RAWLEIGH FLOWERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rawleigh Flowers was convicted after a trial, but the trial court responded to a jury question without notice to the defendant or his counsel, in violation of Florida Criminal Procedure Rule 3.410. The appellate court reversed and remanded for a new trial because the error could not be deemed harmless.
The trial court erred in responding to the jury's question without notice to the defendant and his counsel. Such ex parte communications with the jury are prohibited by Rule 3.410, which requires that any jury requests and judicial responses be made in open court with notice to both the prosecution and defense counsel. The error cannot be deemed harmless because there is no complete record of what the jury was actually told.
[1] A trial court commits per se reversible error by responding to a jury's request for additional instructions without first providing counsel an opportunity to offer propos…
[2] Florida Rule of Criminal Procedure 3.410 requires notice to the prosecuting attorney and defense counsel before a court gives additional jury instructions or reads testim…
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Join FLexlaw to unlock all legal intelligence“Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.”
Establishes the mandatory procedural requirement that jury communications must include notice to both prosecution and defense counsel.
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations, the jury submitted a question to the trial judge asking what conclusions could be drawn from the defendant's handwriting in…
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[*603] ANSTEAD, Judge.
The appellant, Rawleigh Flowers, seeks a new trial on the grounds that the trial court erred in responding to a question from the jury without prior notice to Flowers or his counsel. We reverse.
Upon reconvening court to receive the verdict of the jury but prior to the jury returning to the courtroom, the trial judge announced to the parties:
THE COURT: Before the jury comes in, they sent me a question when you all weren’t around. The question was, “What, if any, conclusions were drawn from the defendant’s writing of his name, or the name ‘Ellis Powers,’ re: Handwriting analysis?”
I told Mr. Callahan to tell them they had to rely upon the evidence at the trial, and to rely upon that evidence.
MR. ROSEN: For the record, they should have been advised of that part of the instruction where you talk about the evidence, the lack of evidence.
THE COURT: I told them to rely upon the evidence as rendered in the case, because I was not going to get into that. I gave you the question, so you can make an objection to it for the record, if you so desire.
MR. ROSEN: I would object to them not having been advised they could be concerned with the lack of evidence.
THE COURT: If you had no objection, I would have been disappointed. Would you like to object?
MR. COHN: No, sir. THE COURT: Objection overruled.
Immediately thereafter the jury returned its verdict against Flowers.
Rule 3.410 of the Rules of Criminal Procedure provides:
JURY REQUEST TO REVIEW EVIDENCE OR FOR ADDITIONAL INSTRUCTIONS
After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
This rule prohibits communications between the trial judge and the jury such as took place herein.1 The parties, through their counsel, have the right to be advised of any questions raised by the jury and any proposed responses to said questions. All of these proceedings should take place in open court and be of record so that no question may be raised as to the integrity of the jury system. The only record of the question posed by the jury in this case and the trial court’s response is the statement of the court quoted above. That statement itself tends to indicate that a Mr. Callahan, presumably the bailiff, actually relayed the judge’s instructions to the jury. There is no record of what the jurors were told. Under these circumstances we cannot conclude that the error was harmless.
Accordingly, the judgment is hereby reversed, and the cause is remanded for a new trial.
MAGER, C. J., and ALDERMAN, J., concur. . Caldwell v. State, 340 So. 2d 490 (Fla. 1st DCA 1976); Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970); Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960).
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Citator
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Crews v. State, 442 So. 2d 432 (Fla. 5th DCA 1983)…hem. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant. Fla.R.Crim.P. 3.410. . See generally Davis v. State, 408 So. 2d 795 (Fla. 2d DCA 1982); Flowers v. State, 348 So. 2d 602 (Fla. 4th DCA 1977); Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970). . Walt Disney World Co. v. Althouse, 427 So. 2d 1135 (Fla. 5th DCA 1983); Ennis v. State, 300 So. 2d 325 (Fla. 1st DCA…
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Curtis v. State, 455 So. 2d 1090 (Fla. 5th DCA 1984)…re there is abundant evidence, although disputed, upon which the jury’s verdict could be based and there is no prejudice shown. See also State v. Prieto, 439 So. 2d 288 (Fla. 3d DCA 1983) [8 FLW 2387] (Ferguson, J., concurring). Cf Flowers v. State, 348 So. 2d 602 (Fla. 4th DCA 1977) [where there was no record of what the judge told the jury in response to their question], AFFIRMED. FRANK D. UPCHURCH, Jr., J., concurs. SHARP, J., dissents with opinion. . Contrary to the assertion in the dissenting opinion…1 / 2
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State v. Colbert, 522 So. 2d 436 (Fla. 2d DCA 1988)…attorneys of her intention to give the modified instruction. This was error because the parties, through their counsel, have the right to be advised of any questions raised by the jury and any proposed responses to said questions. Flowers v. State, 348 So. 2d 602 (Fla. 4th DCA 1977). See also, Ivory. I could agree with the majority that the final part of the modified instruction in which the judge gave the jury the option of continuing its deliberations without having the requested testimony read to it was…
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
- Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)
- Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970)
- Caldwell v. State, 340 So. 2d 490 (Fla. 2d DCA 1976)