SHAWN THOMAS GAINEY v. STATE OF FLORIDA (2023)

Shawn Thomas Gainey appeals the judgment below finding him guilty of attempted second-degree murder. Gainey shot the victim in the face during a dispute on the side of a highway. The shooting was seen by several witnesses and captured on a police car dash camera.

At trial, a law enforcement officer testified about Gainey's claim of self-defense. The officer stated that the shooting was not justified based on his review of the case. Gainey argues this was error.

This testimony was indeed improper opinion testimony, but it was not met with a contemporaneous objection. It is, therefore, reviewed for fundamental error. Baker v. State, 4 So. 3d 758, 760 (Fla. 1st DCA 2009). Fundamental error “goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” Id.

We must determine whether this unpreserved error allowing an officer to comment on a defendant's guilt constitutes fundamental error. We addressed this question in Nolley v. State, 237 So. 3d 469 (Fla. 1st DCA 2018). We focused on two questions. First, whether the State made the officer's improper testimony the focus of the trial, and second, whether the State presented ample evidence, without the officer's improper testimony, of the defendant's guilt. Id. at 476.

During its opening statement, the State referred only once to the officer's conclusion that Gainey was not justified in shooting the victim. During the presentation of evidence, the officer made only one comment about the defendant's guilt. That testimony never came up again throughout the rest of the proceedings. Thus, it never became the focus of the trial. The State also presented ample evidence of Gainey's guilt. Gainey admitted shooting the victim, claiming the victim had a firearm. But no firearm was ever located on or near the victim, and several witnesses testified that the victim was not armed. The jury also viewed the dash camera video which shows the victim without a firearm. As a result, the jury could have independently found that Gainey was not justified in using deadly force. We, therefore, do not find the admission of this testimony to be fundamental error and affirm the judgment below.

AFFIRMED.

PER CURIAM.

LEWIS, M.K. THOMAS, and LONG, JJ., concur.