Joaquin J. MARTINEZ, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
*1076 Peter Raben of the Law Offices of Peter Raben, P.A., Miami, Florida, for Appellant.
Robert A. Butterworth, Attorney General, and Candace M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee.
Sharon L. Kegerreis and Mayda Prego of Hughes Hubbard & Reed, LLP, Miami, Florida, for Ilustre Colegio De Abogados De Madrid ("Madrid Bar Association"), Amicus Curiae.
PER CURIAM.
Joaquin J. Martinez appeals his convictions of armed burglary, two counts of first-degree murder, and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
FACTS
Martinez was charged with armed burglary and two counts of premeditated murder for the killing of Douglas Lawson and Lawson's girlfriend Sherrie McCoy-Ward. The jury convicted Martinez of both murders and the trial court imposed a sentence of death for the murder of McCoy-Ward and a sentence of life imprisonment without the possibility of parole for the murder of Lawson.
*1077 The bodies of the victims were found in their home on October 31, 1995, by McCoy-Ward's sister, Tina Jones. Witness testimony at trial placed the murders as having occurred between the afternoon of October 27, 1995, and midnight on October 30, 1995.
Lawson died from gun-shot wounds and McCoy-Ward died from multiple stab wounds. Although the victims had been shot and stabbed, the police did not find any murder weapons at the scene. Forensic experts combed the residence, lifting latent fingerprints and collecting pieces of hair, clothing, fingernails, fiber samples and blood for examination. However, despite the collection of more than one hundred samples of blood, hair, fingernails, cigarette butts and similar physical evidence, no evidence linked Martinez to the murders.
The initial investigation revealed no signs of forced entry and no personal items appeared to be missing from the victims' residence. However, investigators found two Rottweiler dogs locked away in an upstairs bedroom, expensive music equipment and a substantial amount of hidden money in the house. At the conclusion of the crime scene investigation, police had no leads. Nonetheless, the police did find a list of names and telephone numbers on a piece of paper discovered in the kitchen. The police began telephoning the numbers listed, including a pager number listed by the name "Joe."
After leaving several messages on "Joe's" pager number, the police eventually received a call on January 27, 1996, from Sloane Martinez, the defendant's ex-wife. Sloane Martinez informed the police that she had kept Martinez's pager after their divorce. Detective Michael Conigliaro, the lead investigator on the case, then went to Sloane's home where she informed him of her growing suspicions of Martinez's involvement in the homicides. While the detective was at her home, Sloane received a phone call from Martinez and she invited the detective to listen in on their conversation. Detective Conigliaro testified that he heard Sloane telling Martinez that a homicide detective had been paging her. During that phone conversation, Detective Conigliaro also heard Martinez tell Sloane that "this is something that I explained to you before, and that I am going to get the death penalty for what I did." Sloane asked Martinez if the incident involved the Lawson case, and Martinez responded, "No, I can't talk to you about it on the phone right now."
After this conversation, Sloane agreed to allow authorities to wire her house for audio and video recording and to attempt to engage Martinez in conversation regarding the double homicides. The following day, January 28, 1996, Martinez arrived at Sloane's house. Detective Conigliaro testified that he, Corporal Baker, and Assistant State Attorney Karen Cox[1] watched and listened to the conversation from a remote location as it was being recorded by both audio and videotape. Although Martinez did not confess during the conversation with Sloane, he did make several remarks that could be interpreted as incriminating. After leaving Sloane's home, Martinez was immediately arrested by police.
The State's case at trial focused on the testimony of Sloane Martinez and the audio-video tape. Sloane testified concerning the above-described conversations as well as her observations of Martinez's behavior from October 27, 1995, until the time of his arrest. She also testified about other statements that Martinez made to her that heightened her suspicions regarding his involvement with the murders.
The State introduced other circumstantial evidence. For example, Laura Babcock, *1078 the defendant's ex-fiancee, testified. On Friday morning, October 27, 1995, Martinez left her apartment and told her that he was going to see his brother Ronnie, and that he planned to get in touch with a friend, "Michael," who owed him money. She also testified that when the defendant returned to her apartment between 11 p.m. and midnight, he was wearing clothing that did not fit him properly and he had a swollen lip and scraped knuckles.
