Tallahassee’s Highest Court Addresses Improper Opening, Closing Statements in Vehicular Homicide Case

April 24, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 1st District Court of Appeal AFFIRMED a defendant’s vehicular homicide conviction despite concerns over a prosecutor’s conduct during opening statements and closing arguments in the case.

CASE: Wallace v. State, 327 So.3d 1188 (Fla. 1st DCA 2021)

Charge(s): Vehicular Homicide

Outcome: Conviction AFFIRMED, as the prosecutor’s comments during opening statements and closing arguments did not warrant a mistrial.

Vehicular Homicide in Florida

In Florida, vehicular homicide (Fla. Stat. 782.071) is a very serious felony offense. Vehicular homicide is typically punishable by up to 15 years in prison and a $10,000 fine. However, it is considered a first-degree felony (up to 30 years in prison and a $10,000 fine) if either (or both) of the following are true:

• The defendant has a prior conviction for DUI manslaughter, BUI manslaughter, vehicular homicide or vessel homicide (Trenton’s Law, 2025)
• The defendant fails to give information to authorities, render aid to the victim(s), or leaves the scene of the accident (e.g. fails to stop)

For someone to be guilty of vehicular homicide under state law, the following elements must all be proven beyond a reasonable doubt:

• The defendant operated a vehicle
• The defendant’s operation of a vehicle caused the death of one or more victims
• The defendant operated their vehicle in a reckless manner (e.g. in a manner they knew or should have known was likely to cause death or great bodily harm)

The two most commonly debated elements in a vehicular homicide prosecution are – whether the defendant drove RECKLESSLY, and whether the defendant was a PROXIMATE CAUSE of the victim’s death. 

Though it is commonly believed that the State must prove a person was entirely responsible for the victim’s demise, this is not the case. Someone is considered the CAUSE of the victim’s death if they were involved in the fatal collision, unless one of the following is true:

• The victim’s conduct was the SOLE CAUSE (e.g. entirely responsible) for their death
• A third party’s unnatural and unforeseeable conduct (either independently or in response to the defendant’s actions) cause the victim’s death (Reaves v. State, 979 So.2d 1066 (Fla. 1st DCA 2008))

Make no mistake – the State must still prove beyond a reasonable doubt that neither of the above were true if the defendant argues they were NOT the cause of the victim’s death. The burden of proof remains with the State to establish each and every element of the offense.

Recklessness is typically the hardest thing to prove in a vehicular homicide case. For a person to have driven recklessly, the following must be true:

• The defendant operated their vehicle in a manner they knew or should have known was likely to cause death or great bodily harm (House v. State, 831 So.2d 1230 (Fla. 2d DCA 2002))
• The defendant did more than simply exceed the speed limit, as this is negligence – not recklessness (Luzardo v. State, 147 So.3d 1083 (Fla. 3d. DCA 2014))

Note: Recklessness for vehicular homicide and vessel homicide purposes (Fla. Stat. 782.072) has the same definition under Florida law. To learn more about the similarities between vehicular and vessel homicide, click here.

Opening Statements and Closing Arguments

Opening statements and closing arguments are key aspects of a Florida criminal case – including vehicular homicide cases. Opening statements function as a “preview” to what jurors can expect to hear and see at trial. 

An opening statement is not an argument, and if arguments are improperly made during opening statements, this can be OBJECTED to by the opposing party. The objective of a good opening is to get the jury “primed” to view the evidence in a light favorable to the speaking party. 

For the State, this means getting the jurors to focus on inculpatory (e.g. incriminating) evidence – so that when they eventually deliberate, they will be predisposed to find the defendant guilty. For the defense, the opposite is the case. 

An experienced, aggressive Florida criminal defense attorney will advise jurors to look for flaws in the State’s case. Those flaws (reasonable doubts about the defendant’s guilt) may arise from the evidence, conflicts in the evidence, or a lack of evidence. Openings are also a first impression – so it is important to make a good one!

Closing arguments, by contrast, are the “last word” each party to the case (e.g. State and defense) gets before the jury is instructed on the law and sent to the deliberation room.

The goal of a good closing argument is to give jurors a lens through which to view the evidence and testimony they have seen and heard over the course of the trial – thereby IMPROVING the chances that a favorable verdict for the arguing party will be returned.

