SHANE OTERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shane Otero was convicted of capital sexual battery and related offenses. He sought post-conviction relief under Florida Rule of Criminal Procedure 3.850, raising ten claims of ineffective assistance of counsel. The court affirmed the denial of nine claims but reversed the summary denial of one claim involving defense counsel's failure to object to a procedure disapproved by Florida's supreme court.
The court reversed the summary denial of Otero's ineffective assistance claim and remanded for further proceedings. The court held that defense counsel's stipulation to a procedure disapproved by the Florida Supreme Court constituted potential ineffective assistance, and because the postconviction court summarily denied the claim without a full record on the issue of prejudice, the matter must be remanded for proper consideration under Strickland v. Washington.
[1] A jury's viewing of videotaped interviews of child victims in the jury room during deliberations creates a real danger of unfairly giving more emphasis to the child's sta…
[2] The proper procedure when a jury requests to view a taped interview is to replay it in open court.
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“such videotaped interviews should not be allowed into the jury room because of the "real danger that the child's statements will be unfairly givén more emphasis than other testimony."”
Establishes the Florida Supreme Court's holding in Young v. State regarding the danger of allowing jury room access to videotaped child victim interviews
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Join FLexlaw to unlock all legal intelligenceOtero was convicted of capital sexual battery, lewd and lascivious molestation, and attempted lewd and lascivious molestation. During jury deliberatio…
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Shane Otero was convicted of capital sexual battery, lewd and lascivious molestation, and attempted lewd and lascivious molestation. He later sought relief from the convictions pursuant to Florida Rule of Criminal Procedure 3.850, raising ten claims. We affirm the denial of Otero’s claims without further comment, with one exception.
In claim 1, Otero alleged ineffective assistance when defense counsel failed to object, and in fact agreed, to the jury’s viewing of the victims’ videotaped interviews in the jury room during its deliberations. In Young v. State, 645 So.2d 965, 967 (Fla.1994), the supreme court held that such videotaped interviews should not be allowed into the jury room because of the “real danger that the child’s statements will be unfairly givén more emphasis than other testimony.” The proper response to a jury’s request to view a taped interview is to replay it in open court. Id. at 968.
The postconviction court summarily denied this claim, observing that defense counsel had been granted a standing objection on this issue. But in motions for reconsideration, Otero pointed out that the standing objection related to the jury’s viewing of the recordings, not to the location of the viewing. In fact, defense counsel agreed that if the court allowed the jurors to view the interviews, they could do so in the jury room. In the final order, the postconviction court denied relief on this claim, holding that “the parties stipulated that the videotape could go back to the jury room.” Of course, defense counsel’s stipulation to that procedure was the very basis of Otero’s ineffective assistance claim.
*232As this court has explained in a case with similar facts, the issue is whether Otero was prejudiced by counsel’s agreement to a procedure that has been disapproved by the supreme court. See Ruiz v. State, 108 So.3d 694, 696 (Fla. 2d DCA 2013) (reversing summary denial of ineffective assistance claim based on counsel’s failure to object to videotape of child victims being sent to jury room during deliberations). Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), prejudice occurs when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Because the postconviction .court summarily denied this claim, we have a limited record that does not include information bearing on the issue of prejudice, e.g., the content of the recorded interviews, the content of the victims’ in-court testimony, or the time that elapsed between the jury’s receipt of the videotapes and its verdict. We reverse the summary denial of relief on this claim and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
LaROSE and SALARIO, JJ., Concur.
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Citator
Cited By
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Reynoldo Martin-Godinez v. State (Fla. 1st DCA 2020)…deemed ineffective for failing to object to a videotaped CPT interview being sent to the jury room during deliberations where this omission results in prejudice. See McLevy v. State, 849 So. 2d 431, 432 (Fla. 1st DCA 2003); see also Otero v. State, 169 So. 3d 231 (Fla. 2d DCA 2015). Nonetheless, we hold that Martin-Godinez did not demonstrate an entitlement to an evidentiary hearing on this claim, because he did not make a sufficient allegation of prejudice.2 To prove ineffective assistance a defendant must…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Young v. State, 645 So. 2d 965 (Fla. 1994)
- Ruiz v. State, 108 So. 3d 694 (Fla. 2d DCA 2013)