RAYL KELLAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's failure to certify on the record that the defendant knowingly and voluntarily waived his presence at bench conferences during jury selection, or that he ratified his attorney's peremptory strikes, constituted a technical error that was harmless beyond a reasonable doubt.
[1] A trial court's failure to formally establish on the record that a defendant knowingly and intelligently waived his presence at bench conferences during jury selection is…
[2] A defendant's technical error in not being present at bench conferences during jury selection is harmless when the record reflects the defendant had the opportunity to pa…
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Join FLexlaw to unlock all legal intelligenceDuring jury selection, the defendant, Rayl Kellar, was not present at bench conferences where peremptory jury challenges were exercised, despite his a…
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MINER, Judge.
Raising several issues, Rayl Kellar1 challenges his convictions for kidnapping, sexual battery while armed and attempted first degree murder. We affirm appellant’s convictions and sentences in all respects and write only to address the single point he raises which we believe warrants discussion.
Kellar asserts that the trial court committed fundamental, reversible error by not establishing on the record by proper inquiry that appellant knowingly and intelligently waived his presence at the bench during the exercise of peremptory jury challenges or acquiesced in his attorney’s use of such challenges on the record. Under the facts of this case, we find this argument unavailing.
The record on appeal reflects that jury selection at appellant’s trial took place on August 21, 1995. Twelve potential jurors were called to the jury box and questioning by the court and counsel commenced. After questioning of these prospective jurors concluded, the following transpired:
THE COURT: Thank you. We’ll be at ease for a few moments while counsel confers and then, when ready, they will approach the bench.
The record then reflects that appellant and his attorney conferred after which the prosecutor, defense attorney and the appellant walked to the bench. The recorded bench conference proceeded:
THE COURT: The record will reflect that all are at the bench including the defendant.
DEFENSE COUNSEL: Right, your hon-or, and if I could just note this. I discussed very thoroughly with [appellant] his right to be here at this bench conference pursuant to recent case law. But we feel strategically that we would prefer not to do that. So I simply want you to know that we didn’t want to sandbag anybody. He and I discussed it, and he and I both agree that he is not going to be standing up here during these bench conferences. He is waiving that right. If he changes his mind, he can come up at any time. But we just think strategically it would look better if he didn’t.
THE COURT: Very well.
DEFENSE COUNSEL: O.K.
THE COURT: [To defendant] Be seated. (The defendant returns to the conference table and the bench conference continues outside his presence ... ) (Bench conference concludes.)
After this bench conference during which seven peremptory strikes were used, seven more prospective jurors were called and questioning of these persons commenced. After this questioning concluded, the record reflects that appellant and his counsel conferred and another bench conference was held. Consistent with his attorney’s earlier representation, appellant did not avail himself of his right to be present at the bench. At this conference, the jury was selected. Thereafter, the court and counsel apparently concluded that an alternate juror might be required so two additional members of the jury pool were called to the box. After these persons were questioned, another bench conference was held and an alternate juror selected.2 Once again, appellant chose to remain seated at counsel table. The jury was sworn and the case proceeded to trial the following day. Kellar was convicted as charged and this appeal followed.
Notwithstanding defense trial counsel’s assurance that there was no intent to “sandbag” the court or the State, the defendant’s physical absence from the two bench conferences that followed his attorney’s representation to the court forms the primary basis for the instant appeal.
It is true that the trial court did not certify on the record that the defendant was waiving his presence during these conferences knowingly and voluntarily nor did the trial court certify on the record that Kellar approved of the peremptory strikes made by his counsel.
Thus, he argues that Coney v. State, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), mandates reversal for a new trial. We disagree.
Coney held that such an error as complained of here is subject to a harmless error analysis. Following the dictates of Coney, in one of the leading cases decided by this court on the point, we held that since the record therein reflected that appellant had the opportunity to “participate in a meaningful way in the decisions regarding the exercise of peremptory challenges,” the “technical error” committed by the trial court, ie. failure to certify on the record that defendant’s physical absence from the immediate site where challenges were exercised was knowing and voluntary or to certify of record that appellant ratified his attorney’s exercise of challenges, was harmless. Mejia v. State, 675 So. 2d 996, 1000, 1001 (Fla. 1st DCA 1996). Although the State does not argue harmless error in the instant case, sua sponte we have reviewed the record on appeal and are satisfied beyond a reasonable doubt that this “technical error” by the trial court did not in anywise prejudice appellant or affect the outcome of the case below. See Heuss v. State, 687 So. 2d 823 (Fla.1996); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Accordingly, appellant’s convictions and sentences are herewith affirmed.
WEBSTER and MICKLE, JJ., concur. . In that portion of the record on appeal relating to jury selection, Rayl Kellar is also referred to on occasion as Ryal Kellar. In a pro se pleading of record, appellant signed his name, Rayl Kel-lar. . The record does not reflect that the alternate juror participated in jury deliberations.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smiley v. State, 704 So. 2d 191 (Fla. 1st DCA 1997)…ect, the appellant invited this first error now claimed on appeal. We find, at most, nothing more than harmless technical error in the failure to make further inquiry during the jury selection proceedings. Smiley was not prejudiced. Kellar v. State, 690 So. 2d 630, 631 (Fla. 1st DCA), rev. den., 697 So. 2d 511 [*194] (Fla.1997); Golden v. State, 688 So. 2d 419 (Fla. 1st DCA) (granting mot. for clarif.), rev. den., 698 So. 2d 543 (Fla.1997); Williams v. State, 687 So. 2d 858 (Fla. 3d DCA) (trial court’s failur…
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Garcia v. State, 694 So. 2d 815 (Fla. 4th DCA 1997)…cal deficiency on the part of the trial judge in complying with all of Caney’s requirements resulted in any prejudice. Accordingly, any error did not adversely impact upon appellant’s right to a fair trial and was harmless. See also Kellar v. State, 690 So. 2d 630 (Fla. 1st DCA 1997); Golden v. State, 688 So. 2d 419 (Fla. 1st DCA 1997)(on rehearing); Williams v. State, 687 So. 2d 868 (Fla. 3d DCA 1997). It is our view that the decision in this ease brings us to the outer limits of sustainable noncompliance w…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Heuss v. State, 687 So. 2d 823 (Fla. 1996)
- Mejia v. State, 675 So. 2d 996 (Fla. 1st DCA 1996)