JAMES HENRY THOMAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a bailiff improperly instructing a deadlocked jury constitutes reversible error, even if the judge later gives a proper instruction.
[1] A bailiff providing a legal instruction to a jury during deliberations constitutes reversible error, as only the court is authorized to instruct the jury on the law.
[2] Communication between a bailiff and a jury regarding legal matters during deliberations is improper, regardless of the correctness of the bailiff's statement.
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Join FLexlaw to unlock all legal intelligenceThe bailiff told a deadlocked jury that they must reach a unanimous verdict. The trial judge then gave an Allen charge, and the jury returned guilty v…
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HAVERFIELD, Judge.
Defendant, James Henry Thomas, appeals his convictions for burglary and grand larceny, and for his sole point on appeal argues that the trial court erred in failing to grant his motion for mistrial after the bailiff gave the jury a legal instruction during its deliberation. We find this point has merit.
Before the jury’s verdict was announced, the trial judge informed counsel that during the jury’s deliberations the foreman had advised the bailiff that the jury was deadlocked 5-1, and the bailiff responded that the jury had to reach a unanimous verdict. Defense counsel thereupon made a motion for mistrial which was denied. The trial judge then gave the jurors the “Allen charge” over objection of the defense and the jury retired to deliberate. Shortly thereafter verdicts of guilty were returned.
The instruction given to the jurors by the bailiff, which was legally incorrect, is in clear violation of Section 918.07, Florida Statutes (1975). Further, this court has held in Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960) that such communication between a bailiff and the jurors constitutes reversible error regardless of whether the bailiff’s answer is legally correct or not since the court alone is entitled to instruct the jury on the law and must do so in the presence of the jury. See also Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970); Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976), and Fla.R.Crim.P. 3.410.
While counsel for the State concedes that the above communication constituted error, he contends that such error was cured upon the trial judge rendering the Allen charge to the jurors and directing them to further deliberate before they had announced their original verdict. We conclude to the contrary.
It is well established that nothing must be said or done by the trial court to embarrass or coerce an unconvinced juror or jurors to agree with the verdict or the majority simply because he or she is in the minority. Jones v. State, 92 So. 2d 261 (Fla. 1957). Under the circumstances in the case sub judice, the rendering of the Allen charge may have well deprived the defendant of a “hung jury” for, as the court stated in Bell v. State, 311 So. 2d 179, 181 (Fla. 1st DCA 1975): “An impediment to the exercise by a juror of a free and independent judgment is inconsistent with the mandate of Article I, Section 16, Constitution of the State of Florida, that the verdict of the jury must be impartial.”
The convictions of the defendant are reversed and the cause remanded to the trial court for a new trial.
Reversed and remanded.
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Boris McKINNEY v. State, 579 So. 2d 80 (Fla. 1991)…harge of jurors “shall not communicate with the jurors on any subject connected with the trial.” The bailiff’s remark to the jury concerning premeditated murder falls within this prohibition and clearly constitutes error. See, e.g., Thomas v. State, 348 So. 2d 634 (Fla. 3d DCA 1977); Ennis v. State, 300 So. 2d 325 (Fla. 1st DCA 1974). This error requires a reversal of the conviction and a new trial if the error prejudiced the defendant such that his substantive rights were violated. See Ennis, 300 So. 2d at 3…
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Thomas v. State, 370 So. 2d 1218 (Fla. 3d DCA 1979)…eal by this defendant, who was found guilty of burglary and grand larceny by a jury, adjudged guilty and sentenced, this court reversed the conviction upon a holding of error when the bailiff gave legal instructions to the jury. See Thomas v. State, 348 So. 2d 634 (Fla. 3d DCA 1977).…
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Hayes v. State, 778 So. 2d 400 (Fla. 3d DCA 2001)…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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 92 So. 2d 261 (Fla. 1956)
- Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)
- Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970)
- Ernie Lee Bell v. State, 311 So. 2d 179 (Fla. 1st DCA 1975)
- Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976)