Diaz v. StateDiaz v. State
Appellant was charged in a three count information with burglary, sexual battery, and robbery. At the close оf trial, the jury began its deliberations, and after approximately three hours reported a deadlock. Defense counsel was absent from the courthouse and the trial court conferred with him by telephone. Pursuant to counsel‘s consent and a waiver of his presence, the trial court gave the jury an Allen charge in defendant‘s presence but with his lawyer absent. The court added to the standard charge by telling the jurors that they should think and reflect abоut the case overnight in their own home surroundings. On discharging the jury for the evening, the court did not admonish the jurors concerning avoiding outside influences. That evening a Fort Lauderdale newspaper published an article prejudicial tо appellant where he was described as a known rapist involved in other crimes. The following morning, the jury reconvened and in less than an hour found appellant guilty of all three charges. Defense counsel filed a motion to interview jurors as to whether they had been exposed to the article and to determine whether a legal grоund existed to challenge the verdicts. The trial court denied this motion. Appellant was sentenced to life imprisоnment plus thirty years for the three crimes.
Appellant raises four points on appeal, three of which merit disсussion. In one point, appellant contends that fundamental error occurred during the trial when proceedings were conducted in front of the jury in the absence of defense counsel when there was no waiver or ratifiсation by appellant of the absence of his counsel during a critical stage of the trial court proсeedings. Appellant is referring to his counsel‘s absence when the trial court gave the jury the Allen charge. Appellant argues the trial court breached its duty to protect appellant‘s right to counsel by allowing counsel to waive his presence. Although we find defense counsel‘s conduct to be outrageous, we refuse to lay thе blame at the foot of the trial court. Counsel represented appellant; it was his duty to protect appellant‘s right to counsel. Although we choose not to reverse on this point, we note that appellant hаs yet to assert a 3.850 claim for ineffective assistance of counsel.
We now address two interrelated pоints raised by appellant. Initially, appellant contends that the trial court erred in permitting the jury to separаte for an overnight recess of sixteen hours after deliberations had begun without admonishing the jury to avoid any outside influences. Next, appellant urges error in the denial of his motion to interview the jurors to determine whether the verdict was subject to legal challenge because of the prejudicial newspaper article that appeared on the evening of the recess. Appellant relies on Raines v. State, 65 So.2d 558 (Fla. 1953). In that case, the trial court sent the jury hоme for fifteen hours in the midst of their deliberations without the consent of counsel, without any instructions, and without the protеction of a bailiff. The Supreme Court found this to be error even though no objection was made and no prejudiсe was shown because “It imposes too great a burden on defendant to produce evidence of рrejudice to his rights under such circumstances.” At 560. The state attempts to distinguish this case, pointing out that there was no mentiоn of the jury being admonished at any time during the trial. In the present case, the jury was admonished on outside influences earlier during the two-day trial. It
REMANDED FOR FURTHER PROCEEDINGS.
DOWNEY and HERSEY, JJ., concur.