STEVEN CARO

v.

STATE OF FLORIDA

EDWARDS, J.

Steven Caro was charged with attempted second-degree murder with a firearm, found guilty following a jury trial, and sentenced to thirty years in prison with a twenty-five year minimum mandatory. As part of the State’s case, it presented evidence of an unscientific experiment conducted by a police detective that was intended to prove that the victim was shot at close range, which would have been consistent with Appellant’s proximity to the victim at the time of the shooting.

However, the State failed to meet its burden of showing that the conditions of the demonstration were substantially similar to the actual event to make the demonstration admissible.

Furthermore, the detective was improperly permitted to state his opinion that of the test shots he fired, the one fired from point-blank range most closely resembled the bullet hole on the victim’s shirt. While there was other evidence that was consistent with Appellant’s possible guilt, admission of the foregoing evidence cannot be considered harmless.

We reverse and remand for a new trial.

The Shooting On the evening of May 12, 2017, Appellant was at a bar in Ocala. The bouncers checked everybody for weapons as they entered the bar, and they reported finding none.

Appellant got into a verbal altercation with the victim, Jarel Rhem, inside the bar. When the bar closed, Appellant and Rhem got face-to-face outside. Appellant whispered something to Rhem, following which a gunshot rang out and Rhem was struck by a bullet in the stomach. Appellant was seen running away but was not caught by a witness who chased after him. Nobody saw who shot Rhem, nobody saw a gun, and no gun associated with the shooting was found. Although the police found a .380 empty shell casing in the parking lot underneath a car, there was no other evidence or testimony about the caliber of weapon used to shoot Rhem.

Thus, there was no evidence that the empty .380 caliber shell casing was related to Rhem’s shooting. The only other physical evidence was a hole in the t-shirt Rhem was wearing at the time he was shot. 2 Police contacted Appellant about the shooting after they identified his car in a photograph provided by a witness who was outside the bar. Initially, Appellant denied being at the bar that night but ultimately admitted to having been there. He never admitted to shooting Rhem nor did he admit to possessing a gun. Appellant was arrested by Detective Hurst and charged with attempting to murder Rhem.

The Objected-to Experiment Given the eyewitness accounts of Appellant’s face-to-face encounter with Rhem outside the bar, if Appellant was the shooter, the shot would have been fired at close range, essentially point-blank range. If the shot came from some greater distance, then it would be unlikely that Appellant was the shooter. Detective Hurst conducted an experiment or demonstration to see if he could determine the distance from which Rhem had been shot. He fired shots into a t-shirt he felt was similar to Rhem’s from different distances using a .380 caliber pistol. Hurst noted that the closer the firing distance, the larger the bullet hole was in the test t-shirt. After shooting test shots from different distances, Hurst concluded that the bullet hole in his test that best matched the hole in Rhem’s shirt had been fired from point-blank range.

Appellant moved in limine to exclude the demonstration, all testimony related to the demonstration, and any conclusion Detective Hurst may have drawn from his experiment. The trial court initially denied the motion, saying it would like to hear some testimony before making a final decision. After the trial had been underway, the State proffered Detective Hurst’s testimony outside the presence of the jury and the parties argued over its admissibility. Appellant objected to admission of the demonstration because there was no proof that Rhem had been shot with a .380 caliber weapon as 3 opposed to another caliber, nor was there any proof of the barrel length or other qualities of the actual gun or bullet used to shoot Rhem.

Appellant noted that there was no proof of similarity between the test t-shirt and Rhem’s shirt, nor was Detective Hurst being offered as an expert witness on any topic connected with the experiment. The State conceded that it was not calling Hurst as an expert witness; rather, it was offering Hurst’s demonstration for whatever weight the jury might accord it regarding the correlation between bullet hole size and distance from which a shot was fired. The State intended to offer Hurst’s description of how he conducted his demonstration and to offer the statement that the hole in the test shirt that was fired from point-blank range with a .380 caliber pistol looks most like the hole in Rhem’s shirt. The only limitation placed on Hurst’s testimony in this regard was he would not be permitted to say that the test shot and the shot that struck Rhem were the exact same shots, fired from point-blank range.

The Testimony Detective Hurst then testified before the jury and explained that the hole in Rhem’s t-shirt was significantly larger than the diameter of a .380 bullet. Hurst described how he took one of his own old t-shirts and shot it with a .380 pistol from various distances. He then identified one particular bullet hole in the test shirt as having been made by shooting from point-blank distance, which he explained he fired from a measured one-inch distance from the shirt. He explained to the jury that the test bullet holes were increasingly larger in size as the distance from which the shots were fired decreased. He then testified that he compared the test bullet holes to the hole in Rhem’s shirt and concluded that the test hole from the one-inch shot was most comparable to the one in Rhem’s shirt. 4 The State then presented the testimony of Corey Nerzig, a crime laboratory analyst with the Florida Department of Law Enforcement, who had examined and tested the tshirt Rhem was wearing while shot. He testified on direct that there was lead residue but no gunpowder residue around the hole, which led him to conclude that the gun had been fired from point-blank range.

