ALEJANDRO JASSAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alejandro Jassan appeals his conviction for sexual battery on a child, arguing the trial court erred by allowing a videotape of the child victim's statement to be viewed by the jury during deliberations. The appellate court affirmed the conviction, holding that while providing the videotape was error, it was neither preserved for appellate review nor fundamental error warranting a new trial.
The court held that delivering the videotape to the jury room was error because such videotaped interviews are self-serving, testimonial, and deny the accused the right of cross-examination. However, absent a contemporaneous objection, the issue was not preserved for appellate review. Additionally, the error was harmful and prejudicial but not fundamental error, and the ineffective assistance of counsel claim was not properly raised and should be pursued through post-conviction relief.
[1] Videotaped interviews of child victims are generally inadmissible in jury rooms during deliberations as they are testimonial and deny the accused the right of cross-exami…
[2] The delivery of a child victim's videotaped statement to the jury during deliberations, while potentially harmful and prejudicial, does not constitute fundamental error.
Previewing 2 of 5 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“Because videotaped interviews with child victims, when introduced to prove allegations of sexual abuse, are self-serving, testimonial, and deny an accused the right of cross-examination, they are not permitted in jury rooms during deliberations.”
Establishes the legal rule that such videotapes should not be provided to jurors, citing Young v. State.
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Join FLexlaw to unlock all legal intelligenceJassan was convicted of two counts of sexual battery on a child under twelve years old. A videotape of the alleged victim's statement was admitted as …
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CASANUEVA, Judge.
Following a jury trial, Alejandro Jassan was convicted of two counts of sexual battery on a child under the age of twelve years. Mr. Jassan asserts the trial court committed three errors during his trial. We affirm his conviction without discussion of two issues and review only his primary •contention that it was error to allow a videotape of the child victim’s statement to go to the jury during their deliberations.
After closing argument, the trial court inquired of both counsel whether it would be appropriate to provide the jurors the exhibits admitted at trial for use in their deliberations. Among the exhibits specifically identified by the trial court to counsel was exhibit seven, a videotape of the alleged child victim’s statement. Neither party objected — in fact, the defense stipulated — to the delivery of the videotape to the jury room. Mr. Jassan now claims the providing of the videotape was fundamental error. Because videotaped interviews with child victims, when introduced to prove allegations of sexual abuse, are self-serving, testimonial, and deny an accused the right of cross-examination, they are not permitted in jury rooms during deliberations. See Young v. State, 645 So. 2d 965 (Fla.1994).
Therefore, it was error to deliver the tape to the jurors. In the absence of a contemporaneous objection, however, we are required to hold that this issue has not been preserved for appellate review. See Chandler v. State, 702 So. 2d 186 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998); Jackson v. State, 723 So. 2d 319 (Fla. 2d DCA 1998).
Recognizing this procedural impediment, Mr. Jassan’s counsel further argues that Mr. Jassan is entitled to a new trial because the error is fundamental. Where fundamental error exists, an appellate court may grant a new trial. See Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996).
A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process. See Hopkins v. State, 632 So. 2d 1372 (Fla.1994).
Cases reviewing this type of error, however, such as Young and Tullis v. State, 716 So. 2d 819 (Fla. 5th DCA 1998), have held that delivery of the victim’s videotaped statement to the jury may be harmful and prejudicial but not fundamental error. We reach the same conclusion and decline to award a new trial on this basis.
Finally, Mr. Jassan has asked us to determine, in the absence of a motion for post-conviction relief, that Mr. Jassan’s trial counsel was ineffective and, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to award a new trial. Only in rare instances, where counsel’s egregious conduct is clearly demonstrable from the record and when it would be a waste of judicial resources for the trial court to address the issue in another proceeding, has this court granted such relief. See Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1998).
Here, although other errors regarding counsel’s performance were suggested at oral argument, we determine that these issues should be raised by an appropriate motion for post-conviction relief. Upon a proper record, the reviewing court, be it trial or appellate, can ascertain whether counsel’s performance was deficient and resulted in a prejudice similar to the harmful error noted in both Young and Tullis.
Affirmed.
PARKER, A.C.J., and STRINGER, J., Concur.
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Corzo v. State, 806 So. 2d 642 (Fla. 2d DCA 2002)…ise ineffective assistance of counsel on direct appeal are very uncommon. The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So. 2d 55 (Fla.2001); Jassan v. State, 749 So. 2d 511, 512 (Fla. 2d DCA 1999); Caison v. State, 695 So. 2d 872, 872 (Fla. 3d DCA 1997). On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by…
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Hank Mathew v. State, 837 So. 2d 1167 (Fla. 4th DCA 2003)…996)), cert, denied, — U.S. —, 123 S.Ct. 567 (2002). “A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Jassan v. State, 749 So. 2d 511, 512 (Fla. 2d DCA 1999). Applying this definition, it is ‘dear that not every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error. Here, we hold that the trial judg…
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Petrucelli v. State, 855 So. 2d 150 (Fla. 2d DCA 2003)…al, and it also argues that any error was harmless. “A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Jassan v. State, 749 So. 2d 511, 512 (Fla. 2d DCA 1999); see also Reeves v. State, 647 So. 2d 994, 995 (Fla. 2d DCA 1994) (finding that the trial court committed fundamental error when it gave a misleading jury instruction regarding an essential element of the crime); Mercer v. St…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Oba Chandler v. State, 702 So. 2d 186 (Fla. 1997)
- Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)
- Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)
- Young v. State, 645 So. 2d 965 (Fla. 1994)
- Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1998)
- DeBlase v. Roth, 523 U.S. 1083 (U.S. 1998)
- Jackson v. Walker, 523 U.S. 1083 (U.S. 1998)
- Tyrel Jackson v. State, 723 So. 2d 319 (Fla. 2d DCA 1998)
- Tullis v. State, 716 So. 2d 819 (Fla. 5th DCA 1998)