CHRIS A. PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Palmer was convicted of battery on a law enforcement officer. On appeal, the Fifth District Court affirmed his conviction, finding that an attorney-client privilege violation was harmless error and that an Allen-type jury instruction was permissible because both counsel had reviewed and agreed to it. However, the court vacated and remanded for resentencing due to an improper sentencing enhancement.
The court held that while the privilege violation was erroneous, it was harmless beyond a reasonable doubt. The Allen-type jury instruction was not error because both counsel reviewed, commented on, and agreed to it. The sentencing enhancement was improper and required resentencing because the statute required possession of a firearm or destructive device.
[1] An error in overruling an objection based on attorney-client privilege is harmless beyond a reasonable doubt if the record shows the error did not contribute to the verdi…
[2] Giving an Allen-type jury instruction is not error when both counsel have reviewed, commented upon, and agreed to the instruction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“After reviewing the record and the context of the question and answer, however, we conclude that this error was harmless beyond a reasonable doubt.”
Establishes that the attorney-client privilege violation was subject to harmless error analysis rather than automatic reversal.
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Join FLexlaw to unlock all legal intelligencePalmer was tried and convicted of battery on a law enforcement officer. At trial, the court overruled Palmer's objection based on attorney-client priv…
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PER CURIAM.
We find no merit in most of Palmer’s multiple claims of error in the conduct of his trial, which resulted in conviction of battery on a law enforcement officer. We do agree with Palmer that the lower court erred in overruling his objection, on grounds of attorney/client privilege, to the question: “At some point did you tell your attorneys about it?” After reviewing the record and the context of the question and answer, however, we conclude that this error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
On appeal, Palmer also claims the right to a new trial based on an Allen 1-type of charge given to the jury at the court’s suggestion. We question the wisdom of giving this charge, which is similar to the Eleventh Circuit Court of Appeals’ pattern Allen instruction,2 in preference to the Florida standard instruction. Florida courts have demonstrated extreme sensitivity to the potential coercive effect of such jury charges, and instructions containing elements broadly similar to the Eleventh Circuit’s have been held to be reversible error in Florida. See, e.g., Bass v. State, 611 So. 2d 611, 611-12 (Fla. 2d DCA 1993) (modified Allen charge “urg[ed] the jurors to consider the expense that a new trial would involve”); Hollywood Corp. Circle Assocs. v. Amato, 604 So. 2d 888, 891 (Fla. 4th DCA 1992) (modified Allen charge informed the jury that if it did not return a unanimous verdict “it was going to be ‘terrible [sic] expensive to everybody' ”); Nelson v. State, 438 So. 2d 1060,1062-63 (Fla. 4th DCA 1983) (modified Allen charge “made it appear that unless a verdict was reached great waste would occur and the court’s confidence in the jury’s common sense would somehow have been betrayed”); see also Warren v. State, 498 So. 2d 472, 477-78 (Fla. 3d DCA 1986) (holding that emphasizing the “needless cost involved in retrying the case” was a strictly forbidden comment in Florida), review denied, 603 So. 2d 328 (Fla.1987); Rodriguez v. State, 462 So. 2d 1175,1178 (Fla. 3d DCA), review denied, 471 So. 2d 44 (Fla.1985) (“The jurors should not have been required, as the trial judge told them, to consider the public moneys expended on the trial and to melt their ‘minds and personalities into one to reach a verdict.’ ”).
In this ease, however, the court gave the now challenged instruction only after both counsel had reviewed it, commented upon it and agreed to it. Under the circumstances, there was no error, much less fundamental error. As to sentencing, we agree that it was error to score a 1.5 enhancement for simple battery on a law enforcement officer.
Section 775.087(2)(a)2, Florida Statutes (1993), requires possession of a firearm or destructive device. See Fla. R.Crim. P. 3.702(d)(14), This error requires correction and resentencing.
We find no merit to appellant’s other attacks on his scoresheet.
JUDGMENT AFFIRMED; SENTENCE VACATED and REMANDED.
W. SHARP, GRIFFIN and THOMPSON, JJ., concur. . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
. We note that one panel of the United States Eleventh Circuit Court of Appeals considered a similar instruction to be both confusing and coercive, although the panel ultimately found itself bound by circuit precedent to hold the instruction to be permissible. United States v. Rey, 811 F. 2d 1453 (11th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 103, 98 L.Ed.2d 63 (1987). The instruction subsequently has been held not to be coercive. United States v. Chigbo, 38 F. 3d 543, 546 (11th Cir.1994), cert. denied, — U.S. —, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995).
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Scoggins v. State, 691 So. 2d 1185 (Fla. 4th DCA 1997)…ction. Both lawyers acceded to the proposed inquiry and requested no additional instruction. Absent fundamental error, an objection is required to preserve the issue of a trial judge’s coercion of a verdict for appellate review. See Palmer v. State, 681 So. 2d 767 (Fla. 5th DCA 1996); Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990), review denied, 577 [*1189] So. 2d 1326 (Fla.1991); Warren v. State, 498 So. 2d 472, 477 (Fla. 3d DCA 1986), review denied, 503 So. 2d 328 (Fla.1987). One reason for requi…
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Monforto v. State, 28 So. 3d 65 (Fla. 2d DCA 2009)…Florida Standard Jury Instruction (Criminal) 4.1.1 Deviations from the approved [*67] instruction are not recommended, as “Florida courts have demonstrated extreme sensitivity to the potential coercive effect of such jury charges.” Palmer v. State, 681 So. 2d 767, 767 (Fla. 5th DCA 1996). In this case, when the jurors returned to the courtroom after announcing their numerical split, the judge told them that he knew they had worked hard to reach a verdict but apparently it had not been possible for them to d…
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Cosmos K. Ficklin. v. State, 686 So. 2d 708 (Fla. 1st DCA 1996)…admissibility of evidence will not be reversed on appeal absent showing of abuse of discretion). We conclude also that the appellant has not demonstrated reversible error either in the trial court’s giving the modified Allen charge, Palmer v. State, 681 So. 2d 767 (Fla. 5th DCA 1996) (no error in trial court’s giving modified Allen charge where both counsel were given opportunity to review it and comment thereon), or in the state’s closing argument. Spencer v. State, 133 So. 2d 729, 731 (Fla.1961) (prosecutor…
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 (12 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- United States v. REY, 811 F.2d 1453 (11th Cir. 1987)
- Howard v. Ariz. Dep't of Revenue, 484 U.S. 830 (U.S. 1987)
- Sanders v. Commissioner of Internal Revenue, 484 U.S. 830 (U.S. 1987)
- Berry Nelson v. State, 438 So. 2d 1060 (Fla. 4th DCA 1983)
- Orestes Rodriguez v. State, 462 So. 2d 1175 (Fla. 3d DCA 1985)
- Morales v. Four Star Poultry & Provision Co., Inc., 498 So. 2d 472 (Fla. 3d DCA 1986)
- Warren v. State, 498 So. 2d 472 (Fla. 3d DCA 1986)
- United States v. Chigbo, 38 F.3d 543 (11th Cir. 1994)