JACK CHERRY, JR. (A/K/A: MARVIN GIBBS, JACK WASHINGTON, JAMES RICHARDSON, TERRY REO, JACK LEMAR WILLIAMS, AND RICHARD WILLIAMS), APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Cherry appeals his conviction, challenging the trial court's preclusion of cross-examination regarding a witness's bias and its response to a jury question without counsel notification. The appellate court finds both issues merit reversal and orders a new trial.
The trial court erred on both issues raised by Cherry. First, Cherry has an absolute right to elicit facts showing a witness's bias, motive, or self-interest through cross-examination. Second, strict compliance with Florida Rules of Criminal Procedure Rule 3.410 requires counsel receive notice and an opportunity to participate in any discussion of the trial court's response to jury requests. These errors warrant reversal and a new trial. The court declines to address the state's cross-appeal issue.
[1] A trial court improperly disregards a defendant's absolute right to elicit facts showing a state witness' bias, motive, or self-interest.
[2] A trial court errs in responding to a jury's request for an additional instruction after deliberations have begun without first providing counsel with notice and an oppor…
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Join FLexlaw to unlock all legal intelligence“the trial court improperly disregarded Cherry's absolute right to elicit facts showing a state witness' bias, motive or self-interest”
Establishes the fundamental nature of the defendant's right to cross-examine on witness credibility factors
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Join FLexlaw to unlock all legal intelligenceCherry was tried on charges in Florida state court. During trial, the court prevented Cherry from cross-examining a state witness on matters of bias, …
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PER CURIAM.
On appeal, Cherry challenges as error the trial court’s (1) preclusion of his cross-examination of a state witness, (2) and its response to a question by the jury after the jurors retired to deliberate. On cross-appeal, the state contends that the trial court erred in not sentencing appellant as an habitual felony offender. We affirm in part, reverse in part and remand for a new trial.
We find that either point raised by Cherry merits reversal. As to the first allegation of error, we find that the trial court improperly disregarded Cherry’s absolute right to elicit facts showing a state witness’ bias, motive or self-interest. See Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974); Hernandez v. Ptomey, 549 So. 2d 757 (Fla. 3d DCA 1989). With regard to the second alleged error, the record does not show that counsel was provided notice and an opportunity to participate in the discussion of the action to be taken on the jury’s request. Thus, the trial court erred in responding to the jury’s request, after retiring, for an additional instruction regarding a particular point of law on an aspect of the evidence without first providing respective counsel with notice and an opportunity to be heard regarding the appropriate response. See Rule 3.410, Florida Rules of Criminal Procedure; Curtis v. State, 480 So. 2d 1277-1279 (Fla.1985) [strict compliance with rule 3.410 is not subject to the harmless error test]. Since we reverse and remand for a new trial, we find it unnecessary to address the issue raised on cross-appeal by the state.
AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.
WIGGINTON, MINER and WOLF, JJ., concur.
PER CURIAM.
We find that section 924.37(2), Florida Statutes (1989), is inapplicable to the case at issue. Accordingly, the motion for rehearing is denied.
WIGGINTON, MINER and WOLF, JJ., concur.
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Mills v. State, 620 So. 2d 1006 (Fla. 1993)…PER CURIAM. We review Mills v. State, 596 So. 2d 1148 (Fla. 4th DCA 1992), because of certified conflict with Cherry v. State, 572 So. 2d 521 (Fla. 1st DCA 1990). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. Mills was convicted of armed trafficking in cocaine and conspiracy. During jury deliberations, the jury sent a note to the trial judge. The judg…
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Mills v. State, 596 So. 2d 1148 (Fla. 4th DCA 1992)…Williams v. State, 488 So. 2d 62, 64 (Fla.1986) reaffirmed the per se rule announced in Ivory, but held that “Communications outside the express notice requirements of rule 3.410 should be analyzed using harmless error principles.” Cherry v. State, 572 So. 2d 521, 522 (Fla. 1st DCA 1990) (emphasis added) found reversible error because defense counsel did not have “notice and an opportunity to be heard regarding the appropriate response” to a jury question. The First District, however, relied on Curtis, 480 S…
Authorities Cited
- Morrell v. State, 297 So. 2d 579 (Fla. 1st DCA 1974)
- Curtis v. State, 480 So. 2d 1277 (Fla. 1985)
- Hernandez v. Honorable William R. Ptomey, Jr., 549 So. 2d 757 (Fla. 3d DCA 1989)