventual verdict.

Closing arguments are particularly important for the defense at a criminal trial, for a few reasons. The first is the fact that the defense only gets ONE “bite at the apple” – there is no rebuttal. Thus, the defense must make their closing argument particularly strong to maximize the chances that a jury will return a verdict in their favor.

Moreover, a closing argument is the defense’s chance to reframe how the evidence is viewed by the jury. Throughout the trial, the jury may be inclined to view the State favorably – especially if the State presents more evidence/testimony than the defense does.

But in a strong closing argument, an experienced and aggressive Florida criminal defense lawyer can use the “holes” they have poked in the State’s case throughout trial to make it clear the State has NOT met their burden of proof (e.g. beyond a reasonable doubt). This may cause the jury to reconsider their position(s), if they were leaning towards voting guilty.

A big “no-no” during closing arguments is the GOLDEN RULE ARGUMENT. This involves attorneys asking the jury to put themselves in the position of the defendant or victim in a case – inviting them to base their verdict on personal sympathy rather than evidence. Examples include:

• “Imagine you were that poor girl getting raped – now find the defendant guilty!”
• “Imagine you were Ms. Jones, facing life in prison – she doesn’t deserve that, so find her NOT guilty!”
• “Put yourself in the shoes of the parents of the victim and think about their pain, then find the defendant guilty as charged!”

Examples of other objectionable tactics employed during closing arguments include (Rodriguez v. State, 210 So.3d 750 (Fla. 5th DCA 2017)):

• Impugning the character of opposing counsel by calling them a “liar” or “evil”
• Calling the defendant ugly names/insulting them
• Relying on facts not in evidence or misrepresenting the law (Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994))
• Commenting on the defendant’s right to remain silent 
• Improperly bolstering the testimony of an alleged victim or law enforcement officers (Williams v. State, 673 So.2d 974 (Fla. 1st DCA 1996))
• Saying the case is about getting “justice” for the victim (Cardona v. State, 185 So.3d 514, 521 (Fla. 2016))

If a defendant is convicted despite the fact that a prosecutor made one or more improper remarks during closing arguments, there is a chance their conviction(s) will be REVERSED on appeal. Petruschke v. State, 125 So.2d 274 (Fla. 4th DCA 2013)

Generally, the likelihood of a mistrial (or the defendant’s conviction being reversed by a Florida appellate court) significantly increases if the defense OBJECTS contemporaneously (e.g. during a prosecutor’s closing arguments). This is because:

• WITH AN OBJECTION: Courts apply a “harmless error” analysis (e.g. if there was NO reasonable possibility the jury’s verdict was impacted by the comments) – if the improper remarks were not harmless error, a conviction requires reversal (Petruschke v. State, 125 So.2d 274 (Fla. 4th DCA 2013))
• WITHOUT AN OBJECTION: The improper comments are reviewed for fundamental error, which is a far higher standard (e.g. whether improper comments were so unfairly prejudicial that it made the jury’s verdict inherently illegitimate, per Brinson v. State, 153 So.3d 972 (Fla. 5th DCA 2015))

In one case involving an alleged aggravated assault with a firearm heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), a defendant was convicted after the prosecutor violated multiple rules during closing arguments in the case. 

On appeal, because the defense objected, the 1st DCA engaged in a harmless error analysis – and ultimately determined the defendant’s conviction required REVERSAL due to the prosecutor’s misconduct.

Let’s take a look at that case – Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990) – and discuss what it means for defendants in Florida concerned about violations of their right to a fair trial via improper prosecutorial remarks during closing arguments.

