       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               JOEL HUNT,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-1577

                           [November 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Edward H. Merrigan Jr., Judge; L.T. Case No. 16-5155
CF10A.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, C.J.

    Appellant was convicted of aggravated battery with a hate crime. At
trial, the victim and his friend both testified to appellant stabbing the
victim. Appellant’s wife and son testified that the victim hit appellant
before the stabbing. Appellant’s defense was that his actions were self-
defense. The state introduced the testimony of a detective who interviewed
the victim at length. During the detective’s testimony, the state directly
asked whether, based on his training and experience, “there [was] self-
defense used in this case by the defendant.” The detective responded,
“[N]o.” The trial court erred in admitting this opinion testimony.

    The detective testified that, based on his training and experience, there
was no self-defense legitimately available for appellant. If there was no
self-defense, then appellant was effectively left with no defense. The
credibility of appellant’s claim of self-defense was exclusively within the
province of the jury. The deputy’s testimony invaded this exclusive
province. Thus, we reverse and remand for a new trial. 1

    The victim, an African American, was visiting his friend when appellant,
a neighbor of the friend, came to sit on a bench next to the victim. The
victim asked appellant why he was sitting so close, and appellant stated
that it was his bench. Appellant was drinking alcohol and appeared
intoxicated. Both the victim and friend declined appellant’s offer of
alcohol. At that point, appellant talked about killing his wife because she
was having an affair with an African American, using a racial epithet. The
friend then asked appellant if he was a racist. Appellant said his parents
were racists, and then proceeded to use the same racial epithet over and
over. The victim repeatedly asked appellant what appellant had just said.
Appellant told the victim that he would not “f---ing win.” The friend heard
the victim state, “Say that s--t again.” The victim also heard appellant say
to appellant’s son, “Boy. Boy. Get him, boy. Attack.”

    The victim then felt something “pop,” at which time he told his friend
that he had been stabbed and to call the police. According to the victim,
appellant tried to stab him again and ran after him saying, “I’m going to f-
--ing kill you, n----r.” The victim ran away, with appellant saying, “Come
here, n----r. Let me finish the job.” Appellant’s son and wife denied that
appellant chased the victim following the stabbing.

   The police then arrived at the scene and ordered appellant, who had
returned to his house, to exit the house and put his weapon down.
Appellant later gave a statement to Detective Huertas. Appellant claimed
that the victim hit him and broke his glasses. At trial, appellant’s wife and
son testified that the victim was hitting appellant in the head before
appellant stabbed the victim. The victim’s friend stated that he saw the
victim standing over appellant, but that the victim did not put his hands
on appellant.

   During the trial, the detective testified about his investigation. The
detective had spoken at length with the victim and appellant. The state
introduced the following statement appellant gave to the detective:

      I had a bench, a nice little bench and I sit there. One of the
      gentleman was the neighbor. The other black has been sitting
      out doing drug deals all god damn day, we see them all the
      time. We haven’t seen him since the other black guy moved
      two weeks ago. He came up and started trying to make me

1We affirm all other issues. The clerical correction in the conviction has become
moot based on the disposition of this case, and all other issues are without merit.

                                        2
      buy drugs. So I’m sitting there drinking and all that and we’re
      standing—the conversation gets a little sh--ty. The neighbor
      guy gets up and walks away. The guy from next door, he
      doesn’t live there anymore. It was his mother-in-law that
      owned the place but she sold the place now so we have a new
      landlord, all right. And this guy starts, I mean, I don’t know
      how to explain—I’m sitting there and he’s right here.
      There’s—he’s pushing at me and he started to slap me in the
      head. Everything I can f---ing do.

         ....

      [T]his guy started slapping me in the head, and I drove him in
      the f---ing chest. F--k off me, man.

    During the testimony of Detective Huertas, the state asked him the
following:

      Q Detective Huertas, during your investigation did you find
      that the defendant used the word n----r towards the victim[] .
      . . on March 5, 2016?

      A Yes.

      Q During your investigation, was there any evidence that the
      victim . . . was hitting the defendant?

      A No.

      Q Based on your training and experience, was there self-
      defense used in this case by the defendant?

      A No.

      Q Based on your training and experience, did the defendant
      stand his ground in any way?

      A No.

      Q Based on your training and experience, was the defendant
      defending anyone else?

      A No.


                                    3
       [DEFENSE COUNSEL]: I am going to object as to invading the
       province of the jury. 2

   The trial court overruled appellant’s objection. Subsequently, appellant
was convicted of aggravated battery with a hate crime. Appellant appeals
the conviction.

   We review this conviction, and the trial court’s decision to admit the
detective’s testimony as evidence, under the abuse of discretion standard.
Jackson v. State, 107 So. 3d 328, 339 (Fla. 2012). The trial court’s use of
discretion still must comport with the rules of evidence. Id.

