Bradford v. State, 97-4214.

• Decision Date: 19 November 1998
• Docket Number: No. 97-4214.,97-4214.
• Parties: Douglas Alphonso BRADFORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

722 So.2d 858

Douglas Alphonso BRADFORD, Appellant, v. STATE of Florida, Appellee.

No. 97-4214.

District Court of Appeal of Florida, First District.

November 19, 1998.

Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

DAVIS, J.

Douglas Alphonso Bradford appeals his convictions and sentences for two counts of attempted first degree murder and one count of shooting or throwing a deadly missile. Bradford raises three issues on appeal. He argues that he is entitled to a new trial because the trial court erred by encouraging jurors to submit written questions which would be asked of witnesses if not objectionable. The State concedes that reversal is required on Bradford's second issue, because the trial court erred in imposing a three-year minimum mandatory sentence for shooting or throwing a deadly missile. Finally, Bradford argues that the court erred in assessing eighteen additional scoresheet points for possession of a firearm during the commission of a felony. We find that the trial court did not abuse its discretion by implementing the juror questioning procedure utilized in this case, and affirm the conviction. We also find that the trial court did not err in making the necessary factual determination to complete preparation of the sentencing scoresheet. However, because we find that the trial court erred in imposing a three-year minimum mandatory sentence on Count III, we reverse and remand for resentencing.

Ebeny Lockhart, the mother of Bradford's child, ended her relationship with Bradford on January 20, 1997. Two days later, Bradford followed the car Lockhart was driving into an apartment complex and parked behind her, preventing her from leaving. He used a shotgun to break in the rear window of Lockhart's vehicle. Lockhart's mother was sitting in the rear seat of the car. He then put the gun up to the driver's window and fired several shots.

Before the trial began, the trial court announced its intention to permit jurors to submit written questions for witnesses, and to then have counsel come to a sidebar conference at which objections could be voiced outside the presence of the jury. Following the conference, the judge explained, he would ask the question if it was not objectionable. The jurors in this case submitted only two questions, but neither one was asked of the witnesses.

We do not find that the trial court abused its discretion in permitting juror questioning. The Florida Supreme Court has stated that "[t]here is authority supporting the position that such procedure should be discouraged but we find that the weight of opinion is to the contrary." Ferrara v. State, 101 So.2d 797, 801 (Fla.1958). Recent opinions confirm that the trial court has discretion to implement such a procedure. See United States v. Bush, 47 F.3d 511, 514-15 (2d Cir.1995)(it is within the discretion of the trial court whether to permit direct questions by jurors, and "[e]very circuit court that has addressed this issue agrees.... State courts, moreover, have overwhelmingly placed juror questioning of witnesses within the trial judge's discretion."). See also Pierre v. State, 601 So.2d 1309 (Fla. 4th DCA 1992)(approving the procedure followed in this case). In Watson v. State, 651 So.2d 1159, 1163 (Fla.1994),cert.denied mem., 516 U.S. 852, 116 S.Ct. 151, 133 L.Ed.2d 96 (1995), the Florida Supreme Court found "no merit" to a claim that this same procedure for permitting jurors to submit questions to witnesses violated the defendant's right to an impartial jury, stating "this practice has been condoned as permissible trial procedure." Furthermore, even if the trial court erred in this case by encouraging juror questioning, it was a harmless error when only two questions were sought and neither was propounded to a witness. Compare United States v. Ajmal, 67 F.3d 12 (2d Cir.1995)(reversing because extensive juror questioning detracted from the jury's role as impartial factfinder) with United States v. Thompson, 76 F.3d 442, 449-50 (2d Cir.1996)(distinguishing Ajmal and holding that in the absence of "a significant number of questions" the...