Avila v. State, 4D00-70.
| Decision Date | 17 January 2001 |
| Docket Number | No. 4D00-70.,4D00-70. |
| Citation | 781 So.2d 413 |
| Parties | Henry AVILA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, West Palm Beach, for appellee.
This case is before us for the third time after we granted Henry Avila's petition for writ of habeus corpus based on a valid claim for ineffective assistance of appellate counsel. In this new appeal on the merits from his convictions of second-degree felony murder, armed burglary, and attempted armed robbery, Avila argues that the trial court improperly responded to the jury's request to review specific alibi testimony. We agree and thus, reverse.
Avila was charged by information with second-degree felony murder, armed burglary, and attempted armed robbery. These charges arose from a criminal episode that occurred between 6:30 p.m. and 7:00 p.m. in Pembroke Pines, Broward County, Florida. Specifically, two male assailants forced a homeowner at gunpoint into his house that was also occupied at the time by his girlfriend and four children. While one assailant guarded the homeowner's girlfriend with a knife, the other assailant took the homeowner at gunpoint to a back bedroom to retrieve money from the homeowner's safe. After the safe was opened, the homeowner disarmed the assailant guarding him and, after a struggle, shot the assailant several times, killing him. The other assailant fled the scene.
At trial, the homeowner and his girlfriend identified Avila as the assailant who guarded her. A witness also identified Avila's customized truck as being at the crime scene. Moreover, Avila's fingerprint was identified on some duct tape found near the crime scene.
Avila, however, contended that he was in Key West at the time the crimes occurred. In support of this claim, he presented several witnesses who testified that he was at various locations in Key West on the day in question from about 3:00 p.m. to 9:00 p.m. Testimony showed that it takes approximately two hours and forty-five minutes to travel between Key West and Pembroke Pines.
During jury deliberation, the jury handed the trial court a note indicating that it was interested in reviewing the timetable presented by the testimonies of five specific alibi witnesses. After the trial court asked the jury for clarification, the jury sent back another note wherein it stated that it needed to review the timing of specific events set forth by the testimonies of four named alibi witnesses. Although it was evident that the jury sought a readback of only the portion of the witnesses' testimonies that defined the timeline, the trial court believed it was prohibited from providing a partial readback. Because it was involved in another case and anticipated that a full readback of all five witnesses' testimonies would take a full day to complete, the trial court answered the jury, as follows:
After deliberating, the jury found Avila guilty as charged. This court then affirmed his convictions on appeal. See Avila v. State, 745 So.2d 983 (Fla. 4th DCA 1999). Avila, however, subsequently filed a petition for writ of habeus corpus alleging ineffective assistance of appellate counsel, in part for failing to argue that the trial court erred in its response to the jury's notes. We then granted the petition and limited our review of the new appeal to this issue.
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...the trial court was fully aware that defense counsel disagreed with its actions, preserving the matter for appeal. Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). Since the matter was preserved for appeal, counsel did not perform deficiently. Moreover, there was no prejudice, becaus......
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...it may not mislead the jury into thinking that a read-back is prohibited.” Johnson, 10 So.3d at 681 (quoting Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). However, the Third District held that the error was harmless based upon its conclusion that the evidence against Johnson was ......
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Hendricks v. State Of Fla.
...request. Fla. R.Crim. P. 3.410. A trial court's discretion over whether to allow a read-back of testimony is wide. Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judg......
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Johnson v. State Of Fla.
...it may not mislead the jury into thinking that a read-back is prohibited." Johnson, 10 So. 3d at 681 (quoting Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001)). However, the Third District held that the error was harmless based upon its conclusion that the evidence against Johnson wa......