EUGENE HAYES, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a trial court commits reversible error by having a bailiff deliver a corrected jury instruction to the jury instead of recalling the jury to provide the instruction itself.
The trial court provided an incorrect jury instruction and attempted to correct it by having the bailiff deliver a written correction to the jury. Dur…
The full statement of facts, procedural history, and disposition for this case are member content.
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FLETCHER, Judge.
Eugene Hayes, Jr. appeals his conviction and sentence of aggravated battery, perjury in official proceedings, and official misconduct. Hayes correctly argues that the trial court reversibly erred by having the bailiff present the jury with a corrected written instruction rather than recalling the jury in order for the court to itself provide the corrected instruction.
In orally instructing the jury the trial court erred by providing an incorrect instruction. After both sides pointed out the error, the trial court sought to cure it by redacting the written instruction. Unfortunately, instead of recalling the jury for reinstruction, the trial judge asked the bailiff to take the corrected written instruction in to the jury and to point out to them the correction.
Having the bailiff provide the instruction was clearly improper (only the court is to instruct the jury) regardless of the fact that the information allegedly conveyed was correct. Thomas v. State, 348 So. 2d 634 (Fla. 3d DCA 1977); Caldwell v. State, 340 So. 2d 490 (Fla. 2d DCA 1976); Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960). Indeed, there is no way of determining from the record whether the jury actually read the corrected instruction, or what the bailiff stated, if anything, while handing it to the jury.
Because we are remanding this case for a new trial, we briefly address one other issue. While conducting the cross-examination of the witness who had executed the affidavit for issuance of an arrest warrant, the prosecutor asked if a judge had found probable cause that the defendant committed the crimes charged and the witness answered “Yes, he did.” This highly prejudicial, irrelevant information should not have been admitted.
For the foregoing reasons, we reverse and remand for a new trial.
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Citator
Cited By
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Rodriguez v. State, 842 So. 2d 1053 (Fla. 3d DCA 2003)…rder improperly bolstered the victim’s credibility because the jury could have concluded that the judge who issued the order believed the victim’s version of the incident. We agree that the testimony should not have been allowed. See Hayes v. State, 778 So. 2d 400, 401 (Fla. 3d DCA 2001) (testimony that a judge had found probable cause that the defendant had committed the crimes charged was highly prejudicial, irrelevant testimony and should not have been admitted). [*1054] Additionally, in cases such as this…
Authorities Cited
- Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)
- Caldwell v. State, 340 So. 2d 490 (Fla. 2d DCA 1976)
- Thomas v. State, 348 So. 2d 634 (Fla. 3d DCA 1977)