       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           ASHLYN SALOMON,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D18-679

                             [March 20, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 56-2016-CF-002316A.

   Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special
Assistant Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   A jury rejected Ashlyn Salomon’s claim of self-defense and convicted
him of second degree murder with a firearm. Because of a fundamental
error in the charge to the jury on his legal defense and improper credibility
bolstering of witnesses by a state “expert,” we reverse and remand for a
new trial.

    This case involved a shooting outside of an apartment house. Appellant
lived in Apartment B with his girlfriend Briana Wilson, two children and
Briana’s grandmother. Briana’s mother lived in Apartment D with her
boyfriend, the victim Jonathan Maciel, and one other person.

    The witnesses to the shooting and the events leading up to it were all
civilians. Law enforcement did not become involved until after the
shooting occurred. The case turned on the credibility of witnesses––which
witnesses the finders of fact believed would determine the outcome.

   Briana’s mother and the victim got into a verbal argument about the
victim’s communication with another woman. Briana went into the
apartment, saw her mother arguing with the victim, and walked back
outside. Briana called appellant at work and told him about the fight.
While on the phone, Briana heard a loud “boom noise.” She opened the
door and saw the victim hit her mother. Briana told appellant she would
have to call him back. She thought she had hung up the phone, but the
line remained open and appellant overheard the unfolding ruckus.

   The argument between the mother and the victim continued outside of
the apartment. Briana began screaming at the victim. Hearing the
commotion on the phone, appellant got in his car and rushed home.

   Within 8-10 minutes, appellant sped into the apartment complex,
parked in the middle of the parking lot, and jumped out of his car.
Appellant testified that when he pulled up, it looked like the victim had
shoved Briana. There were different versions of the words the victim
exchanged with appellant, but the witnesses agreed that the victim and
appellant ran towards each other and began “tussling” and wrestling.
Briana and her mother separated the two men. The victim retreated to his
apartment. Appellant fell back to his car, where he stood behind the open
driver’s side door.

   Reaching into his car, appellant took out his firearm, and held it near
his side because he felt that he needed his firearm to defend himself.
Briana stood in front of appellant because she did not want him to chase
the victim. Briana began pleading with appellant, telling him to stop and
think of their daughter.

   The victim reemerged from the apartment and headed towards
appellant. There were varying accounts about how fast the victim
approached appellant. There were also different versions of the lighting
conditions. Most importantly, the witnesses varied in their description of
the victim’s hand placement as he headed for appellant. Only appellant
testified that the victim had one hand concealed behind his back or at his
side. No witness, not even appellant, saw a weapon in the victim’s hands.

   As the victim approached the front of appellant’s car, appellant raised
his gun and fired all 18 rounds; he claimed that he kept shooting because
the victim kept coming at him. He testified that the victim was facing him
the whole time until he twisted and fell. Other witnesses supported the
view that the victim stopped after the first shot and began to retreat to the
apartment. After the shooting, appellant backed his car into a space,
placed his gun inside the car, and waited for the police to arrive.



                                    -2-
   Multiple officers from the Fort Pierce Police Department responded to
the scene within minutes of the shooting. Lying face down on the ground,
the victim was pronounced dead at the scene. According to the medical
examiner, the victim died of multiple gunshot wounds. Seven of the 18
bullets hit the victim and 5 of those 7 wounds were on the victim’s lower
back, buttocks, and back of his arm. There was a single wound on the
side of the victim’s face and a single wound on the inside of the right elbow.
The medical examiner testified that the gunshot wounds were consistent
with the victim turning away and being shot while rotating. He also
acknowledged that the wounds were consistent with the victim just
twisting and turning while staying in one place.

    Appellant testified that he was afraid for his life and Briana’s life, and
felt that the shooting was justified. He knew that the victim owned a
firearm, and believed that the victim went to retrieve it when he went back
inside his apartment. He felt like the victim had something in his hands
when he ran towards him, but he could not see what it was.

    After a stand-your-ground hearing, the trial court entered a written
order denying appellant’s motion for declaration of immunity and
dismissal. The court summarized the pertinent facts presented at the
hearing, and concluded that “[t]here was not any credible testimony or
evidence presented to support the Defendant’s version of the shooting.”
The court gave great credence to two “uninvolved witnesses” who had “no
interest in the case.” One of these witnesses said that the victim had no
weapon in his hands as he approached appellant in a “power walk” as if
ready to continue the fist fight; the other witness indicated there was
nothing in the victim’s hands when he fell to the ground. They also
supported the notion that the victim began to retreat after the first bullet
hit him, but appellant kept shooting at the victim’s back.