In addition to this testimony, Eden Dominick, a friend of Babcock and Martinez, testified that Martinez arrived at her apartment around 8 p.m. on Friday, October 27. According to Dominick, Martinez appeared as if he had been in a fight. Before leaving, Martinez asked to leave a briefcase at Dominick's residence, but she refused his request.
Several jail inmates also testified against Martinez. One jail inmate, Neil Ebling, testified that Martinez admitted to committing the murders. Two other inmates, Larry Merritt and Gerrard Jones, testified about a scheme that Martinez designed in jail to implicate another individual for the crimes. Jones claimed that Martinez agreed to pay Jones $400 for assisting him with his case.
The defense called several witnesses to establish an alibi and to contradict the testimony of the jail inmates. However, defense counsel never filed a notice of an alibi defense or requested a jury instruction on an alibi defense.[2]
Martinez raises ten issues on appeal.[3] Because we find that error occurred when the prosecutor elicited testimony from Detective Conigliaro as to his opinion of Martinez's guilt, we discuss this point first.
OPINION OF GUILT TESTIMONY
The State called the lead investigator, Detective Conigliaro, to testify as to his investigation of the homicides. During the investigation, Detective Conigliaro, with Sloane Martinez's permission, listened to Sloane's telephone conversation with Martinez on January 27. The following day, *1079 he also monitored the audio-visual surveillance of the subsequent conversation between Sloane and Martinez that ultimately led to his arrest. During the State's redirect examination of Detective Conigliaro, the prosecutor asked the following:
Q. Corporal, when you were listening to that tape live, when you were listening to what was going on live on January 28th, right after that you said that you were authorized to arrest?
A. Absolutely.
Q. Was there any question, not based on your memory, not based on the transcript, was there any question in your mind that at that time that the Defendant had murdered Douglas Lawson?
The trial court overruled defense counsel's objection and the prosecutor continued to inquire about Detective Conigliaro's opinion of the defendant's guilt:
Q. Was there any doubt in your mind based on what he said then that he was responsible for the murder of Douglas Lawson?
A. There was no doubt that he did it.
The prosecutor highlighted this opinion testimony during closing argument: "You see, after the video tape was done, as Corporal Conigliaro told you, and as he told you, Baker and another Assistant State Attorney, Ms. Cox, no one had a doubt. He was arrested because nobody had a doubt that he was guilty." (Emphasis supplied.)
We begin our analysis with the basic proposition that a witness's opinion as to the guilt or innocence of the accused is not admissible. See Glendening v. State,
In Henry, the Fourth District addressed the effect of improper testimony giving an opinion of guilt.
The Fourth District concluded that the mother's improper opinion testimony could *1080 not have been harmless because it may have impermissibly bolstered the other evidence of identification. See id.; see also Zecchino,
Further, there is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt. In this situation, an opinion about the ultimate issue of guilt could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant. See United States v. Young,
[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.
Id. (emphasis supplied); see also Berger v. United States,
Although in a different context, this Court has expressed its concern that error in admitting improper testimony may be exacerbated where the testimony comes from a police officer. See Rodriguez v. State,
In this case, it was ultimately for the jury to decide whether the statements made by Martinez to Sloane established his guilt. The jury heard the audio-video taped conversation and, as the trier of fact, was charged with the responsibility of determining the weight to be given to that evidence. It was an impermissible invasion of the province of the jury for Detective Conigliaro, the lead investigating officer in this case, to express his opinion that after he listened to the conversation as it was occurring he had "no doubt" that Martinez committed the murders. Further, the clear and equally impermissible implication in this case was that Detective Conigliaro obtained some additional knowledge from monitoring the surveillance live that was unavailable to the jury. However, there was no evidence presented to the jury that Detective Conigliaro had heard some other statement by Martinez, not recorded on the video tape, that would lead him to have "no doubt" of Martinez's guilt. Thus, the admission of this opinion of guilt testimony was error.
Having found preserved error in the admission of Detective Conigliaro's opinion of Martinez's guilt, we must assess whether the error is harmless. See State *1081 v. DiGuilio,
We find that the prejudice flowing from the erroneous admission of this testimony was compounded by the State's closing argument. The assistant state attorney told the jury: "You see, after the video tape was done, as Corporal Conigliaro told you, and as he told you, Baker and another Assistant State Attorney, Ms. Cox, no one had a doubt. He was arrested because nobody had a doubt that he was guilty." (Emphasis supplied.) Because no one other than Detective Congliaro had testified to his or her opinion of guilt, this argument was not even based on evidence in the record. Further, this argument was improper because prosecutors may not directly or indirectly express their opinions as to the credibility of witnesses or the guilt of the defendant. See Young,
It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.
