Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-1517 _____________________________ NICHOLAS VALLIA, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Amy P. Brodersen, Judge. September 9, 2026 PER CURIAM. Nicholas Vallia challenges his judgment and sentence on the grounds that the trial court erred in denying three motions for mistrial. The first motion argued that the State’s cross- examination of a defense witness constituted an impermissible comment on Vallia’s right to remain silent. The other two motions were directed at comments made during the State’s closing argument; one asserted a “Golden Rule” violation and the other argued the prosecutor made a false statement of law. As discussed below, we affirm. I. This case began with harmless banter between two groups of teenagers at a bowling alley. The exchange between the groups evolved, however, and the teenage banter escalated to profanity and hostile remarks. After bowling, Vallia and his group of friends remained in the parking lot to drink alcohol, and one of Vallia’s friends invited the other group over to play a dice game. When the other group declined, profanities and insults were exchanged. The other teenagers eventually left the parking lot. Soon after, Vallia and his girlfriend also drove out of the parking lot. At some point, Vallia’s vehicle encountered the vehicle occupied by teenagers from the other group. From his vehicle, Vallia shot into the other vehicle, striking the driver. The State charged Vallia with three counts: (1) attempted second-degree murder with a firearm; (2) shooting at, into or within an occupied vehicle; and (3) shooting or discharging a firearm from a vehicle. The State’s theory was that Vallia, intoxicated and angry from the confrontation, intentionally drove alongside the other teenagers’ vehicle and shot into it before fleeing without rendering aid or contacting law enforcement. Vallia argued that the shooting was self-defense—the other teenagers attempted to force him off the road, and he shot to stop their attack. He testified that he did not immediately contact law enforcement because his priority was getting home safely to his family, and he voluntarily surrendered after learning that authorities were looking for him. Ultimately, the jury found Vallia guilty as charged, and the trial court sentenced him to twenty-five years’ imprisonment for attempted second-degree murder and 112.2 months’ imprisonment for his other two counts, all sentences to run concurrent with one another. II. Vallia’s first motion for mistrial challenged the State’s cross- examination of Matthew Pollock, a friend who was present at the bowling alley but left before the shooting. On direct examination, Pollock testified that Vallia called him after the shooting. Vallia sounded scared and shaken and said that he shot another car after it tried to run him off the road. On cross-examination, the State 2 asked Pollock whether he told other members of the group—not Vallia—to avoid talking to anyone about the incident. Pollock responded: “[M]y dad is in law enforcement. So I’ve always been taught that you shouldn’t talk to anyone without a lawyer present.” Vallia objected, arguing that the remark impermissibly commented on Vallia’s right to remain silent. The trial court denied Vallia’s motion, finding that Pollock volunteered the statements. Vallia makes the same argument on appeal and contends that reversal is required. We disagree. Vallia principally relies on State v. Hoggins, where the Florida Supreme Court held that the State improperly impeached a defendant by questioning him about his failure to provide law enforcement with the same exculpatory account he later presented at trial and by emphasizing that omission in closing argument. 718 So. 2d 761, 772 (Fla. 1998). As the Court concluded, protection against improper impeachment extends to post-arrest, pre- Miranda * silence because the absence of Miranda warnings does not diminish the constitutional right to remain silent. Id. at 770. Vallia also cites State v. Smith, 573 So. 2d 306, 316 (Fla. 1990), for the proposition that the State may not circumvent this rule by eliciting evidence concerning what a defendant failed to say when speaking with law enforcement. But Pollock’s comment is distinguishable from the exchanges in those cases. Here, the prosecutor’s questions were directed at Pollock’s communications with third parties. The prosecutor did not ask whether Vallia invoked his right to remain silent, refused to speak with police, or requested counsel. Further, Vallia had testified during direct examination that he did not contact law enforcement after the shooting and explained his reasons for not doing so before Pollock testified. Thus, we conclude the trial court did not err in denying Vallia’s first motion for mistrial. * Miranda v. Arizona, 384 U.S. 436 (1966). 3 III. Vallia then twice moved for mistrial during the State’s closing argument. First, Vallia argued that the State misstated the law by arguing that “[d]ischarging a weapon out of a vehicle is not legal. Firing into another vehicle is not legal, and [Vallia] did not do so with the usual ordinary caution and without any unlawful intent.” According to Vallia, these statements were incorrect because, in certain circumstances, firing out of a vehicle can be lawful. The trial court denied Vallia’s motion and instructed the jury on justifiable use of deadly force. Here, even if the State’s isolated comment could have been more precise, it was not presented as a substitute for the court’s instructions on excusable attempted homicide or justifiable use of deadly force. Indeed, the trial court properly instructed the jury on excusable attempted homicide and justifiable use of deadly force. The jury is presumed to follow the trial court’s instructions, and those instructions control over counsel’s statements during closing argument. Weeks v. Angelone, 528 U.S. 225, 234 (2000). Later in its closing, the State argued Vallia committed the crime wantonly, remarking that “[w]hen you’re driving down the road, you’ve been drinking and you’re angry and these kids have been annoying you, and you decide to discharge a firearm to shut them up, make them leave you alone[.]” Vallia argues that this comment violated the “Golden Rule” by urging jurors to view the case from Vallia’s perspective as an angry, intoxicated shooter, thus unfairly appealing to emotion and resulting in harmful, prejudicial error that was not harmless beyond a reasonable doubt. We are not persuaded. “[A]ttorneys are given wide latitude during closing argument to review the evidence, draw reasonable inferences from the evidence, and advance all legitimate arguments.” Tuten v. State, 326 So. 3d 826, 834 (Fla. 1st DCA 2021) (citing Patrick v. State, 104 So. 3d 1046, 1065 (Fla. 2012)). Unlike comments designed to appeal to jurors’ personal interests, fears, or sympathies, the challenged remark was made during the State’s discussion of the wanton or malicious element of the offense and was tied to the 4 State’s interpretation of the evidence regarding Vallia’s motive and intent. The prosecutor did not repeatedly urge jurors to identify with a victim or defendant, nor did the challenged statement become a central theme of the State’s closing argument. Rather, the comment was isolated and occurred in the context of summarizing the evidence supporting the State’s theory of the case. Compare Cardona v. State, 185 So. 3d 514, 523 (Fla. 2016) (concluding that the prosecutor’s improper comments “which pervaded the prosecutor’s closing argument, were not harmless beyond a reasonable doubt”). Accordingly, although the prosecutor’s use of the second person pronoun arguably personalized the facts, the trial court did not abuse its discretion in denying Vallia’s motion for mistrial. See Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008). AFFIRMED. OSTERHAUS, C.J., and NORDBY and NEFF, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ D. Gray Thomas of Law Office of D. Gray Thomas, Jacksonville, and Gene E. Mitchell, Pensacola, for Appellant. James Uthmeier, Attorney General, and Amanda A. Uwaibi, Assistant Attorney General, Tallahassee, for Appellee. 5