DARRYL JACKSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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In this second-degree murder case, the trial judge was absent from the courtroom when the jury sent a written question about the meaning of "ill will, hatred, spite or an evil intent." Although both the prosecution and defense agreed to the judge's absence and the innocuous response provided, the Florida Supreme Court's per se rule in Brown v. State required reversal because the judge must be physically present during all jury communications.
The court held that the judge's absence when a jury communication is received and answered constitutes per se, un-waivable reversible error under the Supreme Court's decision in Brown v. State, regardless of whether the parties agreed to the absence or whether any actual harm can be demonstrated.
[1] A trial judge's physical presence is required when a jury communicates with the court during deliberations.
[2] The absence of the trial judge when a jury communication is received and answered constitutes per se, un-waivable error.
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Join FLexlaw to unlock all legal intelligence“the judge's presence cannot be waived when a jury wishes to communicate with the court during its deliberations. Free discourse is essential in such a situation but is thwarted by the judge's absence.”
Establishes the supreme court's foundational principle that judge presence is essential and cannot be waived for jury communications
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations in a second-degree murder case, the jury submitted a written note asking for examples of acts done with "ill will, hatred, s…
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SCHWARTZ, Chief Judge.
During its deliberations in this second-degree murder case, the jury sent the court a written note via the bailiff seeking “examples” of acts done with “ill will, hatred, spite or an evil intent.” With the concurrence of both sides, the trial judge, who was absent from the courtroom at the time, conferred with counsel by telephone and, as the attorneys also agreed, ordered the bailiff to type and transmit to the jury the innocuous response that it should “please rely on the instructions that we have already provided for you.” Although there is no showing of complaint or other appropriate preservation below of any error in the substantive response, or of any harm to the defendant from this incident, we are nevertheless compelled to reverse the ensuing conviction for a new trial because of it. In Brown v. State, 538 So. 2d 833 (Fla.1989), the supreme court unequivocally established a rule of per se, un-waivable error, which is deemed to occur when, as here, the trial judge is not physically present when a jury communication is received and responded to:
[W]e hold that the judge’s presence cannot be waived when a jury wishes to communicate with the court during its deliberations. Free discourse is essential in such a situation but is thwarted by the judge’s absence. In the instant case the jurors might have requested that portions of the testimony be read back to them when informed that they could not have the transcripts. Both the prosecutor and defense counsel went into the jury room to talk with the jurors. Brown now claims that the prosecutor did most of the talking to the jurors and that he told them that he did not want any more questions. We do not know what tone of voice this might have been said in, nor do we know the prosecutor’s demeanor and manner in dealing with the jury. The prosecutor’s statements and conduct, indeed this whole procedure, might well have had a chilling effect on the jury’s deliberations. No one can say at this point that the judge’s absence did not have a detrimental effect on the jury’s deliberations. The possibility of prejudice is so great in this situation that it cannot be tolerated. We hold, therefore, that communications from the jury must be received by the trial judge in person and that the absence of the judge when a communication is received and answered is reversible error, [e.s.]
Brown v. State, 538 So. 2d at 836; accord Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994); Young v. State, 591 So. 2d 651 (Fla. 1st DCA 1991); Bacquie v. State, 546 So. 2d 137 (Fla. 3d DCA 1989); Ortiz v. State, 543 So. 2d 377, 379 n. 1 (Fla. 3d DCA 1989). We have no choice but to follow and apply this pronouncement of our supreme court.
Reversed and remanded.
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Citator
Cited By
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Glee v. State, 639 So. 2d 1092 (Fla. 4th DCA 1994)…ight to have the trial judge present at all stages of the proceedings. Brown v. State, 538 So. 2d 833 (Fla.1989). The accused may waive that right in certain limited circumstances, but not through counsel acting alone. Id. See also Jackson v. State, 636 So. 2d 99 (Fla. 3d DCA 1994); Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994); and Young v. State, 591 So. 2d 651 (Fla. 1st DCA 1991). We agree with our sister court that this issue is not susceptible to a harmless error test. See Peri v. State, 426 So…
Authorities Cited
- Brown v. State, 538 So. 2d 833 (Fla. 1989)
- Ortiz v. State, 543 So. 2d 377 (Fla. 3d DCA 1989)
- Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994)
- Young v. State, 591 So. 2d 651 (Fla. 1st DCA 1991)
- Dudley Bacquie v. State, 546 So. 2d 137 (Fla. 3d DCA 1989)