Though many believe the State goes first during closings, followed by the defense, this is NOT the entire story. 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 argument)
• Finally, the State (e.g. prosecutor) gives a REBUTTAL CLOSING (which is the true “last word” before deliberations) to refute the defense’s closing argument

It is important to note that opening statements and closing arguments CANNOT be considered as evidence. The judge will instruct the jury on this point before deliberations commence. However, this DOES NOT mean they do nothing – in fact, they can significantly influence the outcome of a case.

This is because people tend to think in NARRATIVES. Thus, an effective opening statement and closing argument delivered by an experienced, aggressive Florida criminal defense attorney will “tell a story” that makes it more likely the jury will find in favor of the defense (not guilty).

The defense’s closing, in particular, is critical. This is because the defense gets only ONE “bite at the apple.” Since the defense is sandwiched by the State (e.g. State goes first and last), its closing must be particularly powerful for the jury to remember it and resonate with it.

Moreover, a closing argument may result in the jury REFRAMING how they view the evidence in the case. As the State may introduce more evidence and testimony than the defense, the jury may initially feel inclined to believe the State’s version of events.

But if the jury already has questions about the State’s case (and they usually do), an experienced, aggressive Florida criminal defense attorney can give voice to their skepticism and explain why it is justified. This can be very effective in pushing the jury towards rendering a NOT GUILTY verdict.

Although many believe closing arguments are “anarchical” (e.g. anything can be said), this is not the case. There are rhetorical lines that cannot be crossed – and if they are crossed, OBJECTING contemporaneously is critical to preserve the issue for appeal (if the defendant gets convicted).

Examples of 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”
• Relying on facts not in evidence or misrepresenting the law (Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994))
• Improperly bolstering the testimony of an alleged victim or law enforcement officers (Williams v. State, 673 So.2d 974 (Fla. 1st DCA 1996))
• Calling the defendant ugly names/insulting them
• Saying the case is about getting “justice” for the victim (Cardona v. State, 185 So.3d 514, 521 (Fla. 2016))
• Improperly commenting on the defendant’s right to remain silent 
• GOLDEN RULE arguments (e.g. “Imagine how scared the victim was at that moment – so find the defendant guilty!”)((Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990))

The same goes for opening statements. As previously noted, openings are not arguments at all. Thus, reliance upon any of the above tactics – or attempting to persuade the jury to render a particular verdict before the evidence has even been presented – is impermissible.

The effect of objecting to improper openings and closings at the time they occur is significant. This is because the appellate standard of review changes if this is done:

• 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 major Florida vehicular homicide case, a defendant claimed that the prosecutor engaged in misconduct during opening statements and closing arguments. As a result, he urged Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) to reverse his conviction and grant him a new trial.

However, the 1st DCA DECLINED to do so, and instead AFFIRMED his conviction. Let’s take a look at why by examining the case – Wallace v. State, 327 So.3d 1188 (Fla. 1st DCA 2021) – and discussing what it means for defendants in Florida concerned about violations of their right to a fair trial in vehicular (and vessel) homicide cases.

KEY CASE: Wallace v. State, 327 So.3d 1188 (Fla. 1st DCA 2021)

In Wallace, the defendant (Wallace) was arrested and charged with vehicular homicide. At trial, the following was revealed, according to the 1st DCA:

• Wallace rented a white Dodge Challenger and was the only authorized driver on the rental agreement
• Prior to the accident, Wallace was seen driving in the vehicle, though his windows were tinted
• The Dodge hit two pedestrians, an adult female and her baby, causing their deaths
• Wallace was wearing a GPS monitor at the time as a bond condition in an unrelated case
• The GPS monitor showed he was in the vicinity of the accident at the time it occurred
• Once the vehicle was located by law enforcement, Wallace removed his GPS monitor and fled the area
• During opening statements, the prosecutor said: “Based on the quality of the evidence in this case, the options for the defense are severely limited. The defense may claim that, yes, although he did all those things, there isn’t a witness to testify that he got out of the driver’s seat after that crash.”
• During closing arguments, the prosecutor said: ““Why? I was listening throughout the entirety of [defense], an esteemed member of our local Bar, for an explanation of why, and I never heard one. That’s because there is no explanation other than he did it. The Defense is choosing to ignore all of the defendant’s actions.”
• Both of these comments were objected to, but the objections were overruled
• Wallace was ultimately CONVICTED

On appeal, Wallace argued the prosecutor’s “misconduct” during openings and closings required a NEW TRIAL. Wallace claimed that during openings, the prosecutor improperly “denigrated” the defense – while in closings, the prosecutor impermissibly “criticized” the defendant for not testifying.

