No. 97-460 | Fla. Dist. Ct. App. | Feb 18, 1998
Lead Opinion
The only real dispute at Perriman’s jury trial on a charge of possession of a firearm by a convicted felon was whether he himself had placed the handgun where it was found near the passenger seat of a vehicle he had occupied or it had been put there without his knowledge. The primary point
The controlling rule, Fla.R.Crim.P. 3.410, provides only that “[a]fter the jurors have retired to consider their verdict, if they request additional instructions ... the court may give them ... additional instructions” [emphasis supplied]. Under this provision, which was amended specifically to change a previous mandatory requirement, see Fla.R.Crim.P. 3.410 committee note (1972), reprinted in 34 F.S.A. Rule 3.410, at 11 (West Supp.1998), the issue of whether and what supplemental instructions should be given to the jury lies entirely within the discretion of the trial court. Henry v. State, 359 So. 2d 864" court="Fla." date_filed="1978-06-01" href="https://app.midpage.ai/document/henry-v-state-1853092?utm_source=webapp" opinion_id="1853092">359 So.2d 864, 866 (Fla.1978)(“the feasibility and scope of any reinstruction of the jury is ... diseretion[ary]”). The decided cases, in turn, establish that a rereading or reference to prior instructions on the subject matter, rather than an arguably more direct and helpful answer to a jury question, does not, at the least, constitute an abuse of that discretion.
Affirmed.
. The others have no merit and rate no discussion.
. The colloquy on this point was as follows:
Mr. Mastos: They have asked a very simple question. If you are in a car_
* $ 4 *
Mr. Mastos: Judge, it summarizes this case in a nutshell. If you are in a car and there is a gun and you have no knowledge of [sic] gun it is not against the law. The Court has to answer that question, no.
The Court: Let me see the question. Let me read it again. They just haven’t read the instruction. It is very simple.(emphasis added)
. In accordance with the standard jury instructions the written charge stated:
Before you can find the defendant guilty of Possession of a Firearm by a Convicted Felon, the State must prove the following two elements beyond a reasonable doubt:
1. Roderick Perriman had been convicted of three felonies.
2. After the conviction Roderick Perriman knowingly had in his care, custody, possession or control a firearm.
* * * * * *
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.
.The fact that the trial judge did not err by refusing to answer the question directly does not mean that it would have been wrong, or even that it would not have been preferable to do so. In this respect, we consider that the federal rule, which requires a trial judge to answer a jury question with "concrete accuracy,” Bollenbach v. United States, 326 U.S. 607" court="SCOTUS" date_filed="1946-01-28" href="https://app.midpage.ai/document/bollenbach-v-united-states-104224?utm_source=webapp" opinion_id="104224">326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350, 354 (1946); see also United States v. Karlin, 852 F.2d 968" court="7th Cir." date_filed="1988-09-14" href="https://app.midpage.ai/document/united-states-v-charles-a-karlin-509334?utm_source=webapp" opinion_id="509334">852 F.2d 968 (7th Cir.1988), cert. denied, 489 U.S. 1021" court="SCOTUS" date_filed="1989-02-21" href="https://app.midpage.ai/document/brewer-v-states-9078813?utm_source=webapp" opinion_id="9078813">489 U.S. 1021, 109 S. Ct. 1142" court="SCOTUS" date_filed="1989-02-21" href="https://app.midpage.ai/document/caldwell-v-miller-9078817?utm_source=webapp" opinion_id="9078817">109 S.Ct. 1142, 103 L. Ed. 2d 202" court="SCOTUS" date_filed="1989-02-21" href="https://app.midpage.ai/document/highfill-v-wisconsin-9078809?utm_source=webapp" opinion_id="9078809">103 L.Ed.2d 202 (1989); United States v. Zabic, 745 F.2d 464" court="7th Cir." date_filed="1984-09-28" href="https://app.midpage.ai/document/united-states-v-ilija-zabic-and-ivan-siprak-442821?utm_source=webapp" opinion_id="442821">745 F.2d 464 (7th Cir.1984), has much to recommend it in terms of what we think is a trial judge's affirmative duty appropriately to assist the jury in rendering a just verdict. See Sutton v. State, 51 So. 2d 725" court="Fla." date_filed="1951-04-10" href="https://app.midpage.ai/document/sutton-v-state-1686739?utm_source=webapp" opinion_id="1686739">51 So.2d 725 (Fla.1951). (It must be pointed out, however, that these cases reflect the
Rehearing
On Motion For Rehearing
While the motion for rehearing is denied, we consider, for the reasons already alluded to in the opinion of February 18, 1998, that this case involves highly significant issues concerning the role of the trial judge in criminal prosecutions which should be considered in the light of modem authorities by the Supreme Court. Accordingly, it is certified that the decision herein passes upon the following question of great public importance:
Whether reversible error is committed when the court fails to directly answer a jury question, when the correct response would resolve the issue posed in favor of the defendant.
Rehearing denied, decision certified.