   We find no error in the procedure the trial court used to handle the
stand-your-ground hearing prior to this court’s decision in Hight v. State,
253 So. 3d 1137 (Fla. 4th DCA 2018), which held that the 2017
amendment contained in subsection 776.032(4), Florida Statutes (2017),
did not apply retroactively. We find no error in the court’s denial of
appellant’s motion to dismiss at the stand-your-ground hearing and the
denial of his motion for judgment of acquittal at trial. At the pre-trial
hearing, the court resolved conflicts in the evidence adversely to appellant,
finding that “there was not any credible testimony or evidence presented
to support [appellant’s] version of the shooting.” At trial, a “motion for
judgment of acquittal based upon self defense should not be granted
unless ‘the evidence is such that no view which the jury may lawfully take
of it favorable to the opposite party can be sustained under the law.’”

                                     -3-
Morgan v. State, 127 So. 3d 708, 717 (Fla. 5th DCA 2013) (quoting Lynch
v. State, 293 So. 2d 44, 45 (Fla. 1974)). Given the conflicts in the
testimony, this was clearly a case for resolution by the jury.

   The trial court fundamentally erred by omitting a key word from the
        standard jury instruction on justifiable use of deadly force

   The standard jury instruction for the justifiable use of deadly force
provides, in pertinent part:

      In deciding whether defendant was justified in the use of
      deadly force, you must judge [him] by the circumstances by
      which [he] was surrounded at the time the force was used.
      The danger facing the defendant need not have been actual;
      however, to justify the use of deadly force, the appearance of
      danger must have been so real that a reasonably cautious and
      prudent person under the same circumstances would have
      believed that the danger could be avoided only through the
      use of that force. Based upon appearances, the defendant
      must have actually believed that the danger was real.

Fla. Std. Jury Instr. (Crim.) 3.6(f) (emphasis added).

   According to the transcript in the record, the trial court erroneously
instructed the jury that “[t]he danger need have been actual” instead of
“the danger facing the defendant need not have been actual.” Neither the
prosecutor nor defense counsel objected to the instruction as given.

   Because there was no objection, we must determine whether such error
constitutes fundamental error. See Miller v. State, 828 So. 2d 445, 447
(Fla. 4th DCA 2002). Appellant correctly points out that the erroneous
instruction impacted his sole defense of “self-defense justifiable use of
force.” “[W]here . . . a trial judge gives an instruction that is an incorrect
statement of the law and necessarily misleading to the jury, and the effect
of that instruction is to negate the defendant’s only defense, it is
fundamental error and highly prejudicial to the defendant.” Williams v.
State, 982 So. 2d 1190, 1194 (Fla. 4th DCA 2008) (quoting Carter v. State,
469 So. 2d 194, 196 (Fla. 2d DCA 1985)).

   The state argues that the error was not fundamental because the
parties did not rely on the erroneous instruction during closing argument.
We rejected this argument in Garrido v. State, 97 So. 3d 291, 295 (Fla. 4th
DCA 2012), where we wrote that “[a]s the jury must follow the law as set
forth by the trial court, the fact that the prosecutor and defense counsel

                                     -4-
correctly state the law during closing does not cure the trial court’s reading
of an erroneous instruction.”

    Where fundamental error has occurred, we must reverse and remand
for a new trial. If a charge central to a defendant’s defense is in error, that
error is a fundamental one.

   We have spent much time with the transcript and approached this
issue with caution because it appears as if there are multiple places in the
transcript where words have been omitted. One of those words is the “not”
that is not in the transcript of the judge’s recitation of standard charge
3.6(f). Neither attorney noticed the omission at trial.

   It is possible that the omitted word might have been a problem in
transcription, rather than an omission by the experienced trial judge.

    The transcript reveals three times during the charge conference that
the judge referred to written instructions in a notebook which the jury
would have during deliberations.           Both attorneys approved the
“instructions in the written form.” We have scoured the record and do not
find that the written instructions given to the jury were marked as an
exhibit and included in the record on appeal. If the written instructions
were part of the record, and written standard charge 3.6(f) correctly stated
the law, we would hold that no fundamental error occurred. It is
inconceivable that, without a memory savant, the jury would have recalled
a charge where a three letter word was omitted rather than relying upon a
hard copy of the charge present in the jury room, where the correct law is
set out in black and white. The situation here underlines the importance
of including in the record the written collection of instructions on the law
that the jury takes into deliberations.

