       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          EARL L. BOGGESS,
                             Appellant,

                                     v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-1943

                             [April 10, 2019]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Joe A. Wild, Judge; L.T. Case No.
312016CF000690A.

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

  Ashley B. Moody, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

WEISS, DALIAH H., Associate Judge.

   Earl Boggess appeals his conviction and life sentence for one count of
second-degree murder with a firearm, raising four issues on appeal. First,
he argues the trial court erred in prohibiting him from introducing two
prior consistent statements to rebut the state’s charge of recent
fabrication. Second, he contends the state’s closing argument contained
improper burden-shifting arguments requiring reversal. We affirm as to
the first and second issues for the reasons discussed below. As to the
third and fourth issues, we affirm without discussion.

   Boggess was charged with second-degree murder with a firearm for the
shooting of his wife, Kathryn “Kathy” Boggess. The two were alone in their
home when the shooting occurred. Throughout the course of the
proceedings, Boggess maintained that he had accidentally shot Kathy
while cleaning a revolver.

   About one hour before the shooting, Boggess, Kathy, his brother-in-
law, and his sister-in-law were at a bar. According to his brother-in-law,
Boggess threw an empty plate up against the bar and seemed angry or
upset while he was there. At one point, another bar patron walked by and
asked Kathy whether she and Boggess were still together. The brother-in-
law claims that Kathy responded by saying “regrettably,” which made
Boggess “very upset” and visibly “angry.” The sister-in-law did not recall
such an exchange, nor did the bartender notice Boggess looking angry.
Boggess denied having any issues with Kathy at the bar and said Kathy
never told the other patron that they were “regrettably” still together.

    Boggess and Kathy then returned home. According to Boggess, Kathy
had wanted to go shooting the next day, so he went to prepare their guns
while she cooked dinner.       He took two guns—a revolver and a
semiautomatic pistol—from his gun safe and laid them on the kitchen’s
island counter.

   Boggess explained that he had been taught to keep his guns on what
was referred to at trial as “cowboy safety.” This method involved leaving
just one of the revolver’s cylinders empty and leaving the gun on the empty
cylinder to ensure it did not accidentally fire a live round. Boggess claimed
that as he prepared to clean the revolver, he pulled the hammer back and,
to his surprise, noticed the gun was on a live round instead of an empty
cylinder.

   He testified that, upon hearing his surprised reaction, Kathy walked
over from the stove to the opposite side of the island counter and grabbed
ahold of his hand and the body of the gun. Boggess offered:

      And I can’t pull down with the gun because the counter’s in
      my way. I can’t go right or left because her hands are holding
      it, so I started going up. I can’t pull it back. It’d be stupid to
      pull it back; I’m still pointing at her. So I started pulling the
      gun up and I was hollering at her and I was telling her, let go,
      you know, Kathy. And the gun went off. We stood there, both
      of us, just looked at each other for a second. Then she
      reached for me. I was reaching for her. She fell to the floor.

Boggess then called 911.

   Boggess’s recorded 911 call was played into the record at trial. The call
began with him saying, “Why’d you make me do this, Kathy?” After
notifying the dispatcher of the shooting and providing his address, Boggess
placed the phone down with the dispatcher still on the line. In the
background, he can be heard slapping something and asking Kathy to talk


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to him. He then said, “No respect,” and “You fucked with the wrong man,
bitch.”

    When police arrived, Boggess refused their orders to drop the revolver.
At several points during his standoff with police, Boggess told the officers
to get help for his wife. He confessed to the officers he had “fucked up”
and shot his wife. He also repeatedly asked the police to shoot him. He
told them they “don’t even want to know” what happened and asked them
if they had a report to fill out.

    One of the officers described Boggess as being “indifferent, but direct”
during the encounter. Another described him as “obstinate” and “matter
of fact.” Eventually, Boggess sat down at the patio table, began smoking
a cigarette, and raised the revolver to his head. Seeing this, an officer fired
a beanbag round that knocked the gun out of Boggess’s hand and caused
him to fall to the ground. The officers then arrested Boggess. One of the
arresting officers noted that Boggess smelled strongly of alcohol.

    Boggess’s defense at trial was that the shooting was accidental. He
offered explanations for several of his initial statements on the date of the
shooting. He testified that he referred to his wife as a “bitch” on the 911
call in an affectionate manner, explaining that her nickname for him was
“asshole,” intimating this is how they referred to one another at home and
that these were just nicknames. He went on to explain the statement of
“you fucked with the wrong man, bitch” as him referring to his wife as
accident-prone and said that he felt apologetic towards her and “wasn’t
himself” when he made the statements.

