Hazuri v. State
| Decision Date | 16 December 2009 |
| Docket Number | No. 3D07-3046.,3D07-3046. |
| Citation | 23 So.3d 857 |
| Parties | Steven HAZURI, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
Before COPE, SHEPHERD, and SUAREZ, JJ.
Steven Hazuri appeals his conviction for aggravated battery with a weapon. The only issue on appeal is whether the trial court abused its discretion in failing to advise the jury they could receive a "readback" of trial testimony in response to a request sent during deliberations for transcripts. We conclude the trial court had no duty to volunteer this information and thus did not abuse its discretion in declining to do so. We therefore affirm Hazuri's conviction.
Hazuri was tried for armed robbery and aggravated battery with a weapon. After a couple hours of deliberation, the jury sent a note to the court stating the jurors were unable to reach a verdict. The parties agreed the jury should be sent home for the evening and return the next day to continue its deliberations. The next morning, after an hour of deliberations, the jury sent a note to the court requesting trial transcripts. The following transpired THE COURT: Back on the record. Note for the record the presence of the defendant, his attorney, the assistant state attorney. Counsel, we have a note from the jury. Could they get transcripts from the trial. State, suggestions.
Hazuri argues the trial court abused its discretion in refusing to advise the jurors that although they could not have a copy of any transcripts, they were entitled to have portions of the transcript read back to them. Florida Rule of Criminal Procedure 3.410, governing "readbacks," provides as follows:
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 the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
However, the jury in this case did not ask for a "readback." Rather, the jury asked a specific question. The court's purported answer1—the jury "must rely on their own recollection of the evidence"—was fair and legally accurate. Florida Rule of Criminal Procedure 3.400 states:
(a) ... The court may permit the jury, upon retiring for deliberation, to take to the jury room:
(1) a copy of the charges against the defendant;
(2) forms of verdict approved by the court, after being first submitted to counsel (3) all things received in evidence other than depositions. If the thing received in evidence is a public record or a private document which, in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.
Nowhere does the above-quoted rule contain a provision allowing the jury to receive transcripts of trial testimony in the jury room. See Janson v. State, 730 So.2d 734, 735 (Fla. 5th DCA 1999); cf. Barnes v. State, 970 So.2d 332, 339 (Fla.2007) (); Young v. State, 645 So.2d 965, 967 (Fla.1994) (). Thus, the trial court was bound to refuse the jury's request, and its further answer that the jury "must rely on their own recollection" was true in relation to the question posed. Upon giving such an answer, the trial court was under no obligation—as defense counsel suggested—to inform the jurors that a "readback" of trial testimony may be available upon request.
The assertion by the defense that the trial courts legally accurate answer created a misimpression in the minds of the jury that any further request for a "readback" also would be rejected is unpersuasive. It is true that "while the trial court has the discretion to deny a jurys request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited." Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). However, in this case, nowhere in the colloquy between counsel and the court can there be found any statement that the court would disobey Rule 3.410 and deny a "readback" if requested. In fact, the trial judge expressly stated to the contrary. Because no transcripts were to be forthcoming, it was entirely correct to instruct the jury they "must rely on their own recollection of the evidence...." See Coleman v. State, 610 So.2d 1283, 1286 (Fla. 1992) (); Infantes v. State, 941 So.2d 432, 434 (Fla. 3d DCA 2006) ().
We find the authorities cited in the dissent inapposite, as they are all soundly based on the presence of legal error in the trial courts formulation of its own limitations. In two of the cases—Huhn v. State, 511 So.2d 583, 591 (Fla. 4th DCA 1987) and Biscardi v. State, 511 So.2d 575, 580 (Fla. 4th DCA 1987)—the trial court preemptively advised the jury in identical terms that "there really is no provision ... to have [] testimony read back." This advice to the jury directly contravened Florida Rule of Criminal Procedure 3.410. In Avila, the third case relied upon by the dissent, the jury sought "[to] review [ ] the timetable presented by the testimonies of five specific alibi witnesses" in the case. Avila, 781 So.2d at 415. After an additional written exchange with the jury, the trial court concluded the jury, in fact, had requested a "readback,"—which involved "a full readback of five witnesses' testimonies [that the trial court anticipated] would take a full day to complete"—but declined the request on the erroneous impression that it was prohibited from providing a "readback" of the testimony of just selected witnesses. Id. at 414-15. This, of course, was error.
In our case, the jury requested "transcripts." The trial court did not abuse its discretion in advising the jury that it could not be given copies of the transcripts and must therefore rely upon its own recollection of the testimony.
We affirm the conviction.
Defendant-appellant Steven Hazuri appeals his conviction of aggravated battery with a weapon. He requests a new trial based on the trial court's response to a jury question. His point is well taken.
Defendant was charged with armed robbery and aggravated battery with a weapon. At the conclusion of the trial, the jury retired to deliberate. After a few hours of deliberating, the jury sent a note saying that the jurors were unable to reach a verdict. The jury was sent home for the evening and returned the next morning to continue its deliberations.
The jury sent a note requesting trial transcripts. The following transpired:
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Hendricks v. State Of Fla.
...it had any questions regarding the facts. Johnson, 10 So.3d at 681. However, the Third District distinguished Avila in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), where the trial court gave an instruction similar to the one at issue in the instant case. In Hazuri, the jury sent a note......
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Hendricks v. State, Case No. 1D09-357 (Fla. App. 3/31/2010), Case No. 1D09-357.
...it had any questions regarding the facts. Johnson, 10 So. 3d at 681. However, the Third District distinguished Avila in Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), where the trial court gave an instruction similar to the one at issue in the instant case. In Hazuri, the jury sent a no......
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Philip Morris USA, Inc. v. Duignan, Case No. 2D15–5055
...it refused to tell the jury that it could have parts of the transcript read back. After the Third District affirmed, Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), the supreme court accepted jurisdiction.The supreme court quashed the Third District's decision and held that the trial cour......
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Barrow v. State
...So.2d at 415. We acknowledge that in a recent, similar case, the third district has reached a different result. In Hazuri v. State, 23 So.3d 857, 857 (Fla. 3d DCA 2009), a deliberating jury asked if they could "get transcripts from the trial." Defense counsel asked the trial judge to tell t......