    The state’s “expert” witness improperly bolstered the testimony of
                     witnesses favorable to the state

    Both the state and appellant called witnesses they described as
“experts.” During the stand-your-ground hearing, the defense expert
opined that appellant’s use of deadly force was justified; the state’s witness
testified that appellant’s use of force was not objectively reasonable under
the circumstances. At trial, in a roundabout way, the experts opined about
the reasonableness of appellant’s use of deadly force. Neither side objected
to the other calling an expert, but they agreed that the experts would not
refer to the credibility of witnesses.



                                     -5-
   To ensure that this opinion is not read as tacit approval of this use of
expert testimony, we first address the propriety of such testimony in a case
such as this. Had there been an objection to either expert, it should have
been sustained. The case turned entirely on how the jury evaluated the
testimony of various civilian eyewitnesses to the shooting. The experts
reviewed witness statements and other evidence in the case, personally
interviewed some witnesses, and essentially opined on the issue of whether
the use of deadly force was reasonable, and therefore justifiable under the
law.

   To be admissible, expert testimony must “assist the trier of fact in
understanding the evidence or in determining a fact in issue . . . .” §
90.702, Fla. Stat (2017). We have also described this quality of expert
testimony as being “helpful to the trier of fact.” Anderson v. State, 786 So.
2d 6, 8 (Fla. 4th DCA 2000) (quoting Holiday Inns, Inc. v. Shelburne, 576
So. 2d 322, 335 (Fla. 4th DCA 1991)). Whether self-defense applies in a
given case is a classic question that jurors are well equipped to handle. As
we wrote in Mitchell v. State:

      In order to be helpful to the trier of fact, expert testimony must
      concern a subject which is beyond the common
      understanding of the average person. Expert testimony
      should be excluded where the facts testified to are of such a
      nature as not to require any special knowledge or experience
      in order for the jury to form conclusions from the facts.

965 So. 2d 246, 251 (Fla. 4th DCA 2007) (internal citation omitted). Here,
the experts’ opinions on the viability of self-defense necessarily involved
their estimation of the credibility of the competing witnesses, a
determination squarely within the wheelhouse of the jury as the finder of
fact.

   Because the experts testified without objection, we examine appellant’s
complaints about the testimony of the state’s expert, to which there was
an objection. We agree that the state’s expert was improperly permitted to
comment directly and indirectly on the credibility of witnesses.

    The state’s expert, a law enforcement officer, described the technique
for forming an opinion on the self-defense issue:

      [W]e have to evaluate what the witnesses say. And we evaluate
      the facts of the case at this point now because . . . we have
      [Appellant]’s perspective, but we also have multiple witnesses’
      perspective and we have to kind of filter through all of this.

                                     -6-
      So how do I evaluate that? How do I evaluate that when we’re
      evaluating use of force incident? We start to look at implicit
      biases and things like that or biases within people and we look
      at independent witnesses and we look at what are the facts.

      ***

      [I]t’s all a part of the totality of the circumstances when we
      look and we evaluate what the witnesses are telling us. So we
      have basically like I said, one person that is more leaning
      towards the decedent, more connection to the decedent, one
      that has more connections to the Defendant and then we have
      one that has no connection really to anyone.

The state expert demeaned appellant’s credibility concerning whether the
victim may have been armed by pointing out “no one says that except for
[Appellant].” He bolstered the credibility of a witness favorable to the state
by describing her as a “totally independent witness that has no connection
to either party. . . . One witness is independent in my opinion . . . it just
adds more credence to somebody that does not have a connection.” This
witness’s independence made the location of the victim’s hands at a crucial
time in the incident “apparent” to the expert. Concerning a witness who
did not testify at trial, the expert described what her testimony would have
been and then concluded that it was “consistent with everyone except for
the Defendant.” In rendering an opinion that the use of deadly force was
not reasonable, the state expert said “we really have to look at what the
witnesses say, every single one of them, except for our Defendant, has the
hands to the front.”

   The Florida Supreme Court has squarely condemned the type of
credibility bolstering that occurred here. In Calloway v. State, the Court
wrote:

      [I]t is erroneous to permit a witness to comment on the
      credibility of another witness because the jury alone
      determines the credibility of witnesses. Testimony from a
      police officer about the credibility of another witness may be
      particularly harmful because a jury may grant greater
      credibility to the officer.

