Farrow v. StateFarrow v. State
The issue presented by this appeal is whether or not a judge‘s instruction to the jury panel on voir dire that the jurors would have to pay attention because the judge wоuld not permit a readback of testimony was fundamental error compelling the reversal of appellant‘s conviction and sentence. We hold that it is not and thereby recede from both Hendrickson v. State, 556 So.2d 440 (Fla. 4th DCA 1990) and George v. State, 548 So.2d 867 (Fla. 4th DCA 1989).
During his preliminary instruction to the venire, the trial court stated:
Number five, with respeсt to the testimony of the witnesses you‘re going to have to listen very carefully to the testimony of the witnesses because you‘re only going tо hear it once. The court stenographer is not going to be reading back to you the testimony of the witnesses. So you have to listen very carefully and attentively to what the witnesses are saying.
No objection was made to this instruction. Jury selection proceeded, аnd a jury was sworn. The trial lasted two days. The trial judge did not repeat the above instruction during the closing instructions. There was no evidence of jury confusion over anything but some of the definitions in the jury instructions which the court reread. A verdict was rendered against appellant.
In George v. State and Hendrickson v. State, this court found similar preliminary instructions by the same trial judge to be fundamental reversible error, relying on Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987), and Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987)1. In Huhn
Fundamental error, which may be raised for the first time on appeal, is defined as error going to the foundation of the сase or the merits of the cause of action. Ray v. State, 403 So.2d 956 (Fla. 1981), quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970). This is a limited exception to the rule requiring contemporaneous objection to preserve the issue for appeal and should be applied only in rare instances where jurisdictional error appеars or where the interests of justice compel its application. Ray, 403 So.2d at 960.
Generally, errors committed in the trial process are nоt deemed to be fundamental. See e.g. Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974), cert. denied, 294 So.2d 91, and cases cited at 3 Fla.Jur.2d Appellate Review § 301. The giving or failing to give particular jury instructions is not fundamental error but requires the assertion of a timely objection unless the error amounts to a denial of due process of law. Smith v. State, 521 So.2d 106 (Fla. 1988); Castor v. State, 365 So.2d 701 (Fla. 1981). In Castor the supreme court stated:
The requirement of a contemporaneous objection is based in practical necessity and basic fairness on the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early state of the proceedings.
Castor at 703.
Under the standards of the foregoing cases the judge‘s instruction to the jury panel at the commencement of appellant‘s trial did not constitute fundamental error. While the instruction was error, as it was in contrаvention of
Finding no other reversible error we affirm the appellant‘s conviction and sentence.
HERSEY, C.J., and DOWNEY, ANSTEAD, LETTS, GLICKSTEIN, DELL, WALDEN, STONE and POLEN, JJ., concur.
GARRETT, J., dissents with opinion in which GUNTHER, J., concurs.
GARRETT, Judge, dissenting.
I respectfully dissent.
After the jurors have retired to consider their verdict, if they request additionаl instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge аnd 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 failure to reread testimony requested by a jury hаs been held to be fundamental error. LaMonte v. State, 145 So.2d 889 (Fla. 2d DCA 1962).
Jury deliberations are an intricate, sacrosanct and fragile part of our judicial system. One should never underestimate the collective power of a jury to resolve factual disputes. We strive to protect the proсess from outside influence. But, what a judge says to a jury greatly impacts on them. A black robed judge who presides from an elevated benсh amid formal judicial protocol is an imposing figure to any group of lay people.
I believe that the disputed instruction penetrated the sanctity of the jury room and intimidated the jury. The jurors got the message as to how the judge wanted them to conduct their deliberatiоns. When a juror cannot request the reading of testimony it prevents a complete airing of the merits of the case and strikes at the vеry foundation of a jury trial.
The majority holds that a defense objection would have given the trial judge the opportunity to tell the jury to disregard the instruction and thereby cure the error. But had the judge done so, would the following unspoken message have remained, “I am the judge, do whаt I want, not what the lawyer made me say!“? The closed doors of the jury room prevent us from learning the answer.
The instruction, no matter when given, unnecessarily violated a fundamental part of every American jury trial, the jury deliberation process, and should be deemed revеrsible error with or without objection.