RICHARD HENDRICKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Hendrickson was convicted of sexual battery upon a child and lewd conduct. The Fourth District Court of Appeal reversed his convictions because the trial judge unconstitutionally instructed jurors that they could not request testimony be read back during deliberations, which interfered with the jury deliberation process.
The instruction constituted harmful error requiring reversal and remand for a new trial. Although jurors were allowed to take notes, the instruction still interfered with the jury deliberation process and the error cannot be established as harmless beyond a reasonable doubt.
[1] A trial court's preliminary instruction to prospective jurors prohibiting them from requesting testimony be read back during deliberations constitutes harmful error.
[2] A jury's ability to take notes during trial does not cure the harmful error of a preliminary instruction that prohibits jurors from requesting testimony be read back duri…
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Join FLexlaw to unlock all legal intelligence“Harmful error occurs when a trial judge or anyone else interferes with the jury deliberation process.”
Establishes the standard that any interference with jury deliberations constitutes harmful error
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Join FLexlaw to unlock all legal intelligenceHendrickson was convicted of three counts of sexual battery upon a child less than twelve years of age and one count of lewd, lascivious, or indecent …
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[*441] GARRETT, Judge.
Appellant seeks review of his convictions for three counts of sexual battery upon a child less than twelve years of age and a count of lewd, lascivious, or indecent assault or act upon a child. We write to address one of the issues raised by appellant. We find no error as to the remaining issues.
Florida Rule of Criminal Procedure 3.410 provides:
After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them.
However, the trial judge’s preliminary instructions to the venire, stated:
Number three, prospective jurors are not allowed to ask the court reporter during the deliberation process to have the court reporter read back to you the testimony of any of the witnesses. You have to listen very carefully and attentively to what the witnesses have to say because you’re only going to hear it once.
This court’s holdings in Biscardi v. State, 511 So. 2d 575, 580-581 (Fla. 4th DCA 1987), and Huhn v. State, 511 So. 2d 583, 591 (Fla. 4th DCA 1987), condemned similar instructions as harmful error aggravated by the judge (who presided over both trials) refusing to allow the jury to take notes.
The jury was allowed to take notes during the trial at bar. But, although the jurors were allowed to take notes in George v. State, 548 So. 2d 867 (Fla. 4th DCA 1989), this court reversed the trial judge who presided over this case for giving an almost identical instruction.
Harmful error occurs when a trial judge or anyone else interferes with the jury deliberation process.1 Allowing jurors to take notes does not lessen the error. Harmful error whether aggravated or not is still harmful error. The fact that jurors might have asked questions pertaining to the instructions or requested testimony read back if they thought it possible remains a compelling reason to condemn the instruction. Given the sanctity of a jury room, the State cannot establish that such error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Accordingly, we reverse appellant’s convictions and sentences and remand for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
ANSTEAD and POLEN, JJ., concur. . We consider the giving of the instruction to be fundamental error which amounted to a denial of due process. Appellant’s failure to object at trial did not waive appellate review. See Ray v. State, 403 So. 2d 956, 959-960 (Fla.1981).
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Velazquez v. State, 570 So. 2d 400 (Fla. 4th DCA 1990)…nt failed to timely object to the trial court’s pre-trial 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 holdin…
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Farrow v. State, 573 So. 2d 161 (Fla. 4th DCA 1990)…s would have to pay attention because the judge would not 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…
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Diaz v. State, 567 So. 2d 18 (Fla. 3d DCA 1990)…. 2d 701 (Fla.1978); State v. Smith, 240 So. 2d 807 (Fla.1970). (Indeed, although we need not reach the point, it seems likely that the instruction, even if the subject of an objection at the trial, was no more than harmless.3) Hendrickson v. State, 556 So. 2d 440 (Fla. 4th DCA 1990) is apparently contrary to this conclusion. We completely disagree with that decision. Affirmed. .The trial, which was the very definition of the proverbial "slow plea,” occurred instead of the faster and more efficient process…
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
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)
- Cyrus Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987)
- George v. State, 548 So. 2d 867 (Fla. 4th DCA 1989)