However, on cross-examination, Nerzig conceded that the presence of lead on Rhem’s t-shirt could be due to something other than a point-blank shot and that the tearing he noted in Rhem’s shirt could have been caused by a knife, rather than a bullet. Several witnesses from the bar who had observed one or both confrontations between Appellant and Rhem were shown photo line-up arrays and either initially or repeatedly failed to identify Appellant as the man with whom Rhem argued that night at the bar. Rhem himself also initially identified someone other than Appellant as the shooter. Legal Analysis “The general rule [regarding the admission of an experiment at trial] is [that] ‘evidence of an experiment . . . is not admissible, where the conditions attending the alleged occurrence and the experiment are not shown to be similar.’” Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488, 492 (Fla. 3d DCA 1986) (quoting Hisler v. State, 42 So. 692, 695 (Fla. 1906)). “The similarity of circumstances and conditions go to the admissibility of the evidence, and must be determined by the court.” Hisler , 42 So. at 695. “The party offering the evidence of the experiment has the burden to lay a proper foundation for its admission by showing a similarity of the circumstances and conditions.” Rindfleisch, 498 So. 2d at 492. “If enough of the obviously important factors are duplicated in the experiment, and if the failure to control other possibly relevant variables 5 is justified, the court may conclude that the experiment is sufficiently enlightening that it should come into evidence.” Id. at 493 (citing Vitt v. Ryder Truck Rentals, 340 So. 2d 962, 965 (Fla. 3d DCA 1976)); see also Shennett v. State, 937 So. 2d 287, 292 (Fla. 4th DCA 2006) (holding that demonstration was inadmissible because it “was not sufficiently similar to the crime to be of evidentiary value”).

Later cases have narrowed Hisler’s general rule in certain situations. See Johnson

v. State, 442 So. 2d 193, 196 (Fla. 1983) (rejecting an argument that an experiment where murder weapon was fired at white paper to prove a shot was taken at close range was not “sufficiently similar” to human flesh and finding that “the issue is one of the weight to be given to the evidence rather than its relevance or materiality”); McFarland & Son, Inc. v. Basel, 727 So. 2d 266, 269 (Fla. 5th DCA 1999) (holding differences between car accident simulations and actual event went towards weight, not admissibility).

However, Florida courts still generally apply the rule from Hisler. See Rindfleisch, 498 So. 2d at 492 (noting that while the “rule of substantial similarity” between test conditions and actual conditions has been eroded after Johnson with regard to certain types of evidence, the rule from Hisler is still the “general rule” in Florida) (citing Johnson, 442 So. 2d at 195– 96); see also Dempsey v. Shell Oil Co., 589 So. 2d 373, 380 (Fla. 4th DCA 1991) (“In sum, the rule of ‘substantial similarity’ requiring the important factors in an experiment to be similar to those involved in the subject accident, is still a part of Florida law”).

The entire premise of Detective Hurst’s experiment was that he could determine the distance from which a shot was fired by the size of the hole in the shirt, i.e., the closer the distance the larger the hole. However, when neither the caliber of the gun nor the size of the bullet fired at Rhem were known, the jury could not reliably draw a conclusion 6 from the detective’s experiment about the shooter’s distance from Rhem. Furthermore, the State’s crime analyst testified that the hole in Rhem’s shirt may have been made by a knife, not a bullet of any kind. The substantial similarity requirement was not met with regard to the bullet and gun variables between the actual event and the experiment.

Furthermore, as Appellant points out, the State failed to offer proof as to the similarity of Rhem’s t-shirt and the test shirt.

Bullet Hole Comparison Testimony The State asserted that it was not offering Detective Hurst as any kind of expert, yet the State asked him to offer his opinion of which of the test-fired bullet holes in the test t-shirt most closely resembled the hole in Rhem’s t-shirt. This was an end-run at offering the detective’s opinion of the distance from which Rhem was shot. Witnesses may testify to their own observations of an event or an experiment, but they usually may not make comparisons between demonstrative aids and actual evidence. See, e.g., Johnson, 442 So. 2d at 195–96 (suggesting that lay witness’s comparison testimony between actual gunshot wounds and marks on experimental paper target would have been improper).

Rather, comparisons and opinion testimony are generally only permitted if done by expert witnesses. See Floyd v. State, 569 So. 2d 1225, 1231–32 (Fla. 1990) (“Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury.”).

Appellant’s objection to this comparison testimony should have been sustained.

Harmless Error Analysis Because we find that the trial court erred in admitting the experiment and comparison opinion testimony, we must next consider whether either or both errors 7 require reversal.

The State argues that any error committed regarding the demonstrative aid was harmless error which does not justify reversal. In order to show harmless error, it is the burden of the State to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Importantly, the harmless error test is not an “overwhelming evidence” test but instead requires a court to reverse if there is any reasonable possibility that the error contributed to the jury’s verdict. See Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010).

Although there was admissible evidence which placed Appellant at the scene of the shooting, having sequential arguments with the victim, there was no direct evidence that connected Appellant to the actual shooting. We note that the State’s attorney repeatedly referred to Detective Hurst’s testimony during closing argument, suggesting that this evidence was a significant factor and perhaps a feature of the State’s case against Appellant. 1 We find that there certainly is the possibility that the inadmissible shooting demonstration and testimony related to it contributed to the guilty verdict; thus, a new trial is required.

REVERSED AND REMANDED FOR A NEW TRIAL.

1 We also note that “error in admitting improper testimony may be exacerbated where the testimony comes from a police officer.” Proctor v. State, 97 So. 3d 313, 315 (Fla. 5th DCA 2012) (quoting Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000)). This is true because “[t]here is the danger that jurors will defer to what they perceive to be an officer's special training and access to background information not presented during trial.” Id. (citing Martinez, 761 So. 2d at 1080). This concern is no doubt relevant because the detective testified about a firearms test—a topic about which the average juror would expect a police officer to have specialized knowledge. 8 ORFINGER and HARRIS, JJ., concur. 9