CALVIN ROLAND GEORGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Calvin George appealed his aggravated battery with a firearm conviction, raising five trial errors. The court found merit only in his contention that the trial court's instruction prohibiting jury read-back of testimony after deliberations began constituted fundamental and reversible error under Florida law.
The court found reversible error only in the instruction prohibiting jury read-back of testimony during deliberations. Florida Rule of Criminal Procedure 3.410 permits the trial court to provide reinstruction or read-back testimony upon juror request, and instructing the jury that such relief was unavailable violated the rule and constituted fundamental and reversible error.
[1] A trial court errs by instructing a jury that it cannot have testimony read back during deliberations.
[2] A jury's inability to request a read-back of testimony during deliberations may constitute fundamental and reversible error.
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Join FLexlaw to unlock all legal intelligence“You are not allowed to have the court reporter, once you begin your jury deliberations, to have the testimony of the witnesses read back to you. You have to listen carefully and attentively to what the testimony is of the witnesses, because you are going to hear it only once.”
The exact jury instruction the trial court gave that constituted reversible error.
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Join FLexlaw to unlock all legal intelligenceCalvin Roland George was convicted of aggravated battery with a firearm. At trial, the court instructed the jury that they could not have the court re…
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DELL, Judge.
Calvin Roland George appeals his conviction and sentence for aggravated battery with a firearm. He contends the trial court erred by overruling his objection to a racially motivated peremptory challenge of a black juror; by limiting his cross examination of the victim; by limiting his counsel’s redirect examination of him; by giving a preliminary instruction to the jury that it could not have a read-back of testimony; and by imposing 50.3 community service hours as part of his sentence. The state concedes that the trial court did not have authority to impose community service hours. See Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987).
We find merit only in appellant’s contention that the trial court erred when it instructed the jury that after they had begun deliberations they could not have the court reporter read back the testimony of the witnesses. The court stated in its preliminary instruction:
You are not allowed to have the court reporter, once you begin your jury deliberations, to have the testimony of the witnesses read back to you. You have to listen carefully and attentively to what the testimony is of the witnesses, because you are going to hear it only once.
Appellant cites this court’s decisions in Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987) and Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987), and argues that the court’s instruction constituted fundamental and reversible error. We agree.
In Huhn and Biscardi, the trial court instructed the jury that there was no provision for reinstruction or to have testimony read back and that the, jury would have to remember the instructions and testimony as best they could. In Huhn, we concluded that the jurors might have asked questions pertaining to the instructions or requested a read back of certain testimony if they thought it possible. Huhn pointed out that:
Florida Rule of Criminal Procedure 3.410 permits but does not require the trial court, on the juror’s request, to “give them such additional instructions or ... order such testimony read to them” as the jurors have requested. Counsel for both sides must have notice that this is going to be done. Id. It clearly does not prohibit the trial court from reinstruction nor having testimony reread; yet we have to assume, as reasonable people, that some, or all, of the jury so understood the trial court’s remarks to mean such prohibition existed.
... perhaps jurors would have asked questions pertaining to the instructions or sought to have certain testimony read to them if they had thought it possible. In our view, the error was harmful.
Id. at 591.
For the reasons stated in Huhn and Bis-cardi we hold that the trial court’s instruction constituted reversible error. Accordingly, we reverse appellant’s conviction and remand this case for a new trial.
REVERSED and REMANDED.
WALDEN and POLEN, JJ., concur.
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Velazquez v. State, 570 So. 2d 400 (Fla. 4th DCA 1990)…l instruction concerning the read back of testimony and therefore this issue has not been preserved. See Farrow v. State, 573 So. 2d 161 (Fla. 4th DCA 1990) (receding from Hendrickson v. State, 556 So. 2d 440 (Fla. 4th DCA 1990) and George v. State, 548 So. 2d 867 (Fla. 4th DCA 1989)). We reverse, however, appellant’s conviction for the separate crime of improper display of a firearm as being vio-lative of double jeopardy under the supreme court’s holding in Hall v. State, 517 So. 2d 678 (Fla.1988).1 AFFIR…
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Roper v. State, 608 So. 2d 533 (Fla. 5th DCA 1992)…pplied). Simmons at 267. See also Jenkins v. State, 317 So. 2d 114, 116 (Fla. 3d DCA 1975). Other Florida courts have found error where a trial court leads a jury to believe testimony cannot be read back under any circumstances. In George v. State, 548 So. 2d 867 (Fla. 4th DCA 1989), the court held that the trial court had committed reversible error when it instructed the jury that once they began deliberations they could not have the court reporter read back the testimony of the witnesses. In Huhn v. State,…
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Farrow v. State, 573 So. 2d 161 (Fla. 4th DCA 1990)…t permit a readback of testimony was fundamental error compelling the reversal of appellant’s conviction and sentence. We- hold that it is not and thereby recede from both Hendrickson v. State, 556 So. 2d 440 (Fla. 4th DCA 1990) and George v. State, 548 So. 2d 867 (Fla. 4th DCA 1989). During his preliminary instruction to the venire, the trial court stated: Number five, with respect to the testimony of the witnesses you’re going to have to listen very carefully to the testimony of the witnesses because you’…
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
- Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)
- Cyrus Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987)
- Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987)