KEY CASE: Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990)

In Jenkins, the defendant (Jenkins) was charged with aggravated assault with a firearm – and was ultimately convicted. At trial, the following occurred:

• The prosecutor made various improper remarks during closing arguments that drew objections from the defense
• These included Golden Rule arguments – the most “egregious” form of which was when he pointed the shotgun allegedly used by Jenkins at a member of the jury to put the jury “in the shoes” of the alleged victim
• The prosecutor also insulted opposing counsel as well as the client personally
• The defense objected, however, the trial judge did not give cautionary instructions to the jury and allowed the prosecutor’s argument to continue unchecked
• This resulted in Jenkins’s attorney having to spend time in closing arguments defending his own reputation in addition to his client
• Jenkins was ultimately CONVICTED

On appeal to the 1st DCA, Jenkins argued that the prosecutor committed misconduct – and this was NOT harmless error (e.g. may have influenced the jury’s verdict). As a result, he urged the 1st DCA to reverse his aggravated assault conviction.

The 1st DCA AGREED, reversing Jenkins’s conviction and remanding the matter to the lower court for a new trial. First addressing the personal attacks on Jenkins and his attorney, the 1st DCA wrote:

“During closing argument, [the prosecutor] repeatedly accused defense counsel of further victimizing the victim and of seeking an acquittal at all costs rather than searching for the truth. Such remarks constitute a personal attack on opposing counsel and are clearly improper. Ryan v. State, 457 So.2d 1084, 1089 (Fla. 4th DCA 1984) (improper tactic which can poison the minds of the jurors); Briggs v. State, 455 So.2d 519, 521 (Fla. 1st DCA 1984) (wholly inconsistent with the prosecutor’s role); Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988) (clearly beyond bounds of proper closing argument).”

Moreover, the 1st DCA noted the prosecutor made various improper “Golden Rule” arguments, including by physically pointing the weapon allegedly used at one of the jurors:

“[The prosecutor] also engaged in impermissible “golden rule” arguments, the most egregious of which occurred when he pointed the shotgun involved in the incident at one juror while arguing to the others that this was the same circumstance that confronted the victim. This extreme misconduct is similar to that condemned in Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), wherein the prosecutor stated he would take two jurors and go back in the jury room and kill one of them, with the other being the sole witness. In reversing and remanding for a new trial, the district court held: The appeal to the jurors to place themselves in the position of the state’s sole witness-the supposed “victim” of the crime involved-was an entirely unjustified “golden rule” argument of a type which has been universally condemned…. Indeed, in simultaneously making one juror a victim and another juror a witness to the same “crime,” counsel seems to have plumbed depths never before presented in the decided cases.”

Finding the prosecutor’s misconduct violated Jenkins’s right to a fair trial and was NOT harmless error, the 1st DCA concluded:

“Defense counsel objected to some of the improper arguments, and the record indicates that the trial court did not approve of Terhune’s conduct. However, the court declined to give cautionary instructions and allowed the improper argument to continue unchecked. As a result, defense counsel was obliged to spend his time in closing argument defending himself as well as his client. We are not convinced beyond a reasonable doubt that such pervasive error did not affect the outcome of the trial, as held in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986): The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. Accordingly, the judgment and sentence below are reversed, and this cause is remanded for a new trial.”

In sum, Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990) marks a significant development in Florida’s corpus of case law surrounding improper closing arguments – particularly in cases involving firearms. The 1st DCA (Tallahassee and North FL’s highest court) held that:

• The prosecutor committed misconduct by repeatedly insulting Jenkins and his attorney
• The prosecutor also improperly when made multiple “Golden Rule” arguments, including by physically pointing the shotgun allegedly used in the aggravated assault at a member of the jury
• This may have influenced the jury’s verdict so REVERSAL of Jenkins’s conviction and a new trial was required

Florida’s criminal defense community should take note of Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990), as it makes clear that improper closing arguments can lead to REVERSALS of aggravated assault convictions in Tallahassee and North Florida.

It is important to note that although attorneys have wide “latitude” to say what they wish during closing arguments, their discretion is NOT unlimited. Closing arguments often get “heated” (sex crime/violent crime cases are especially likely to result in emotional closings). But Florida courts are clear that certain comments go OVER THE LINE and may be grounds for a mistrial.

Aggravated assault can carry lengthy prison sentences and heavy financial penalties. If someone is charged, it is vital to find experienced and aggressive legal representation as soon as possible. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share