ZEBEDEE MCNICHOLS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Zebedee McNichols was convicted of second-degree murder and sentenced to life imprisonment after a jury trial where he raised an insanity defense. The Florida appellate court reversed and remanded for a new trial because the trial judge improperly denied the jury's request to hear expert testimony read back without the defendant or his counsel present.
The trial court committed reversible error in denying the jury's request without the defendant and his counsel present and having an opportunity to be heard. The law established in Slinsky v. State governs, and the cited cases of Nelson v. State and Bates v. State are distinguishable and not controlling.
[1] A trial court commits reversible error by summarily denying a jury's request for the reading of testimony without the defendant or their counsel being present.
[2] A trial court's denial of a jury's request for testimony, made outside the presence of the defendant and their counsel, is not harmless error when the defendant's primary…
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Join FLexlaw to unlock all legal intelligence“the jury, " . . . would [have to] recollect the testimony as best they could from what they had heard."”
Establishes that the trial judge denied the jury's request to have testimony read back and instructed them to rely on memory instead.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring jury deliberations in a murder trial, the jury foreman requested that the bailiff have Dr. Keedy's (a defense witness) testimony read back to t…
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Pursuant to a jury verdict, the appellant, Zebedee McNichols, was found guilty of murder in the second degree and sentenced to life imprisonment. The principal defense advanced by the defendant was not guilty by reason of insanity.
A jury trial was commenced on October 1, 1973 and on October 8, 1973, the jury retired to consider a verdict. While the jury was deliberating the foreman asked the bailiff for the reading of the testimony of Dr. Keedy, a defense witness. The bailiff went to the judge who was in the courtroom at the time and apprised him of the juror’s request. At the time, the court was not in session and neither the defendant nor his counsel was in the courtroom. The bailiff was informed by the judge that the testimony was not available and that the jury, “ . . . would [have to] recollect the testimony as best they could from what they had heard.” The bailiff then returned to the jurors and informed them that the court had denied their request.
Appellant’s motion for new trial raised the point which is the basis of this appeal, that is, whether the trial court committed reversible error in summarily denying the jury’s request without defendant or his counsel being present. The trial court took extensive testimony and, apparently upon a determination that the error was harmless, denied the motion for new trial. This appeal followed. We reverse upon a holding that the law as established in Slinsky v. State, Fla.App. 1970, 232 So. 2d 451, is governing here.
Because the facts in this case so nearly parallel those recited by the court in Slin-sky v. State, we think that it is not necessary to discuss further the law of the case. The State has in effect admitted that error occurred but urges that it is harmless error basing its position upon the holding of the Supreme Court of Florida in Nelson v. State, 148 Fla. 338, 4 So. 2d 375 (1941), and the holding of the Court of Appeal, Second District, in Bates v. State, Fla. App.1958, 102 So. 2d 826. We conclude that the holding in Nelson v. State, supra, considers a prior applicable statute but does not show that the determination of the trial judge was reached without the presence of the defendant or his attorney and an opportunity for the defendant to be heard. The second cited opinion of Bates v. State, supra, shows that the request for the reading of testimony which was refused was for practically all of the testimony taken and the denial was made in open court in the presence of the defendant and his attorney. We therefore find that neither of the cited cases are controlling.
Whereupon, the judgment and sentence are reversed and the cause is remanded for a new trial.
Reversed and remanded.
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Citator
Cited By
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Donnie Lee Ivory v. State, 351 So. 2d 26 (Fla. 1977)…right to make full argument as to the reasons the jury’s request should or should not be honored. Most Florida authority is in accord. Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960), cert. den., 125 So. 2d 877 (Fla.1960); McNichols v. State, 296 So. 2d 530 (Fla. 3d DCA 1974), cert. den., 303 So. 2d 645 (Fla. 1974). The First District Court of Appeal is contra. See Kimmons v. State, 178 So. 2d 608 (Fla. 1st DCA 1965), cert. discharged, 190 So. 2d 308 (Fla.1966), cert. den., 387 U.S. 934, 87 S.Ct. 2057,…
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Williams v. State, 488 So. 2d 62 (Fla. 1986)…eversible; it stands for the proposition that such errors should be analyzed using harmless error principles. In Ivory, we also cited Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA), cert. denied, 125 So. 2d 877 (Fla.1960), and McNichols v. State, 296 So. 2d 530 (Fla. 3d DCA), cert. denied, 303 So. 2d 645 (Fla.1974), as being in accord. Neither case stands for the proposition cited in Ivory. In Holzapfel, the court held that it was error to communicate with the jury outside the presence of defendant and cou…
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State v. Hunter, 358 So. 2d 50 (Fla. 4th DCA 1978)…ipitated by a specific request of the jury and resulted in either a granting of such request or the denial of same in the absence of the prosecutor and the defendant or his counsel. Slinsky, supra; Ivory, supra; Holzapfel, supra; McNichols v. State, 296 So. 2d 530 (Fla. 3d DCA 1974). In each of these cases it is held that the jury cannot receive any information, or be summarily denied information, in the absence of the defendant or his counsel. The determination of what must be done in response to a jury inqu…
Authorities Cited
- Nelson v. State, 148 Fla. 338 (Fla. 1941)
- Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970)
- Bates v. State, 102 So. 2d 826 (Fla. 2d DCA 1958)