   Boggess then explained that Kathy grabbed his hand and the gun and
that he was trying to get it away from her. The state had questioned its
forensic witnesses about where one would expect to find stippling if Kathy
had been holding the body of the gun when it went off. Specifically, the
state argued that Boggess changed his testimony based on the forensic
witnesses’ testimony about stippling. In a later demonstration, Boggess
said he did not recall whether Kathy had reached for the gun or his hand,
but that she tried to pull up his wrist to look at the gun.

    While cross-examining Boggess, the state highlighted that Boggess sat
through the trial and had the opportunity to listen to all of the witnesses’
testimony. The state argued that Boggess changed his testimony after
listening to his lawyer’s opening statements and the testimony of the
state’s witnesses. The state also pointed out that Boggess never referred
to the shooting as an accident in his 911 call. Boggess testified that, while


                                      3
he was unsure whether he actually used the word “accident” on the 911
call, he did tell the officers several times that the shooting was an accident.

    On redirect examination, the defense sought to introduce three prior
statements of Boggess where he referred to the shooting as an accident.
Boggess argued the statements were admissible to rebut the state’s charge
of recent fabrication characterizing the shooting as an “accident.” The trial
court permitted the first statement and prohibited the other two. The first
statement was made to police during a post-arrest interview the day of the
shooting. The second statement was an undated letter from Boggess to
his family where he referred to the shooting as an “awful accident.” The
third statement was made to Boggess’s son during a jail visit after Kathy’s
funeral. The parties do not dispute that the last two occurred well after
the day of shooting.

   The standard of review for a lower court’s ruling on the admission or
exclusion of evidence is abuse of discretion, and that discretion is limited
by the rules of evidence. Alexander v. State, 103 So. 3d 953, 954 (Fla. 4th
DCA 2012). The admission of prior consistent statements is within the
sound discretion of the court. See Jenkins v. State, 547 So. 2d 1017, 1020
(Fla. 1st DCA 1989).

   Under the Florida rules of evidence, a statement may be admitted as
non-hearsay if the declarant testifies at trial and is subject to cross-
examination concerning the statement and the statement is “[c]onsistent
with the declarant’s testimony and is offered to rebut an express or implied
charge against the declarant of improper influence, motive, or recent
fabrication.” § 90.801(2)(b), Fla. Stat. (2016) (emphasis added); see also
Chandler v. State, 702 So. 2d 186, 197-98 (Fla. 1997).

    Clearly, in this case, the state suggested that Boggess fabricated his
trial testimony. The state argued that Boggess did not use the word
“accident” on the date of the shooting and arrest. Specifically, the state
asked: “Now, the entire time that the police are at you[r] residence while
you were sitting on the back porch, drinking beer, did you ever tell any of
the officers this was a horrible, terrible accident?” The prosecutor went on
to ask whether Boggess mentioned the word “accident” to various police
officers who responded to the shooting on the same day.

   The first statement was made on the same date as the shooting in a
post-arrest interview. Boggess stated during this interview that the
shooting was an accident. The trial court was well within its bounds in
admitting this statement, as what the prosecutor raised on cross-
examination went directly to Boggess’s interactions with the police on the

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date of the shooting. This statement was consistent with Boggess’s
testimony at trial and was properly offered to rebut the charge that he
fabricated his accidental shooting theory after sitting through trial
listening to all of the other witnesses’ testimony. See § 90.801(2)(b), Fla.
Stat.

    The statements made in Boggess’s letter and statements made to his
son during a jail visit were made significantly after the date of the shooting,
allowing more time for reflection, as noted by the trial court. The trial
court found that these statements went beyond events of the date in
question and were therefore not relevant to what was very specifically
raised by the prosecution on cross-examination. The state pointed out in
its arguments to the trial court that it limited its cross-examination to
Boggess’s characterization of the shooting as an accident on the 911 call
and his statements to police that day. These later two statements could
have resulted from Boggess having time to develop a motive to fabricate.
While the exact dates of the jail visit by the son and the letter are not
known, it is clear these statements were made well after the date of the
shooting and initial investigation. The trial court correctly exercised its
discretion in excluding both the statements in the letter and the
statements from Boggess’s jail visit with his son. See § 90.801(2)(b), Fla.
Stat.

