Keyes v. StateKeyes v. State
Rоbert C. Keyes was tried by jury and convicted of battery. On appeal, Keyes challenges a variety of alleged improper remarks by the prosecutor during closing arguments. We find merit in the claim that the State improperly told the jury that Keyes’ sеlf-defense theory was a legal admission to the charged battery. We reverse and remand for a new trial.
Broward County Shеriff‘s Deputy Andrew Cardarelli testified that he was dispatched to 46th Avenue in connection with a call concerning a black man in a white tee-shirt. When Cardarelli arrived, he saw Keyes sitting in the driver‘s seat of a car and another male and two femаles near the fender of the car. Cardarelli, who was in uniform and driving a marked patrol car, instructed those near the сar to step away and have a seat on the side of the road. Keyes, a black male in a white tee-shirt, was ordеred to step out of the car.
Cardarelli testified that Keyes responded that he had nothing to do with what was going on and bеgan cursing. Cardarelli
Prior to closing arguments, defense counsel requested that the jury be given a self-defense instruction, and the trial court agreed. The self-defense issue then became the focus оf closing arguments. Defense counsel went first, arguing that Cardarelli had reached into Keyes’ car without provocatiоn, thrown his car into park, and grabbed the keys; it was unreasonable, defense counsel suggested, to believe that he had dоne so without touching Keyes. Defense counsel continued, stating
We have—well, we‘ve never said that Robert Keyes cоmmitted a battery by touching anybody and we don‘t admit that he did, because if there was any contact, like I said a few minutes ago, it was inadvertent and unintentionally. In order to commit a battery, it has to be intentional. But you will be getting a self-defense instruction in this сase regardless, because Robert Keyes may have covered up his face while the officer was trying to get at him. Imagine he is covering up his face, the officer reached up and says he put his hands on me for a battery.
When it was the prosecutor‘s turn, he responded by making statements to the effect that Keyes’ request for a self-defense instruction wаs an admission to the crime. For example, the prosecutor stated “[y]ou know how Mr. Keyes gets a selfdefense instruction, by admitting that the crime took place.” And then later, he continued along those same lines
The only way they can argue self-defense, if the crime was completed but he had a reason to do it. The only way he could come here аnd get that instruction and he agrees that the crime happened is that everything Cardarelli said is true, that he touched him. That‘s thе only way.
. . . .
This case is not about self-defense at all, because they have to admit it. If he admits it, check guilty.
Keyes contends that these remarks were improper and served to relieve the State of its burden of establishing his guilt beyond a reasonаble doubt. We agree.
A defendant may argue inconsistent theories to the jury “so long as the proof of one does nоt necessarily disprove the other.” Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998). As a general rule, a defendant‘s contention that his injury of another was an accident bars an instruction on self defense or defense of another. See Williams v. State, 588 So.2d 44, 45 (Fla. 1st DCA. 1991). Claims of self defense and defense of another involve “an admission and avoidance,” which are usually inconsistent with a claim that the injuries resulted from an accident. Id. An exception to this general rule exists, however, where “there is evidence indicating that the accidental infliction of an injury and the defense of self defense or defense of another are so intertwined that the jury could reasonably find that the accident
Here, Keyes’ attorney argued that it was Cardarelli who initiated contact with his client and that any contаct Keyes made with Cardarelli was unintentional and, thus, not battery. Additionally, defense counsel argued that any physical contact that Keyes had with Cardarelli was “to get him off of himself” and in self defense. Since on the facts presented, Keyes was permitted to argue that the jury could properly find that the touching was accidental and not battery, or in the alternative, that it was in self defense and not battery, the State‘s argument that Keyes’ request for the self-defense instruction was equivalеnt to an admission to the battery must fail. When making closing argument to the jury, “[c]ounsel may not contravene the law and the jury instructiоns.” Cave v. State, 476 So.2d 180, 186 (Fla.1985).
We agree with the State‘s contention that defense counsel did not properly preserve the legal issue raisеd on appeal. Indeed, defense counsel‘s assertion that “I will object to that” was insufficient to preserve any sрecific ground for appeal. See, e.g., Byers v. State, 776 So.2d 1012, 1013 (Fla. 5th DCA 2001)(“In order to preserve a trial court error the defendant must make a timely objеction and state its specific grounds.“). Nevertheless, comments which improperly shift the burden of proof to the defendаnt present a deprivation of the fundamental right to a fair trial serious enough to require reversal even in the absence of objection or preservation. See, e.g., Sanders v. State, 779 So.2d 522 (Fla. 2d DCA 2000); Quaggin v. State, 752 So.2d 19 (Fla. 5th DCA 2000). Accordingly, we reverse Keyes’ conviction and remand the cause for a new trial.
REVERSED and REMANDED.
SHAHOOD and HAZOURI, JJ., concur.