         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED

CRAIG B. KERRY,

             Appellant,

 v.                                                    Case No. 5D17-1006

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed December 1, 2017

Appeal from the Circuit Court
for Orange County,
Leticia J. Marques, Judge.

James S. Purdy, Public Defender, and
Sean K. Gravel, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney         General,
Tallahassee,   and   Samuel       Perrone,
Assistant Attorney General,       Daytona
Beach, for Appellee.

PER CURIAM.

      Craig Kerry appeals his convictions for attempted manslaughter, robbery, and

aggravated battery; each charge included the discharge of a firearm causing great bodily

harm and the use of a mask. Kerry raises five issues on appeal, only two of which merit

discussion. Kerry submits that he is entitled to a new trial because the State introduced

evidence of collateral crimes and failed to redact Kerry’s use of racial epithets in a
recorded interview that was played for the jury. Neither of the issues was preserved for

appeal. Because neither issue was preserved, Kerry must establish fundamental error to

be entitled to relief. “To be fundamental, an error must ‘reach down into the validity of the

trial itself to the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.’” Farina v. State, 937 So. 2d 612, 629 (Fla. 2006) (quoting

Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005)). The error must go to “the foundation of

the case.” Id.

       After his arrest for a violent robbery at a Gators Dockside, Kerry claimed during

interrogation to have an alibi. Kerry contended that he had smoked a “blunt” with his “lady”

at his mother’s house and later gambled with friends at a hotel. However, when confronted

with a video showing him exiting the vehicle that was observed at the robbery scene,

Kerry changed his story. He then claimed that he loaned the vehicle 1 to two other

individuals who committed the robbery. He alleged that they had him park the car so it

appeared that he was driving. During the interrogation, Kerry used racial epithets when

speaking of those individuals. He also used racial slurs while alone in the room.

       Kerry himself injected the collateral crimes evidence into the case in an effort to

establish an alibi. He told the officers that he was not involved in the robbery because he

was smoking a “blunt” with his “lady” and gambling with his friends. Thus, the admission

of this evidence did not amount to fundamental error.

       Although Kerry himself used the racial epithets, the introduction of these

statements is more problematic. It would have been difficult but not impossible to redact




       1   The vehicle observed at the scene of the robbery belonged to Kerry’s mother.



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the comments Kerry made with the officers in the room. Redaction of the comments Kerry

made while alone in the interrogation room would have been easier. 2 Unless such

language is relevant, it should be excluded. We caution the State that in our view, under

most circumstances, the use of racial epithets should be redacted. See, e.g., McCallister

v. State, 779 So. 2d 615, 616 (Fla. 5th DCA 2001). However, under the facts and

circumstances of this case, we do not find that the State’s failure to redact those

statements from Kerry’s interview constituted fundamental error.

      AFFIRMED.

COHEN, C.J., SAWAYA and EDWARDS, JJ., concur.




      2 The prosecutor made some efforts to redact Kerry’s statement but the record on
appeal does not reflect the nature or extent of those efforts.


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