The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him ... to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.
Ruiz v. State,
Therefore, based on an examination of the record as a whole, we cannot find the improper opinion of guilt testimony to be harmless beyond reasonable doubt, especially when it was again highlighted in closing argument. See DiGuilio,
OTHER CLOSING ARGUMENT ERRORS
In addition to raising the prosecutor's improper use of opinion testimony during closing argument, Martinez also claims on appeal that the prosecution made numerous other improper remarks in closing argument. In particular, Martinez takes issue with an impermissible reference to the term "injunction" and an attack on the *1082 defendant's character during closing argument.
As to the prosecutor's use of the term "injunction" in closing argument, the trial court had ruled prior to trial pursuant to a motion in limine that the prosecutor was prohibited from using that term.[4] Despite the fact that the court specifically instructed the prosecution to inform the State's witnesses not to mention the word "injunction" during their testimony, Sloane Martinez used the term during her direct examination. The trial court sustained a timely objection by the defense but denied a subsequent motion for mistrial. Later, the prosecutor himself violated the motion in limine when he twice referred to the "injunction" during closing argument. Although this reference was not contemporaneously objected to, the defense subsequently made a motion for a mistrial, arguing that it created a false impression of spousal abuse.
"[P]rosecutorial improprieties must be viewed in the context of the record as a whole to determine if a new trial is warranted." Sireci v. State,
Further, during closing argument, the prosecutor also commented on Martinez's character by stating:
You see, when you think about the defendant, you've got to realize who you're dealing with here. You think a man who thinks about being, number one, a man who doesn't tell the truth. He doesn't tell the truth to the women he's involved with; he cheats on them; he runs around on them, not just once, not just twice. That's who we're dealing with here. That's who he's looking out for.
However, the well-established rule in Florida relating to character evidence is:
The character of a person accused of crime is not a fact in issue, and the state cannot, for the purpose of inducing belief in his guilt, introduce evidence tending to show his bad character or reputation, unless the accused, conceiving that his case will be strengthened by proof of good character, opens the door to proof by the prosecution that his character in fact is bad. This salutary rule is not permitted to be violated by the state, even when the defendant offers himself as a witness.
Jordan v. State,
Standing alone, these comments would not constitute fundamental error, see Kilgore v. State,
STATE'S USE OF TRANSCRIPT
Although our reversal renders it unnecessary to address the remaining points, in order to assist the trial court on remand, we deem it appropriate to address Martinez's claims regarding the State's use of the audio-video tape of the conversation and the use of a transcript of that conversation by the jury as an aid while the audio-video tape was being played.
Before trial, the defense unsuccessfully moved to exclude the police recording alleging that it was "to a large extent unintelligible and therefore incomplete." The defense also objected to a transcript of the recording prepared to assist jurors in their review and understanding of the audio-video tape. At the pretrial hearing, Sloane Martinez and Detective Conigliaro testified as to how they prepared the transcript. Over a three-day period, both Sloane Martinez and Detective Conigliaro sat in a room where they replayed the tape making notations as to what they heard on the recording. Sloane Martinez testified that, based on her memory of events and having listened to the tape, the transcript was an accurate transcription of the intercepted conversation between herself and her ex-husband.
As the conversation occurred, Detective Conigliaro, Corporal Baker, and Assistant State Attorney Karen Cox listened to the police surveillance from a remote location through a listening device. Detective Conigliaro also verified the accuracy of the transcript, relying on having listened to the conversation as it was taking place as well as listening to the videotape. Detective Conigliaro also testified that the quality of what he heard as the conversation was taking place was better than the recorded version. Moreover, he testified that he and Sloane Martinez were extremely conservative in preparing the transcript and they did not include items that they did not hear.
The trial court ruled that the audio-video tape could be played for the jury and that the State could provide jurors with the copies of the written transcript. The jurors were allowed to read the thirty-three-page transcript as an unadmitted court exhibit while prosecutors played the surveillance tape to the jurors. However, the trial court ruled that jurors could not take copies of the transcript back to the jury room during deliberations.