    During closing arguments, the state made three remarks at issue in
this appeal. Boggess argues that based on the state’s repeated comments
that he “couldn’t prove” his theory of innocence, he was in essence
deprived of a fair trial, as the state improperly shifted the burden of proof
to the defense. We outline the remarks below.

   “In the beginning, you heard that the stippling on her hand, on the
back of her right hand was created by the cylinder gap [between the
barrel of the gun and the cylinder], but I guess that’s no longer the
case. But also remember this. It’s not good enough just to say this
is an accident. Not good enough.”

   The defense objected to this comment on the grounds of burden
shifting, and the court overruled the objection.

    “Remember the law. There’s that element in excusable homicide
that does have the word accident in there. But it’s not just sufficient
to prove, and they haven’t in this case and not, and they won’t, but
they can’t just prove an accident. The other elements of that crime
also have to fit in order to find that excusable homicide applies. Then


                                      5
remember, the key phrase that was in there was usual ordinary care.
And they can’t just, they can’t, just can’t prove that.”

   The defense again objected to burden shifting. In response, the trial
court, with agreement of defense counsel, gave a curative instruction:
“Just, just to clear up going back and forth, it’s the State’s burden to prove
the case beyond a reasonable doubt. So just, that’s what we’re talking
about.”

    “No respect. The victim in this case, Kathy Boggess, by all
accounts from this case, she was a sweet person. And there were
some allegations about who made it happen. She didn’t make this
happen. It wasn’t her. It was all him. Kathy was a great cook. She
was sweet. And she might have been fast too. But she wasn’t that
fast. When you pull the trigger, that instantaneously goes off. When
she grabbed, when he says he grabbed her hand and pulled on there,
they’re desperately trying to get that hand now away from that gun,
but they can’t do it.”

  The defense objected again that the state improperly shifted the
burden, and the court overruled the objection.

   This court reviews a trial court’s ruling on prosecutorial closing
comments for an abuse of discretion. Pierre v. State, 88 So. 3d 354, 355
(Fla. 4th DCA 2012). In deciding whether to reverse for improper closing
comments, the court “examines the totality of the errors in the closing
argument and determines whether the cumulative effect of the numerous
improprieties” deprived the defendant of a fair hearing. Card v. State, 803
So. 2d 613, 622 (Fla. 2001). Improper burden-shifting comments are also
subject to harmless error review. Lenz v. State, 245 So. 3d 795, 797-98
(Fla. 4th DCA 2018).

    “[I]t is error for a prosecutor to make statements that shift the burden
of proof and invite the jury to convict the defendant for some reason other
than that the State has proved its case beyond a reasonable doubt.” Gore
v. State, 719 So. 2d 1197, 1200 (Fla. 1998). The state is permitted,
however, to “lawfully respond that the defense argument is not what the
evidence shows . . . .” Austin v. State, 700 So. 2d 1233, 1235 (Fla 4th DCA
1997). Similarly, the prosecution may argue that “based on the evidence
of the case, [the jury] should question the plausibility of the defense’s
theory of the case[.]” Valentine v. State, 98 So. 3d 44, 56 (Fla. 2012).

   This court reviews all three statements in the context in which the
statements were made. Merck v. State, 975 So. 2d 1054, 1062 (Fla. 2007).

                                      6
The comments, when taken in context, were an explanation of the lack of
evidence supporting Boggess’s theory of defense. See Austin, 700 So. 2d
at 1235. The statements were permissible attacks by the prosecution on
the defense’s “accident” theory, reminding the jury that just saying the
shooting was an accident did not amount to a valid defense. All three
comments permissibly highlighted the state’s position that this shooting
was no accident and that the defense’s evidence did not support its
arguments.

   The second remark was confusing and inaccurate in that the state
repeatedly used the word “prove” when referring to the defense case.
However, upon objection, the trial court gave a curative instruction with
the consent of defense counsel, thereby curing any potential for confusion
or error. This court has previously found that an immediate curative
instruction on the burden of proof may be sufficient to clarify an issue at
bar and remove any confusion. Thomas v. State, 726 So. 2d 369, 372 (Fla.
4th DCA 1999).

   Based on the trial court’s curative instruction, the comments taken in
context, and the record as a whole, we find that the remarks were not
improper. Furthermore, any error would be harmless. See Lenz, 245 So.
3d at 797-98.

   Therefore, we affirm all issues.

   Affirmed.

WARNER and GROSS, JJ., concur.

                            *         *       *

   Not final until disposition of timely filed motion for rehearing.




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