SHAWN A. LACUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by receiving and responding to a jury question and allowing the jury to replay a victim's statement without defense counsel present, and by failing to make specific findings regarding the admissibility of out-of-court statements.
The trial court allowed the jury to replay a victim's taped statement without notice to defense counsel and responded to a jury question in the absenc…
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PER CURIAM.
We reverse and remand for a new trial.
The trial court erred in receiving and responding to a jury question and in allowing the jury to replay the victim’s taped statement to the police without notice to and in the absence of defense counsel. This is so, even though the tape had been previously admitted into evidence. See Fla. R. Crim. P. 3.400.
In Williams v. State, 488 So. 2d 62 (Fla.1986), the supreme court concluded that the assumption underlying rule 3.400 is that both the state and defendant will be present at the time the judge directs that the material may be taken into the jury room and may be replayed by the jury. More recently, the supreme court reaffirmed the principle that it is reversible error for the trial judge to respond to a request from a jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having an opportunity to participate in the discussion of the action to be taken on the jury’s request. Bradley v. State, 513 So. 2d 112 (Fla.1987). We are satisfied that the record adequately reflects that both.counsel were absent at 10:45 a.m. when the jury made its request.
The trial court’s failure to comply with the statutory requirements of section 90.803(23), Florida Statutes (1987), also warrants reversal. The record indicates that while there was some discussion concerning the admissibility of the child/victim's out-of-court statements, there were no specific findings of fact on the record as to the basis of the trial court’s ruling or as to reliability. Woodfin v. State, 553 So. 2d 1355 (Fla. 4th DCA 1989); Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989). It is also reversible error when the trial court merely recites the boiler plate language of the statute into the record. Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988). Accordingly, we reverse appellant’s conviction and sentence and remand for a new trial.
HERSEY, C.J., and GUNTHER and POLEN, JJ., concur.
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Heuss v. State, 660 So. 2d 1052 (Fla. 4th DCA 1995)…armless-error analysis. Id., 632 So. 2d at 1377. We agree with appellant that the findings of the trial court merely track the statutory language of section 90.803(23) and, as such, are insufficient. See Hopkins, 632 So. 2d at 1377; Lacue v. State, 562 So. 2d 388 (Fla. 4th DCA 1990); Diaz v. State, 618 So. 2d 346 (Fla. 2d DCA), rev. denied, 626 So. 2d 204 (Fla.1993). The supreme court in Hopkins, when confronted with constitutional error, further explained that the trial court’s failure to make adequate fin…
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Thiefault v. State, 655 So. 2d 1277 (Fla. 4th DCA 1995)…t the matter concerning the medical examiner’s report probably would never have occurred if the proper procedure had been followed. See also Mills v. State, 620 So. 2d 1006 (Fla.1993); Williams v. State, 488 So. 2d 62 (Fla.1986). In Lacue v. State, 562 So. 2d 388, 389 (Fla. 4th DCA 1990), this court concluded that the trial court committed reversible error where it had received and responded to a jury question and allowed the jury to replay the victim’s taped statement, without notice to and in the absence o…
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Mills v. State, 596 So. 2d 1148 (Fla. 4th DCA 1992)…error occurs when a trial judge fails to notice defense counsel or the defendant of a jury question. Bradley v. State, 513 So. 2d 112 (Fla.1987); Curtis v. State, 480 So. 2d 1277 (Fla.1985); Ivory v. State, 351 So. 2d 26 (Fla.1977); Lacue v. State, 562 So. 2d 388 (Fla. 4th DCA 1990). In this case, the trial judge notified defense counsel and the defendant that the jury had a question. Williams v. State, 488 So. 2d 62, 64 (Fla.1986) reaffirmed the per se rule announced in Ivory, but held that “Communications…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988)
- Williams v. State, 488 So. 2d 62 (Fla. 1986)
- Bradley v. State, 513 So. 2d 112 (Fla. 1987)
- Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989)
- Woodfin v. State, 553 So. 2d 1355 (Fla. 4th DCA 1989)