ISIAIH NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isiaih Neal was convicted of manslaughter after a jury trial on a second-degree murder charge. He appealed arguing that the trial court violated Coney v. State by allowing jury challenges at a sidebar conference outside his immediate presence. The court affirmed, finding no error in the record and that the issue was not preserved for appeal.
The court affirmed the conviction because no error appears in the record indicating Neal was absent from the bench conference, and in any event, the issue was not preserved for review on direct appeal because no objection was made at trial.
[1] A defendant's right to be present during jury selection, including the exercise of challenges, must be affirmatively demonstrated by the record; a silent record is insuff…
[2] Failure to obtain a defendant's waiver for bench conferences during jury selection cannot be raised on direct appeal unless an objection was made at trial.
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Join FLexlaw to unlock all legal intelligence“An appellant bears the burden to establish the existence of reversible error.”
Establishes the burden on Neal to show error in the record
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Join FLexlaw to unlock all legal intelligenceNeal was tried for second-degree murder and the jury convicted him of manslaughter instead. During jury selection, after voir dire, the judge directed…
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NORTHCUTT, Judge.
Isiaih Neal was tried before a jury on a charge of second degree murder. The jury found him guilty of manslaughter. Neal challenges his conviction on the sole ground that the trial court allowed counsel to exercise challenges to prospective jurors at a bench conference outside Neal’s immediate presence, in violation of the rule announced in Coney v. State, 653 So. 2d 1009, 1013 (Fla.), cert. denied, — U.S.-, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). We affirm because no such error appears in the record, and, in any event, this issue was not preserved for review on direct appeal.
Neal was present in the courtroom during jury selection. After voir dire, the judge asked counsel to take a few minutes to consider their selections and then approach the sidebar. The record does not disclose whether Neal attended the sidebar conference. It does reflect that the judge did not inquire whether Neal waived his right to be present at the bench during the juror challenges, and that neither Neal nor defense counsel made any objections in this regard.
An appellant bears the burden to establish the existence of reversible error. E.g., Moore v. State, 504 So. 2d 1311 (Fla. 1st DCA) (claim that reversible error occurred because defense counsel was not present when trial court responded to jury question was mere speculation because the record was silent on the issue), review denied, 513 So. 2d 1062 (Fla.1987). Here, the record fails to reflect that Neal was not immediately present during the juror challenges; to the contrary, the judge’s failure to make a waiver inquiry and the failure of the defense to object on that ground are consistent with the possibility that Neal actually was at the bench conference. Because no error appears in the record, we must affirm. See Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996) (Criminal Division en banc), decision approved on other grounds, 688 So. 2d 334 (Fla. 1997).
Beyond that, even if a Coney error had appeared in this record, it was not preserved for review. This court recently has held that the failure to obtain a Coney waiver cannot be raised on direct appeal unless an objection on that ground was made at trial. Lee v. State, 695 So. 2d 1314 (Fla. 2d DCA 1997). Instead, it is. more appropriate to allege such an error in a motion for postcon-vietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We acknowledge that we are in conflict with decisions of other districts holding that Coney errors are fundamental. See, Butler v. State, 676 So. 2d 1034 (Fla. 1st DCA 1996); Wilson v. State, 680 So. 2d 592; Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996), review granted, 694 So. 2d 739 (Fla.1997).
Affirmed.
DANAHY, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Darden v. State, 705 So. 2d 99 (Fla. 5th DCA 1998)…serted by Judge Altenbernd in his concurring opinion in Hill v. State, 696 So. 2d 798 (Fla. 2d DCA 1997), affirmed, 700 So. 2d 646 (Fla.1997). See, Lee v. State, 695 So. 2d 1314 (Fla. 2d DCA 1997), rev. granted, 697 So. 2d 942 (1997); Neal v. State, 697 So. 2d 941 (Fla. 2d DCA), rev. granted, 701 So. 2d 868 (Fla.1997). The second district has declared that a Coney error cannot be raised on direct appeal without an objection having been made on the same grounds at trial. The decision in Anderson aligned this c…
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Steinard v. State, 711 So. 2d 105 (Fla. 2d DCA 1998)…efore the effective date of the change to rule 3.180(b). Nevertheless, this court has consistently held that the failure to obtain a Coney waiver cannot be raised on direct appeal without a contemporaneous objection made at trial. See Neal v. State, 697 So. 2d 941 (Fla. 2d DCA), review granted, 701 So. 2d 868 (Fla.1997); Lee v. State, 695 So. 2d 1314 (Fla. 2d DCA), review granted, 700 So. 2d 686 (Fla. 1997). Because the record reveals no contemporaneous objection by Steinard on this issue, we affirm. Steina…
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Isiaih Neal v. State, 713 So. 2d 1002 (Fla. 1998)…SHAW, Justice. We have for review Neal v. State, 697 So. 2d 941 (Fla. 2d DCA 1997), based on conflict with Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996), quashed, 713 So. 2d 1005 (Fla.1998). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Neal as explained below. Isiaih Neal…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996)
- Wilson v. State, 680 So. 2d 592 (Fla. 3d DCA 1996)
- LEE v. State, 695 So. 2d 1314 (Fla. 2d DCA 1997)
- Brown v. State, 676 So. 2d 1034 (Fla. 1st DCA 1996)
- Rickie Renoried Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996)
- Moore v. State, 504 So. 2d 1311 (Fla. 1st DCA 1987)
- Rickie Renoried Mathis v. State, 688 So. 2d 334 (Fla. 1997)