NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ROGER EARNEST HEARE, )
)
Appellant, )
)
v. ) Case No. 2D15-5362
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed November 18, 2016.
Appeal from the Circuit Court for Pinellas
County; Thane Covert, Judge.
Howard L. Dimmig, II, Public Defender,
and Siobhan Helene Shea, Special
Assistant Public Defender, Bartow, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa,
for Appellee.
SILBERMAN, Judge.
Roger Earnest Heare seeks review of his judgment and sentence for
felony battery. The charge arose after Heare went to his former home to reclaim his
personal property without permission and encountered his ex-wife's adult son. Heare
argues that the trial court erred in denying his request for a jury instruction on self-
defense and in overruling two defense objections to police testimony that amounted to
opinions on Heare's guilt. We conclude that all three issues have merit and reverse and
remand for a new trial.
In 2009, Heare and his wife separated, and she moved out of the marital
home. Their divorce was final in May 2015, and the marital home was awarded to the
wife although she no longer lived in the home. Heare was incarcerated at some point
during the dissolution proceedings, and all of his personal belongings remained in the
marital home. The final judgment ordered Heare to stay away from the marital home
but permitted him to return to retrieve his belongings if he contacted his ex-wife's
attorney first.
Shortly after entry of the final judgment of dissolution, Heare's ex-wife
allowed her adult son, Pierre Cline, to move into the former marital home. Cline
changed the locks and had a security system installed. Cline was returning to the home
in the early evening hours of June 23, 2015, when he saw Heare standing in the alley
behind the house. Cline parked his vehicle but stayed outside and called his mother.
He then received a call from his alarm company indicating that there had been an
unauthorized entry. Cline directed the company to call the police.
The police arrived and spoke with Cline and Heare's ex-wife, who had just
arrived on the scene. Heare's ex-wife said that she was the homeowner and Heare was
not permitted to enter because he had not contacted her attorney first. She showed the
police her copy of the final judgment. Cline, who had served in the military, also told the
police that he had firearms in the house that Heare could use if he found them.
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Cline's firearms were never an issue, but the police proceeded with
caution. As Officer Rexroad began walking up the driveway Heare started to walk out
the front door. Heare saw Officer Rexroad approaching and went back inside. Heare
stood behind the screen door, held a piece of paper against the screen, and shouted
that he had a right to be in the house. When Officer Rexroad continued to approach,
Heare slammed the front door shut but did not make any threats.
In the meantime, Officer Smotrich was attempting to determine whether
the copy of the final judgment provided by Heare's ex-wife was valid. He searched the
county's public records website and called his commander. His commander then
attempted to reach the state attorney and Heare's ex-wife's attorney. Ultimately, Officer
Smotrich was not able to verify the legality of the document. His supervisors decided
not to force entry into the home because they could not confirm that Heare did not have
a legal right to be there.
At some point in this process, Cline told the police he was going to enter
the home. Cline had served in the army and was a tall, large, fit man. The officers
advised him not to go into the house, but he was insistent. A supervisor who was
communicating with the officers by phone decided that the police should accompany
Cline into the house if he was determined to enter. Sergeant Ku was called to the
scene to assist with the entry. Officer Rexroad testified that the plan was made
because "[t]here was a very strong likelihood that there was gonna be an incident when
[Cline] went back into his own home." He was right.
Cline entered the lock code on the key pad by the front door, but the lock
would not disengage. Cline then used a key and was able to turn the lock, but he was
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not able to open the door because Heare was pushing against it from the other side.
Cline added some force and pushed the door with his shoulder while turning the lock.
After a couple of tries, Cline forced the door open, pushing Heare ten to twelve feet into
the home. Cline entered the home followed by five police officers. As Cline
approached, Heare rushed forward and took a swing at Cline and hit his forearm. Cline
easily subdued Heare by forcing him to the ground and holding him there.
Heare was charged with felony battery, burglary, and criminal mischief
based on his actions that day. A jury found him guilty of felony battery as charged,
guilty of the lesser offense of trespass, and not guilty of criminal mischief. The court
imposed a sentence of five years in prison for the battery. Heare raises three issues on
appeal.
First, Heare argues that the trial court erred in denying his request for a
jury instruction on self-defense. This court reviews a decision to withhold a requested
jury instruction for an abuse of discretion. Williams v. State, 34 So. 3d 768, 770 (Fla. 2d
DCA 2010). However, the trial court's discretion is limited by the principle that "a
criminal defendant is entitled to have the jury instructed on his or her theory of defense
if there is any evidence to support this theory, and so long as the theory is recognized
as valid under the laws of the state." Id. at 770-71 (quoting Worley v. State, 848 So. 2d
491, 492 (Fla. 5th DCA 2003)). The question on review "is whether there was any
evidence, however slight, to support" the requested instruction. Id. at 771.
If there is evidence that supports a claim that the victim was the
aggressor, the defendant is entitled to a jury instruction on self-defense. Smith v. State,
98 So. 3d 632, 639 (Fla. 4th DCA 2012); see, e.g., Stewart v. State, 672 So. 2d 865,
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867 (Fla. 2d DCA 1996) (holding that the trial court abused its discretion in refusing to
give a self-defense instruction because there was evidence that the victim approached
the defendant in a threatening manner); Cunningham v. State, 159 So. 3d 275, 277
(Fla. 4th DCA 2015) (holding that a self-defense instruction should have been given
"[b]ecause there was conflicting evidence as to whether [the victim] behaved in a
threatening manner"); Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006)
(holding that it was reversible error to refuse to give a self-defense instruction
"[b]ecause of evidence that the defendant was first struck by [the victim]").
