DAVID VAN NOTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
David Van Note appealed his conviction for burglary and sexual battery. The Fourth District Court of Appeal reversed and remanded for a new trial due to multiple trial errors, including an improper Allen charge instruction to the jury, inadequate discovery of defendant's statements, failure to hold a voluntariness hearing, and potentially perjured testimony regarding the timing of police photographs.
The court reversed the conviction and remanded for a new trial. While the Allen charge alone did not require reversal due to lack of objection, when combined with the discovery violations, failure to conduct a voluntariness hearing, and the apparent perjury regarding the photographs, the cumulative errors necessitated reversal.
[1] A trial court errs by giving an unnecessary, improper, and incorrect jury instruction that discourages hung juries.
[2] A prosecutor's failure to adequately disclose a defendant's alleged statements to police, despite a discovery demand, constitutes error.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This 'instruction' to the jury was unnecessary, improper and wrong.”
The court's characterization of the trial judge's Allen charge instruction to the jury regarding hung juries and the need for a verdict.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVan Note was charged with burglary and sexual battery. During trial, the judge gave an improper instruction to the jury emphasizing the need for a una…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Voluntariness Hearing cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal from a judgment and sentence in a burglary and sexual battery case. We reverse and remand for a new trial.
During the trial judge’s preliminary remarks to the jury venire he said:
We are here to try a case. We are here to get a verdict in the trial of this case as to each charge. It takes a unanimous verdict from all six people that the defendant is guilty before he can be found guilty or that the Defendant is innocent before he can be found innocent as to each charge.
We don’t want a hung jury. It is possible to have a hung jury. It is conceivable you can’t reach a verdict, but we are not looking for that. We are looking for a verdict as to each charge, of guilty or innocent.
Do you all understand there is a possibility of three verdicts? Guilty, not guilty or that you can’t reach a verdict at all, at which time a mistrial will be declared and we’ll have to try the case over with another jury. That’s the possibility we have with a hung jury.
This “instruction” to the jury was unnecessary, improper and wrong. The giving of this “Allen ” charge1 was error but we decline to reverse on this error alone because defense counsel failed to object to the judge’s statement.
For the reasons stated by Justice Alderman in Clark v. State, and State v. Bostic, 363 So. 2d 331, (Fla.1978), we determine the same procedures should be followed in this type of error as there. Of course, we should hope this type of error will not occur again but we do note the same error has caused appellate concern from the same judicial circuit at least twice before. Flynn v. State, 351 So. 2d 377 (Fla. 4th DCA 1977); Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975).
Some other matters have come to our attention which, when coupled with the foregoing, cause us to reverse the conviction and remand the case for new trial. Firstly, it was brought out at trial that the accused made a statement to the police after his arrest. Even though demand was made by the defendant for discovery of any statements, the prosecutor failed to adequately advise the defendant of the alleged statements. Secondly, the trial judge erroneously refused to conduct a voluntariness hearing in regard to the alleged statements before he allowed their admission at trial. Before a retrial the State may reply adequately to the defendant’s demand for discovery and the court may hold a voluntariness hearing if properly requested. McDole v. State, 283 So. 2d 553 (Fla.1973); Lavigne v. State, 349 So. 2d 178 (Fla. 1 DCA 1977).
Next we turn to a matter of the most grave consequences and which smack of the same type of police misconduct, or worse, as was condemned by our Supreme Court in Martin v. State, 360 So. 2d 396 (Fla.1978). We commend the assistant attorney general who, at oral argument here, candidly conceded the impossibility outlined below.
The court allowed introduction of some photographs of the appellant taken by the police. A full inquiry into these photographs and their origin should be made first by the prosecutor and then, if necessary, by the court. It was pointed out to us that the alleged victim could not have seen the photographs she said she saw and initialed at 5:50 A. M. It is very possible perjury and subornation of perjury were committed and that cannot go uncorrected. It is probable someone gave these photographs to the witness not at 5:50 A. M. but at a later time and she then placed her initials and the “5:50 A. M.” upon them and testified she put them there at 5:50 A. M. The photographs were taken much after the time endorsed upon them. An appellate court has the right, nay, the duty, “to reject ‘inherently incredible and improbable testimony or evidence’ ”,2 and to call for a correction of the matter. REVERSED AND REMANDED.
ANSTEAD, J., and BASKIN, NATALIE, Associate Judge, concur. . Allen v. United States of America, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Farrow v. State, 573 So. 2d 161 (Fla. 4th DCA 1990)…h GUNTHER, J., concurs. . Biscardi relied on Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975), which held that the giving of what was in effect an Allen charge to the jury panel on voir dire was prejudicial error. However, in Van Note v. State, 366 So. 2d 78 (Fla. 4th DCA 1978), this court refused to reverse based upon the giving of a similar charge because defense counsel had failed to object to the judge's statement. Thus, it was not considered to be fundamental error. The giving of [*163] an "Allen”…
-
R.E. Ragen v. Paramount Hudson, Inc., 434 So. 2d 907 (Fla. 3d DCA 1983)…l, 294 So. 2d 46 (Fla. 3d DCA 1974). When, as here, it is likely that a correctable injustice has been done, we will not hesitate to order that a new trial be conducted based on all the available evidence. Jackson v. State, supra; Van Note v. State, 366 So. 2d 78 (Fla. 4th DCA 1978), cert. denied, 376 So. 2d 76 (Fla.1979). The order under review is therefore reversed and the cause remanded with directions to vacate the final judgment and to set the cause for trial. Reversed.…
-
Mahan v. Parliament Ins. Co., 382 So. 2d 402 (Fla. 4th DCA 1980)…er-tos y Aviación Comercial v. Boy, 180 So. 2d 503, 506 (Fla. 2d DCA 1965), as amended on denial of rehearings (1965). Based on the totality of the circumstances, we affirm. AFFIRMED. DOWNEY, C. J., and MOORE, J., concur. . In Van Note v. State, 366 So. 2d 78, 80 (Fla. 4th DCA 1978, rehearing denied 1979), we reversed a conviction and remanded for new trial principally because “It is very possible perjury and subornation of perjury were committed and that cannot go uncorrected.” . “2. I was an employee…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- McDOLE v. State, 283 So. 2d 553 (Fla. 1973)
- Lavigne v. State, 349 So. 2d 178 (Fla. 1st DCA 1977)
- Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975)
- Flynn v. State, 351 So. 2d 377 (Fla. 4th DCA 1977)
- Martin v. State, 360 So. 2d 396 (Fla. 1978)