However, the 1st DCA REJECTED these characterizations of the prosecutor’s comments and affirmed Wallace’s conviction. First addressing the opening statement, the 1st DCA wrote:

“Appellant first argues statements made by the prosecutor during opening argument were improper and warranted a mistrial. During opening argument, the prosecutor stated, “Based on the quality of the evidence in this case, the options for the defense are severely limited. The defense may claim that, yes, although [Appellant] did all those things, there isn’t a witness to testify that he got out of the driver’s seat after that crash.” Appellant claims on appeal that the statement denigrated his defense. However, this is not the specific argument that was presented to the trial court; thus, it is not preserved for appeal. See Bell v. State, 108 So. 3d 639, 650 (Fla. 2013) (“Bell’s contemporaneous objection to comment was presented on a legal basis other than that which he now argues on appeal. His objection therefore failed to preserve the issue for appeal.”); Braddy v. State, 111 So. 3d 810, 836 (Fla. 2012) (holding that to preserve an issue for appellate review, the specific legal argument must be presented to the trial court).”

“Yet, even if the issue was preserved, reversal is not warranted. As pointed out by Appellant, it is improper for the State to denigrate the theory of defense and stating that Appellant’s options for defense were “severely limited” could be considered improper. See Evans v. State, 177 So. 3d 1219, 1237 (Fla. 2015); Jackson v. State, 147 So. 3d 469, 486 (Fla. 2014) (noting it was improper for a prosecutor to state that defense counsel was “doing all they can to throw whatever they can against the wall to see what sticks” and cautioning against the prosecution “making comments that ridicule a defendant for presenting a defense”). However, because the statement here was relatively minor and isolated, it does not require reversal.”

Next, the 1st DCA addressed the prosecutor’s closing argument. Rejecting Wallace’s argument of impropriety on the prosecutor’s part, the 1st DCA wrote:

“In Appellant’s fifth issue, he claims statements made by the prosecutor during closing argument suggested Appellant should have testified and were, thus, improper. The State began its rebuttal closing argument as follows: “Why? I was listening throughout the entirety of [defense], an esteemed member of our local Bar, for an explanation of why, and I never heard one. That’s because there is no explanation other than he did it. The Defense is choosing to ignore all of the defendant’s actions.” Appellant is correct that it is improper for a prosecutor to comment on a defendant not testifying. However, when the statement here is read in context, it shows the prosecutor was not commenting on Appellant not testifying, but rather, the State was asking what the explanation would be for Appellant’s actions if he were not driving the vehicle at the time of the accident. Such a comment is not improper; thus, we find the trial court did not err in denying Appellant’s motion for mistrial.”

Put simply, since Wallace FAILED TO OBJECT on the PROPER grounds during opening – and miscontextualized the prosecutor’s remark during closing arguments – reversal was not required.

In sum, Wallace v. State, 327 So.3d 1188 (Fla. 1st DCA 2021) marks a significant development in Florida’s corpus of case law surrounding improper opening statements and closing arguments. Florida’s 1st DCA (Tallahassee and North FL’s highest court) held:

• The prosecutor’s opening remarks, while improper, were not adequately objected to by the defense at the trial level
• They also were not so improper as to render a mistrial
• Moreover, the prosecutor’s allegedly “improper” statement in rebuttal closing was NOT an attack on Wallace’s right to remain silent
• As there was no legal error in not granting a mistrial, Wallace’s conviction was affirmed

Florida’s criminal defense community should take note of Wallace v. State, 327 So.3d 1188 (Fla. 1st DCA 2021), as it makes clear appellate courts will not always reverse convictions based on seemingly “improper” opening statements and closing arguments.

It is critical to find experienced and trusted legal representation as soon as possible if someone is charged with vehicular homicide, DUI manslaughter, BUI manslaughter or vessel homicide. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

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.

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