Bradley v. StateBradley v. State
Stephen Bradley appeals his conviction and sentence for burglary with a battery, petit theft and battery.
The first question presented is whether the attorneys for the state and defense were given notice during deliberation of the jury‘s request to review evidence as required by
In Ivory v. State, 351 So.2d 26 (Fla. 1977), the supreme court stated:
It is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant and defendant‘s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury‘s request.
Id. at 28. In Curtis v. State, 480 So.2d 1277 (Fla. 1985), the supreme court reaffirmed the viability of Ivory and stated:
Any communication with the jury outside the presence of the prosecutor, the defendant and defendant‘s counsel is so fraught with potential prejudice that it cannot be considered harmless.
However, in Meek v. State, 487 So.2d 1058 (Fla. 1986), the Florida Supreme Court recently held that it was not error under Ivory or
There is no contention here that the court‘s answer was legally incorrect, only that such a statement to the jury in the absence of defendant or his attorney is per se reversible. Based on the record before us, it is unclear whether defense counsel was notified or present when the jury submitted the question about the police report; however, it is clear that the communication here is not covered by
The decision in Curtis is readily distinguishable. That case did not merely involve the trial court‘s refusal to answer a jury inquiry as to whether a police report was in evidence. The jury questions and the court‘s response thereto were much broader, as follows:
Q. Jury wishes to know if there is a record of plaintiff shouting into the phone, `he‘s going to stab me.’
Q. Can we accept that statement as evidence?
On the same sheet of paper, filed in open court and made part of the record, the trial judge responded:
A. Members of the jury: Your decision in this case will have to be based solely on the evidence presented in the trial itself — This evidence consists of the testimony of the witnesses and the photographs only. As to the testimony, you will have to consider all of it and you may accept or reject all or part of any witness’ statement depending upon its credibility or lack of credibility when considered or compared with all of the other evidence.
The request in Curtis, unlike the request in the instant case, did involve the testimony given during the trial and did request an instruction on applicable law regarding that testimony and, thus, unlike the instant case, falls within the ambit of
The second question presented is whether valid reasons were given to support a sentencing guidelines departure. The state concedes that the reasons for departure, which considered appellant‘s criminal record and the instant offenses, were improper under Hendrix v. State, 475 So.2d 1218 (Fla. 1985). We find the trial court erred by not providing clear and convincing reasons for departure. We affirm the conviction but remand for resentencing.
AFFIRMED in part; REVERSED and REMANDED in part.
COBB, J., concurs.
SHARP, J., dissents with opinion.
SHARP, Judge, dissenting.
The decisive issue in this case is whether it should be reversed for a new trial because
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.
The record shows that while the jury was deliberating in this case, it sent to the judge the following question, “[c]an we read the original police report?” The court minutes reflect that the jury retired for deliberations at 12:24 p.m. The next entry shows the court‘s receipt of the jury‘s written question. Apparently neither the state, defense counsel nor the defendant were notified about the question; nor was a response made in their presence in open court. The judge replied by appending to the bottom of the paper on which the question was written: “No. The police report is not in evidence. You have to consider only the matters in evidence.”
[I]t is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant and defendant‘s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury‘s request.
Id. at 28. In Curtis v. State, 480 So.2d 1277 (Fla. 1985), and Williams v. State, 488 So.2d 62 (Fla. 1986), the supreme court reaffirmed the viability of Ivory.
However, in Meek v. State, 487 So.2d 1058 (Fla. 1986), the supreme court held that it was not error under Ivory or
The primary issue in this case is whether or not the jury‘s inquiry and the judge‘s response were within the scope of
However, if the question asked by the jury relates to the evidence in the case, or a question of law which they must apply, then
In Curtis the supreme court explained:
The “response” contemplated by Ivory vis-a-vis “instructions,” encompasses more than merely rereading some or all of the original instructions, or the giving of additional instructions from the Florida Standard Jury Instructions (Criminal). The procedural mandates of rule 3.410 apply when any additional instructions are requested.
“Additional instructions” are defined thusly: “If during the course of deliberations the jury is unclear about a particular point of law or aspect of the evidence it may request the court for additional or supplementary instructions.” Black‘s Law Dictionary 769 (rev. 5th ed. 1979). A “jury instruction” is a “direction given by the judge to the jury concerning the law of the case.” Id. Obviously, the trial judge‘s response in this case was an “instruction,” a “direction ... concerning the law of the case” in response to a question about an “aspect of the evidence” — in short, the trial judge gave additional instructions to the jury without complying with rule 3.410.
* * * * * *
... As the written response in this case demonstrates, even a refusal to answer
questions (emphasis added) frequently will require something more than a simple “no,” and both the state and the defendant must have the opportunity to participate, regardless of the subject matter of the jury‘s inquiry. Without this process, preserved in the record, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial. (Emphasis in original).
Because I would reverse this case for new trial, I do not reach the other issues presented which deal with the propriety of the reasons given by the trial court to support a “departure”2 sentence under the guidelines. I note, however, that the state concedes the reasons for departure, which considered Bradley‘s criminal record and the instant offenses, were improper under Hendrix v. State, 475 So.2d 1218 (Fla. 1985).