MARCUS JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcus Johnson appeals his convictions for armed burglary and robbery with a firearm. The court reverses and remands for a new trial because the trial judge improperly told jurors to rely on their collective memories instead of offering to have testimony read back, misleading them that read-backs were prohibited.
The trial court's instruction that jurors rely on their collective memories, while failing to inform them that read-backs of testimony could be provided, was reversible error requiring a new trial. Although trial courts have broad discretion in granting read-back requests, they may not use language that misleads jurors into believing read-backs are prohibited.
[1] A trial court may not mislead a jury into believing that read-backs of testimony are prohibited.
[2] A jury's request for a read-back of trial testimony requires a response that does not suggest such requests are impermissible.
Previewing 2 of 3 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“I don't do [read-backs].”
The trial judge's improper statement to the jury regarding availability of read-back testimony, which was the basis for reversal.
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations, the jury sent a note requesting read-back of testimony. The trial judge stated he did not do read-backs and, over defense c…
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Marcus Johnson timely appeals his convictions for armed burglary of a dwelling with an assault or battery and two counts of robbery with a firearm. We are compelled to reverse because of the trial court’s improper response to the jury’s request for a read-back of trial testimony.
The record reflects that during deliberations, the jury sent a note asking: “Would it be possible for us to get anything read back by the court reporter?” During the subsequent conference with counsel, the trial judge stated “I don’t do [read-backs].” Over defense counsel’s objection, the trial court then responded to the jurors’ question by advising them “to rely upon their collective memories of the testimony.”
Our decision is controlled by the Florida Supreme Court’s recent decision in Hazuri v. State, 91 So.3d 836 (Fla.2012). In Ha-zuri, the jury requested a trial transcript. Defense counsel recommended the trial court advise the jurors that although they were not entitled to receive transcripts, they could request the trial court have the court reporter read back testimony. Instead, over objection, the trial judge instructed the jurors to rely on their own collective recollection of the evidence. The Hazuri court held that notwithstanding a trial court’s broad discretion in determining whether to grant a read-back request, it may not use language “that would mislead a jury into believing read-backs are prohibited.” Id. at 846. As a result, the supreme court determined that Hazuri was entitled to a new trial. The relevant facts here are indistinguishable from those present in Hazuri. Accordingly, Johnson is entitled to a new trial.
We reject Johnson’s second argument— to-wit, that the sentence imposed by the trial court evidenced a presumption of vindictiveness.
AFFIRMED, in part; REVERSED, in part; REMANDED for new trial.
COHEN and JACOBUS, JJ., concur.
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Allihondra Moody v. State, 140 So. 3d 700 (Fla. 5th DCA 2014)…REMANDED FOR NEW TRIAL. SAWAYA and ORFINGER, JJ., concur. . We note that we have issued an opinion addressing a somewhat similar issue in a case involving the same trial judge who presided over the trial in the instant case. See Johnson v. State, 97 So. 3d 319 (Fla. 5th DCA 2012). To be fair, however, Moody’s trial occurred before the release of that opinion.…
Authorities Cited
- Hazuri v. State, 91 So. 3d 836 (Fla. 2012)