We begin first with the law concerning the use of the audio-video tape. The general rule in Florida regarding admissibility of partially inaudible tape recordings is that "[p]artial inaudibility or unintelligibility is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible." Odom v. State,
On appeal, Martinez does not assert that the trial court improperly admitted the audio-video tape but asserts error with regard to the jurors' use of the transcript. Martinez argues that the transcript should not have been used at trial because: (1) it was not properly authenticated; (2) it included portions that were inaudible on the tape; and (3) the trial court did not give a jury instruction limiting the jury's consideration of the transcript.
The Fourth District has explained the general law in Florida that the jury may "view an accurate transcript of an admitted *1084 tape recording as an aid in understanding the tape so long as the unadmitted transcript does not go back to the jury room or become a focal point of the trial." Macht v. State,
Similarly, in Grimes v. State,
In this case, Martinez claims that it was improper to allow jurors to use the transcript because it contained many statements that could not actually be heard on the tape. In explaining the potential dangers from a transcript, the United States Court of Appeals for the District of Columbia observed:
A transcript repeating in written form a conversation recorded on tape may help a juror listening to the tape follow the conversation when the tape is of questionable clarity, or contains the voices of multiple speakers who talk over each other or speak in quick succession. Ironically, the same circumstances that make a transcript helpful to a juror may prejudice the defendant if it is presented without proper safeguards, for the only transcripts worth fighting about are those on which important words may be susceptible to different interpretations. After all, the jurors are likely to notice a clear discrepancy between a tape and a transcript.
United States v. Holton,
One of the primary dangers of allowing the jury to use an unadmitted transcript is that it may become the evidence that the jury relies upon rather than the tape itself:
The principal risk of indiscriminately permitting the use of transcripts by jurors is that in the case of a poor quality or unintelligible recording, the jurors may substitute the contents of the more accessible, printed dialogue for the sounds they cannot readily hear or distinguish on the tape and, in so doing, transform the transcript into independent evidence of the recorded statements. A related risk arises when a transcript attributes incriminating statements to a defendant that the defendant does not admit making. Placing a transcript in the jury room during deliberations after the completion of the supervised, adversarial portion of the trial opens up the possibility that jurors will see the transcript as a neutral exhibit placed before them by the court and increases the chance that the document will be read without the tape recording playing alongside for the purpose of comparison.
Id. at 1540-41 (citations omitted).
In fact, precautionary procedures have been developed by the federal courts to decrease the risk that jurors will rely more heavily on the unadmitted transcript than admitted taped recordings. See, e.g., United States v. Robinson,
For example, as set forth in Slade, the "ideal procedure for testing accuracy is to have the prosecution and defense attorneys stipulate to a transcript."
A third alternative is to present the jury with two transcripts, containing both sides' versions, and let the jury determine which is more accurate. In this situation, because no one transcript is presented as "correct," the judge "need not necessarily listen to the tapes or pass on the accuracy of any transcript."
Id. (quoting United States v. Onori,
While the Eighth Circuit's procedures for use of transcripts are slightly different, its goal is consistent with the other circuits, which is to set forth procedures to ensure the accuracy and fairness of the transcripts. See United States v. McMillan,
Reviewing the available procedures for allowing juries to use transcripts, the Sixth Circuit in Robinson ultimately concluded:
We therefore reiterate our preference for using a transcript when the parties stipulate to its accuracy. But in the absence of a stipulation, we hold that the transcriber should verify that he or she has listened to the tape and accurately transcribed its content. The court should also make an independent determination of accuracy by reading the transcript against the tape. Where, as here, there are inaudible portions of the tape, the court should direct the deletion of the unreliable portion of the transcript. This, however, assumes that the court has predetermined that unintelligible portions of the tape do not render the whole recording untrustworthy. Finally, we find submission of two versions of the transcript prejudicial when the tape is significantly inaudible. Such a practice would undoubtedly inspire wholesale speculation by the parties and engender jury confusion. It would be entirely too difficult for the jury to read two separate transcripts while listening to the tape recording. Furthermore, this method is impractical in cases such as this where the defendant has asserted his fifth amendment right to remain silent.
Robinson,
In recognition of the case law in this State that has allowed the use of transcripts under certain circumstances, we set forth guidance for trial courts facing this situation in the future. The goal is for the trial court to balance the benefit of giving the jury an aid to understanding the tape against the danger of allowing an unadmitted transcript to become the evidence upon which the jury relies where neither the judge nor jury would be able to verify the accuracy of what is contained on the transcript.