In this case, the victim himself provided testimony establishing that he was
the aggressor. According to this testimony, Heare was holed up in his ex-wife's home
and refusing to leave despite the fact that the police had been called to the scene.
Cline, who was a tall, large, and fit ex-military man, gained entry to the home by using
his shoulder to force the door open. In so doing, Cline pushed Heare back into the
home about ten to twelve feet. It was clear that Cline wanted Heare to leave the home,
and based on Cline's forcible entry a jury could conclude that it was reasonable for
Heare to believe Cline intended to use force to accomplish this goal. Even the police
acknowledged that there "was a very strong likelihood" that there was going to be an
incident when Cline gained entry.
The facts of this case are analogous to those in Gregory. 937 So. 2d at
181. In Gregory, the victim was the defendant's girlfriend. She was 5' 3" tall, weighed
115 pounds, and was much weaker than the defendant. There was evidence that, after
the pair had sex, the defendant left the victim's home so he would not wake the victim in
the morning when he went to work. Seconds later, the defendant returned and knocked
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on the door. The victim opened the door about halfway, and the defendant attempted to
grab some bottles of wine that he had left on the floor next to the door. The victim did
not want the defendant to have the wine, "[s]o she started pushing him out the door as
hard as she could push." Id. The pair got into a shoving match, and the defendant
bashed the victim's head into a picture, the wall, and the floor.
The Fourth District concluded that this evidence was sufficient to merit a
jury instruction on self-defense. Id. at 182. The court began by noting that criminal
defendants are entitled to have the jury instructed on their "defense where there is any
evidence to support it, no matter how weak or flimsy." Id. The court also remarked that
the trial court was precluded from weighing the evidence because "[i]t is not the
quantum or the quality of the proof as to self defense that determines the requirement
for giving the charge." Id. (quoting Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA
1972)). The court concluded that the trial court erred in refusing to give the defense
instruction because there was evidence that the defendant was first struck by the victim.
In this case, as in Gregory, there was evidence that the defendant was
first struck by the victim. See id. at 181. Here, Cline forced the front door open,
pushing Heare ten to twelve feet into the home. And Cline posed a more serious threat
than the victim in Gregory because of his large size and athleticism. While the trial
court may have believed that the evidence of self-defense was weak, under all of the
circumstances the court erred in refusing to give the requested jury instruction on self-
defense.
In Heare's second argument on appeal, he asserts that the trial court erred
in overruling his objection to Sergeant Ku's testimony that Heare had "battered" the
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victim. Sergeant Ku repeatedly described Heare's actions as a "battery" when the
sergeant was describing what happened when Cline entered the home. The State also
reiterated this testimony.
It is well-settled that State witnesses may not offer opinions regarding the
innocence or guilt of the defendant. See Jackson v. State, 107 So. 3d 328, 339 (Fla.
2012); Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000); Glendening v. State, 536
So. 2d 212, 221 (Fla. 1988). This type of testimony is generally excluded "on the
grounds that its probative value is substantially outweighed by unfair prejudice to the
defendant." Battle v. State, 19 So. 3d 1045, 1047 (Fla. 4th DCA 2009) (quoting
Martinez, 761 So. 2d at 1079). And the danger of prejudice is increased when it is the
investigating officer who offers such testimony. Id. at 1047-48.
Sergeant Ku's repeated description of Heare's actions toward the victim as
"battery" essentially told the jury that he believed Heare was guilty of battery. And the
prejudicial value of this testimony was increased because it was a police officer who
offered the testimony. Thus, it was error for the court to permit the testimony.
In his third argument on appeal, Heare asserts that the trial court erred in
overruling his objection to another statement by Sergeant Ku. During direct
examination of Sergeant Ku, the State asked the sergeant, "So if, let's say, Mr. Cline
had lunged at the defendant or hit the defendant, would you have taken some action
against Mr. Cline?" Over objection, Sergeant Ku replied, "Yes, ma'am. He would've
been arrested for battery as well." The State asked whether that had happened, and
the sergeant answered it had not.
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As with Sergeant Ku's testimony that Heare "battered" Cline, this type of
statement improperly told the jury that the sergeant believed Heare was guilty or that he
arrested the right person. See Bartlett v. State, 993 So. 2d 157, 166 (Fla. 1st DCA
2008) (holding that it was error to allow the detective to testify that he had ruled out the
possibility that the defendant had acted in self-defense).
Finally, we are not persuaded by the State's argument that any error in
this case was harmless. Self-defense was Heare's sole defense to the battery charge,
and Heare had to abandon that defense when the court refused to instruct the jury on it.
Not only was the jury not given the option of finding that Heare acted in self-defense,
they were told in two different ways that the investigating officer believed Heare was
guilty of the battery. The State has not proven that there is no reasonable possibility
that these errors did not contribute to the verdict. See State v. DiGuilio, 491 So. 2d
1129, 1139 (Fla. 1986).
Reversed and remanded.
CASANUEVA and BADALAMENTI, JJ., Concur.
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