210 So. 3d 1160, 1189 (Fla. 2017) (internal citations omitted). To the same
effect, Tumblin v. State, focused on the abundant case law holding that a
law enforcement officer’s testimony about another witness’s credibility is
especially harmful:

                                     -7-
      “[A]llowing one witness to offer a personal view on the
      credibility of a fellow witness is an invasion of the province of
      the jury to determine a witness’s credibility.” Seibert v. State,
      923 So. 2d 460, 472 (Fla.2006) (quoting Knowles v. State, 632
      So. 2d 62, 65-66 (Fla.1993)). “It is clearly error for one witness
      to testify as to the credibility of another witness.” Acosta v.
      State, 798 So. 2d 809, 810 (Fla. 4th DCA 2001). Moreover,
      “[i]t is especially harmful for a police witness to give his
      opinion of a witnesses’ [sic] credibility because of the great
      weight afforded an officer's testimony.” Seibert, 923 So. 2d at
      472 (quoting Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th
      DCA 1999)); see also Acosta, 798 So. 2d at 810. “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. . . .” Bowles v. State,
      381 So. 2d 326, 328 (Fla. 5th DCA 1980); see also Lee v. State,
      873 So. 2d 582, 583 (Fla. 3d DCA 2004) (holding police
      officer’s comment that witness was credible and positive in her
      pretrial lineup identification was error requiring new trial);
      Olsen v. State, 778 So. 2d 422, 423 (Fla. 5th DCA 2001) (“[I]t
      is considered especially harmful for a police officer to give his
      or her opinion of a witness’ credibility because of the great
      weight afforded an officer’s testimony.”); cf. Perez v. State, 595
      So. 2d 1096, 1097 (Fla. 3d DCA 1992) (stating that improper
      admission of police officer’s testimony to bolster the credibility
      of a witness cannot be deemed harmless).

29 So. 3d 1093, 1101-02 (Fla. 2010).
   In a case where so much turned on credibility, the Calloway/Tumblin
error here cannot be said to be harmless.

The trial court properly denied appellant’s motion for judgment of acquittal
                    of the second degree murder charge

   Finally, we reject appellant’s argument that the trial court erred in
denying his motion for judgment of acquittal because the evidence was
insufficient to prove the ill will required for a conviction of second degree
murder.

   The crime of second degree murder is defined as “[t]he unlawful killing
of a human being, when perpetrated by any act imminently dangerous to
another and evincing a depraved mind regardless of human life, although
without any premeditated design to effect the death of any particular

                                     -8-
individual, is murder in the second degree . . . .” § 782.04(2), Fla. Stat.
(2016). “In the context of second-degree murder, an act . . . evinces a
‘depraved mind’ if it is an act or series of acts that: (1) a person of ordinary
judgment would know is reasonably certain to kill or do serious bodily
injury to another; and (2) is done from ill will, hatred, spite or an evil intent;
and (3) is of such a nature that the act itself indicates an indifference to
human life.” Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th DCA 2011).
“However, ‘extremely reckless behavior itself is insufficient from which to
infer any malice. Moreover . . . an impulsive overreaction to an attack or
injury is itself insufficient to prove ill will, hatred, spite, or evil intent.’” Id.
(quoting Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003)).

    Viewed in the light most favorable to the state, the evidence was
sufficient to support a finding that appellant acted with a depraved mind
when he shot the victim. Appellant overheard yelling and commotion while
on the phone with his girlfriend. He rushed home, sped into the apartment
complex, left his car running in the middle of the parking lot, and jumped
out to confront the victim, believing that he saw the victim strike his
girlfriend when he pulled in. He exchanged angry words with the victim
and quickly engaged in a physical “tussle” with him until they were
separated. There was time to cool off when the victim retreated to his
apartment and appellant went to his car to get his firearm. Appellant’s
girlfriend tried to keep him from going after the victim, begging him to
think of their daughter.       When the victim left the apartment, he
approached appellant with his hands in front of him and without any
weapon. Appellant waited until the victim was within close range before
firing all 18 rounds of his gun. Seven of the 18 bullets struck the victim.
Five of those seven wounds were located on the victim’s back, buttocks,
and back of his arm, which indicated that appellant continued to shoot
the victim even after he turned away.

   We reverse the conviction for second degree murder with a firearm and
remand for a new trial.

CONNER and FORST, JJ., concur.

                               *         *          *

   Not final until disposition of timely filed motion for rehearing.




                                        -9-