Preliminarily, the trial court must determine that the unintelligible portions *1086 of the tape do not render the whole recording untrustworthy. See Odom,
We emphasize that there may be a difference between tape recordings that are difficult to hear and of poor quality and those that contain inaudible portions. Where the tapes are partially inaudible, jurors will be unable to make an intelligent comparison between the recording and the transcript. Under such circumstances, "[t]he practical effect of using an aid to comprehend unintelligible matter is that the aid becomes the evidence." Robinson,
In addition, as in this case, where a transcribed version of an audio-video tape is used as an aid to the jury and there is no stipulation as to its accuracy, trial courts should give a cautionary instruction to the jury regarding the limited use to be made of the transcript.[6]See Slade,
This transcript is not admitted and won't be admitted into evidence. The evidence is what's on the tape recording. If there's a conflict between what the transcript says and what you hear the tape says[,] the evidence is the tape, not the transcript and if you'reif you hear a conflict[,] what's on the tape is what the evidence is.
Having reviewed the proper procedures to be employed prospectively for using transcripts at trial, we now turn to the transcript in this case. Martinez admits that Sloane Martinez could authenticate the transcript because she participated in the recorded conversation. See Grimes,
Furthermore, we find no error in also allowing Detective Conigliaro to authenticate the transcript. Detective Conigliaro testified at trial that the conversation between Sloane and Martinez "sounded so much clearer" from the surveillance van than it did on the audio-video taped recording. Nevertheless, we caution that the trial court should not allow the validity of the transcript to be bolstered by testimony from those who simply listened to the tape after it was made. As discussed by First District in Harris, if the authenticating witness neither participated in nor overheard the recorded conversation as it was taking place, the authenticating witness would be "in no better position than the jury to determine the contents of the tape recording." Harris,
We next turn to Martinez's claims that the transcript includes many inaudible portions. In support of this, he points to comments made by the trial court and the prosecutor as well as portions of the tape the court reporter shows as "inaudible" that appear on the transcript. However, the fact that the court reporter did not transcribe all of the portions that appeared on the transcript does not establish that those portions transcribed are in fact inaudible. Rather, it may simply show that from the court reporter's vantage point, portions of the recording were too difficult to hear to be able to simultaneously record them. While the court reporter is required to transcribe the contents of the tapes as they are played at trial, the court reporter's transcript of the tape does not establish the inaccuracy of the transcript or the tape's audibility. See Lawrence v. State,
The videotape is part of the record on appeal on this case. We agree that the videotape is of poor quality and portions of the conversation are difficult to hear for a variety of reasons, including young children crying, occasional passing trains, and background interference on the tape. Thus, if upon remand Martinez is able to *1088 establish that there is an inaccuracy in the transcript or that a portion of the tape is inaudible (as opposed to difficult to hear), the court should exercise its discretion in deleting those portions of the transcript. However, because Sloane Martinez participated in the actual conversation, she would be able to testify to what Martinez actually said. See § 90.803(18)(a), Fla. Stat. (1995). As for the use of the transcript by the jury, the transcript was not admitted into evidence and jurors were not allowed to use the transcript during their deliberations. Nevertheless, the transcript was available to the jury during the playing of the video taped conversation. It appears that the transcript was also available during Sloane Martinez's direct examination, including when she testified as to her personal knowledge of what was on the inaudible portions of the recorded conversation after prosecutors played the tape to the jury. Allowing jurors to review the transcript during both the playing of the audio-video tape and during Sloane Martinez's testimony could have placed undue emphasis on the transcript and we caution the trial court to ensure that the transcript's use is limited.
Although the trial court did not give a cautionary instruction, we also note that none was requested and the failure to give such an instruction would not rise to the level of fundamental error. See Archer v. State,
Accordingly, for the reasons stated in this opinion, we reverse Martinez's convictions, vacate his sentences, and remand for a new trial.
It is so ordered.
HARDING, C.J., and SHAW, PARIENTE, LEWIS and QUINCE, JJ., concur.
ANSTEAD, J., specially concurs with an opinion.
WELLS, J., concurs in result only with an opinion.
ANSTEAD, J., specially concurring.