   Appellant argues that Detective Huertas’s testimony about the validity
of his claim of self-defense invaded the exclusive province of the jury. The
state responds that this issue was not preserved. The state claims that
only the last question in the string of questioning by the state was
preserved with a contemporaneous objection, since only after the fifth
question did appellant object. The key question in dispute was the third
question.

   An objection is required to be made at the time of error “to give the trial
court the opportunity to correct” the error. Mansueto v. State, 148 So. 3d
813, 815 (Fla. 4th DCA 2014). Still, “[a]n objection need not always be
made at the moment an examination enters impermissible areas of
inquiry.” Jackson v. State, 451 So. 2d 458, 461 (Fla. 1984). An issue can
be properly preserved if the objection is made “shortly after the comment
and before the witness was relieved.” Bradley v. State, 214 So. 3d 648,
654-55 (Fla. 2017); see also Fratcher v. State, 37 So. 3d 365, 367 (Fla. 4th
DCA 2010) (holding that the issue was preserved since the objection was
made “shortly thereafter” the statement in question, and “soon enough
that the judge could have issued a curative instruction to the jury had he
sustained the objection”).

   This court has determined that a contemporaneous objection preserved
a motion for mistrial where the motion was made three questions after the
objectionable comment. Roban v. State, 384 So. 2d 683, 685 (Fla. 4th DCA
1980); see also Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 185
(Fla. 3d DCA 2005) (finding an objection made “[f]our to five questions”
after the testimony in question was timely and preserved the issue for
review because of “the closeness in time between [the] testimony and

2 This transcript reflects the last version of the trial transcript. It is appropriate
to abide by the corrected transcript when it is available. See Myers v. State, 557
So. 2d 682, 682-83 (Fla. 3d DCA 1990).

                                          4
counsel’s objection”). Based on the foregoing authority, we find the
objection in this case was timely and preserved the issue for our review.

   When the detective was asked whether “[b]ased on your training and
experience, was there self-defense used in this case by the defendant” and
he said, “No,” the detective entered an “impermissible area[] of inquiry.”
Jackson, 451 So. 2d at 461. The law is clear. “A police officer’s testimony
or comments suggesting a defendant’s guilt invades the province of the
jury to decide guilt or innocence.” Lopiano v. State, 164 So. 3d 82, 84 (Fla.
4th DCA 2015).

    Thus, “[i]t is clear that error is occasioned where a witness, including a
lay witness, is permitted to offer her opinion about the guilt of the
defendant.” Zecchino v. State, 691 So. 2d 1197, 1198 (Fla. 4th DCA 1997).
It is especially harmful when a police officer offers an opinion on the guilt,
or in this case, the sole defense of appellant. “Police officers, by virtue of
their positions, rightfully bring with their testimony an air of authority and
legitimacy. A jury is inclined to give great weight to their opinions . . . .”
Salomon v. State, 267 So. 3d 25, 32 (Fla. 4th DCA 2019) (citation omitted).

    A police officer’s testimony is especially prejudicial when it invades the
province of the jury as to the defendant’s sole defense. In Bartlett v. State,
993 So. 2d 157 (Fla. 1st DCA 2008), the investigator ruled out the
possibility that the defendant acted in self-defense, where the defendant
was relying on a “battered spouse syndrome” defense after being charged
in the murder of her boyfriend. The First District held that

      by allowing the State’s questions and [the investigator’s]
      detailed answers on a matter within the realm of an ordinary
      juror’s knowledge and understanding, the trial court
      improperly invaded the province of the jury as the fact-finder
      and allowed the detective to serve as a fact-finder during the
      guilt phase by determining that self-defense was not a viable
      defense for Appellant.

Id. at 161. In this case, the detective acted effectively as a fact-finder by
neutralizing appellant’s defense in front of the jury. This was error.

    In many cases, courts have found that the erroneous admission of
testimony that invaded the exclusive role of the jury was not harmless
error. See, e.g., Martinez v. State, 761 So. 2d 1074, 1080-81 (Fla. 2000)
(finding that the detective’s improper opinion as to the defendant’s guilt
was not harmless error in light of the evidence in the record); Edwards v.
State, 248 So. 3d 166, 167 (Fla. 4th DCA 2018) (holding that a police

                                      5
officer’s testimony on credibility invaded the province of the jury and was
not harmless error when the officer explained that, “based on his training
and experience in conducting interviews, certain body language and
mannerisms indicate deception,” and the defendant was displaying such
mannerisms); Bartlett, 993 So. 2d at 166-67 (holding that the state was
unable to meet its burden to show harmless error when an officer gave
opinion testimony as to the existence of self-defense). That is true in this
case as well. The admission of the detective’s testimony about appellant’s
self-defense, or rather lack of self-defense, was harmful error.

   In summary, we find that the admission of the detective’s testimony
about appellant’s theory of self-defense invaded the exclusive province of
the jury and was harmful error. We, therefore, reverse appellant’s
conviction and sentence and remand for a new trial.

   Reversed and remanded.

CONNER and KUNTZ, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     6
