FRANK EMANUEL ROMERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2015-07-24
No. 5D14-3309
LAWSON, C.J., and SAWAYA, J., concur.
169 So. 3d 1261 Florida District Court of Appeal, Fifth District (2015) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Frank Romero appeals his convictions for lewd or lascivious molestation and conduct, challenging the trial judge's response to the jury's request for trial transcripts. The appellate court affirms the convictions but addresses the proper procedure for handling jury requests for read-backs of testimony, clarifying that while the trial court erred in not informing the jury of the read-back option, the error was not fundamental because it was not preserved by objection.


Holding

The trial court erred by not informing the jury of the read-back option and not asking which testimony the jury wanted reviewed, as required by Hazuri v. State. However, because the error was not preserved by objection, reversal is appropriate only if the error constitutes fundamental error. The court concluded that the trial court's response did not constitute fundamental error requiring reversal.


Headnotes

[1] A trial court has discretion to allow or deny a jury's request to review transcripts of testimony.

[2] A trial court may, in its discretion, have portions of trial testimony read back to the jury upon request.

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Key Quotes

“When a jury inquires about the availability of trial transcripts, the judge should instruct the jury that transcripts are unavailable but that the jury can request to have any testimony read back.”

Establishes the proper procedure trial judges must follow when juries request transcripts, citing Hazuri v. State.

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Facts & Procedural History

After the jury began deliberations, it asked several questions including whether transcripts of testimony were available. The trial judge and prosecut…

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Opinion of the Court
COHEN, J.

COHEN, J.

Frank Romero appeals his convictions for two counts of lewd or lascivious molestation and one count of lewd or lascivious conduct. We affirm as to all issues raised on appeal, but write to address the trial judge’s handling of the jury’s request for trial transcripts.

After beginning deliberations, the jury asked a series of questions, one of which was whether transcripts of the testimony were available.1 The prosecutor and the court responded that transcripts were not available. Although defense counsel suggested that the testimony could be read back, when the trial judge summarized his proposed answers to the various questions propounded — including informing the jury that transcripts were unavailable — defense counsel assented to those answers.

Romero relies on Hazuri v. State, 91 So.3d 836 (Fla.2012), to argue that his conviction must be reversed. In Hazuri, the Florida Supreme Court explained that a trial judge should not use any language that would mislead a jury into believing that read-backs are prohibited. Id. at 845-46. Simply informing the jury that transcripts are unavailable does just that. When a jury inquires about the availability of trial transcripts, the judge should instruct the jury that transcripts are unavailable but that the jury can request to have any testimony read back. Id. at 846. The judge should also ask the jury to specify which testimony they wish to review. Id. This clarification is required so that the trial judge may appropriately exercise his or her discretion in ruling on any read-back requests. Id.

Romero correctly notes that the trial court neither informed the jury of the possibility of a read-back nor asked the jury to specify which testimony they want*1263ed to review. The technological issues involved when proceedings are recorded, rather than taken down stenographically, are not insurmountable. Digitally recorded- courtrooms are monitored to ensure that a record is produced. Playbacks of testimony vary depending upon the jurisdiction: some replay testimony from the digital server directly back into the courtroom, while others place the required testimony on a DVD or flash drive, which can be played back to the jury. None of the techniques utilized are uncommon or particularly time consuming, other than the read-back itself.

Romero is also correct that “a harmless error analysis cannot be conducted when a judge preemptively instructs a jury that it cannot have any testimony read back”; therefore, “such error is per se reversible error.” See id.; see also State v. Barrow, 91 So.3d 826, 834-35 (Fla.2012). Both Hazuri and Barrow, however, involved scenarios in which the blanket denial of a request for a read-back was preserved by objection. Here, Romero failed to preserve this issue for review.

In Delestre v. State, 103 So.3d 1026, 1028 (Fla. 5th DCA 2012), this Court held that a challenge to a trial court’s refusal to consider a read-back of testimony must be preserved by objection. When the error is not preserved, reversal is appropriate only when the trial court’s response constitutes fundamental error. As stated in Delestre, “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. (citing Smith v. State, 521 So.2d 106, 108 (Fla.1988)). We conclude that the trial court’s response in this case did not constitute fundamental error. Cf. Gonzalez v. State, 136 So.3d 1125, 1147 (Fla.2014).

AFFIRMED.

LAWSON, C.J., and SAWAYA, J., concur.


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Citator

Cited By

  • Romero v. State, 300 So. 3d 794 (Fla. 5th DCA 2019)
    …re unavailable. The jury convicted Appellant as charged, following which he was sentenced to twenty-five years in prison and lifetime sex-offender probation. His conviction and sentence were affirmed by this Court on direct appeal. Romero v. State, 169 So. 3d 1261 (Fla. 5th DCA 2015). ANALYSIS In determining whether trial counsel was constitutionally ineffective, a reviewing court must engage in a two-part analysis. First, the reviewing court must determine whether counsel’s performance was so deficient tha…
  • Brown v. State, 205 So. 3d 884 (Fla. 5th DCA 2016)
    …transcript.” Appellant claims that her counsel was ineffective by failing to object to the court’s response, and by failing to request that the judge inform the jury that the court reporter could read back the desired testimony. See Romero v. State, 169 So. 3d 1261, 1263 (Fla. 5th DCA 2015) (holding that a challenge to the trial court’s refusal to consider a read-back of testimony must be preserved by objection). In ruling on the rule 3.850 motion, the postconviction court did not address this second ground on…
  • Sigfredo Garcia v. State (Fla. 1st DCA 2021)

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