I concur in the majority opinion and write separately only to note my view that while it is clear that the tape recording was sufficiently audible to be admitted, a transcript of the tape recording made in this case should not be used for any purpose upon retrial. It is for the jury to determine what is contained in the tape recording. Of course, those that listened to the conversation being recorded can testify to what they heard. But permitting that testimony is far different than presenting the jury with a tangible transcript that contains statements that the jurors themselves cannot hear when listening to the recording. The recording "speaks for itself," and is the best evidence of what it says.
WELLS, J., concurring in result only.
I concur only in the result in this case. I conclude that the opinion of the police officer does create the same serious adverse effect which concerned the United States Supreme Court in United States v. Young,
I do not join in the argument portion of the opinion. I do not join in what I am concerned is an expansion of the doctrine of fundamental error as it relates to closing argument.
I do not join in that portion of the opinion with respect to the use of a transcript that sets out a procedure for the future use of such transcripts. While I do *1089 not take particular issue with any part of the procedure, I believe the establishment of such procedures should be done by rule and not by opinion. By proposing a rule, the pros and cons of various parts of a procedure are able to be thought through so that potential problems with the procedure will be better understood. That does not happen when we do this in an opinion. I am wary of unintended consequences. Therefore, I cannot join.
NOTES
Notes
[1] Although Assistant State Attorney Karen Cox, the wife of lead prosecutor Nicholas Cox, was apparently involved in the investigation of the murders, she did not participate in the prosecution of Martinez during the trial. In addition, neither Assistant State Attorney Karen Cox nor Corporal Baker testified as witnesses at trial.
[2] Martinez raises his trial attorney's failure to request an instruction as a claim of ineffective assistance of counsel as part of his first point on appeal. With rare exception, ineffective assistance of counsel claims are not cognizable on direct appeal. See Kelley v. State,
[3] The claims are: (1) the cumulative nature of trial court errors, discovery violations, prosecutorial misconduct, and ineffective assistance of counsel resulted in a fundamentally flawed trial and denied the defendant his constitutional right to a fair proceeding; (2) the prosecutor violated the discovery rules, specifically Florida Rule of Criminal Procedure 3.220(j), by failing to advise the defense of changes in witnesses' testimony; (3) the trial court erred in failing to instruct the jury regarding the defendant's alibi defense; (4) Martinez was deprived of effective assistance of trial counsel in violation of his constitutional rights; (5) the trial court erred in permitting jurors to view a state-prepared transcript of an audio-video tape that contained the defendant's incriminating remarks; (6) the prosecutor committed misconduct violating Martinez's right to a fair trial by (a) eliciting Detective Conigliaro's opinion as to the defendant's guilt; (b) referring to Detective Conigliaro's opinion of defendant's guilt during closing argument; (c) making false representations during closing argument regarding the motive for the crimes; (d) improperly attacking Martinez's character during summation; and (e) admitting prejudicial autopsy photographs of the victims; (7) the trial court erred in finding Martinez guilty of burglary and in finding the burglary to be an applicable aggravating circumstance; (8) Florida's capital sentencing statute is unconstitutional; (9) the trial court erred in finding the heinous, atrocious, or cruel aggravating circumstance to be applicable; and (10) the imposition of the death penalty is disproportionate in this case.
[4] Martinez filed a motion in limine before trial to prevent the State from referring to the word "injunction" out of fear that it would prejudice him because the jury would infer that the injunction referred to spousal abuse or stalking. The Court granted Martinez's motion.
[5] We do not address the situation where an expert witness professionally skilled in understanding inaudible and indistinguishable tape recordings testifies that the transcript is an accurate rendition of the tape recording. See Henry v. State,
[6] Because there is no standard cautionary jury instruction on the use of transcripts, we request that the Committee on Standard Jury Instructions in Criminal Cases study this issue and recommend a proposed instruction.
[7] A similar admonition is found in the Eleventh Circuit Court of Appeal Standard Instruction:
Members of the Jury:
As you have heard, Exhibit has been identified as a typewritten transcript [and partial translation from Spanish into English] of the oral conversation which can be heard on the tape recording received in evidence as Exhibit . [The transcript also purports to identify the speakers engaged in such conversation.]
I have admitted the transcript for the limited and secondary purpose of aiding you in following the content of the conversation as you listen to the tape recording, [particularly those portions spoken in Spanish,] [and also to aid you in identifying the speakers.]
However, you are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation [or the identity of the speakers] is entirely for you to determine based upon your own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.
Eleventh Circuit Standard Trial Instruction 5 at 512-13.