Carmichael v. State

• Decision Date: 09 July 1998
• Docket Number: No. 90811,90811
• Parties: 23 Fla. L. Weekly S377 David P. CARMICHAEL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 247

715 So.2d 247

23 Fla. L. Weekly S377

David P. CARMICHAEL, Petitioner, v. STATE of Florida, Respondent.

No. 90811.

Supreme Court of Florida.

July 9, 1998.

Nancy A. Daniels, Public Defender, and Raymond Dix, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.

Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Stephen R. White, Assistant Attorney General, Tallahassee, for Respondent.

SHAW, Justice.

We have for review Carmichael v. State, 693 So.2d 1141 (Fla. 1st DCA 1997), based on conflict with Ellis v. State, 696 So.2d 904 (Fla. 4th DCA 1997). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Carmichael as explained herein.

David Carmichael was charged with driving under the influence of alcohol and was tried before a jury. After counsel for both sides had finished questioning prospective jurors, the jury was selected at an unreported bench conference on June 26, 1995. Although Carmichael was not present at the bench during the conference, he was seated in the courtroom and had conferred with his lawyer immediately before the conference. The record is silent as to whether peremptory challenges were exercised. Carmichael was convicted as charged and the district court affirmed. He now claims that he is entitled to a new trial under Coney v. State, 653 So.2d 1009 (Fla.1995), because he was not present at the bench when the jury was selected. The State, on the other hand, contends that Carmichael failed to raise this issue in a timely fashion. We agree.

The Court in Coney held that under our then-current rules of procedure the defendant had a right to be present at the bench when juror challenges were exercised. Florida Rule of Criminal Procedure 3.180 provided:

(a) Presence of the Defendant. In all prosecutions for crime the defendant shall be present:

....

(4) at the beginning of the trial during the ... challenging ... of the jury.

Coney, 653 So.2d at 1013. The Court gave the rule a literal reading and concluded that "the rule means just what it says: The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised." ¹ Id. We did not decide at that time whether the defendant must timely raise this issue. ²

We confronted a similar scenario in Gibson v. State, 661 So.2d 288 (Fla.1995), a death case wherein defense counsel asked for a ten-minute recess during jury selection to meet with his client, and the court denied the request:

Mr. Rinard: Your Honor, if I may have--if we may take an afternoon recess so I may have ten minutes or so to speak with Mr. Gibson to advise him of some things and see how he would like for me to proceed.

The Court: Let's proceed with this round. Are there any additional challenges for cause?

Gibson, 661 So.2d at 290. Gibson was convicted and he raised on appeal the issue of his absence from the bench during jury selection. This Court found no error, noting that Gibson had not timely raised the issue:

Based on [the above] brief exchange, Gibson claims error in two respects. First, he argues that the trial court violated his right to be present with counsel during the challenging of jurors by conducting the challenges in a bench conference. Second, he argues that the trial court violated his right to the assistance of counsel by denying defense counsel's request to consult with Gibson before exercising peremptory challenges.

In Steinhorst v. State, 412 So.2d 332 (Fla.1982), we said that, "in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." In this case, we find that Gibson's lawyer did not raise the issue that is now being asserted on appeal. If counsel wanted to consult with his client over which jurors to exclude and to admit, he did not convey this to the trial court. On the record, he asked for an afternoon recess for the general purpose of meeting with his client. Further, there is no indication in this record that Gibson was prevented or limited in any way from consulting with his counsel concerning the exercise of juror challenges. On this record, no objection to the court's procedure was ever made. In short, Gibson has demonstrated neither error nor prejudice on the record before this Court. Cf. Coney v. State, 653 So.2d 1009, 1013 (Fla.1995) (holding trial court's error in conducting pretrial conference where juror challenges were exercised in absence of defendant was harmless beyond reasonable doubt).

Gibson, 661 So.2d at 290-91 (emphasis added). ³ This ruling is in harmony with other decisions of the Court involving trial procedure in general ⁴ and the jury selection process in particular. ⁵

In the present case, as in Gibson, the defendant failed to raise this issue with the trial court. As noted above, defense counsel consulted with Carmichael immediately prior to jury selection, and neither Carmichael nor his lawyer expressed any interest in Carmichael being present at the bench during jury selection. Our decision in Coney had been issued months earlier, giving Carmichael ample notice of the existence of this right. As in Gibson, "there is no indication in this record that [the defendant] was prevented or limited in any way from consulting with his counsel concerning the exercise of juror challenges." 661 So.2d at 291.

A timely request to approach the bench--or an affirmative waiver--would have allowed the court to address this matter promptly and easily, with a minimum expenditure of judicial resources. ⁶ Had the court improperly denied such a request, Carmichael would be entitled to relief. Under his proposed scenario, however, a defendant could sit silently on this right throughout the jury selection process, await the trial's conclusion, and then--in the event of an adverse outcome--raise the issue on appeal for the first time. The price of such an "ambush"--i.e., a new trial--is prohibitively steep in terms of resources and delay--and basic fairness.

Based on the foregoing, we conclude that the trial court did not err in selecting the jury. We approve the result in Carmichael as explained herein.

It is so ordered.

OVERTON, KOGAN and WELLS, JJ., concur.

HARDING, C.J., concurs in result only with an opinion, in which ANSTEAD, J., concurs.

PARIENTE, J., concurs in result only with an opinion.

HARDING, Chief Justice, concurring in result only.

I respectfully concur in result only. I believe that Coney violations that occurred within the Coney window can be raised for the first time on appeal or in a motion for new trial. However, I would find the error to be harmless in this case.

In Coney v. State, 653 So.2d 1009 (Fla.1995), this Court was asked to determine what the term "presence" meant under Florida Rule of Criminal Procedure 3.180(a)(4), which requires a defendant to be present in a criminal prosecution during the challenging of the jury. ⁷ We stated:

We conclude that the rule means just what it says: The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised. See Francis. Where this is impractical, such as where a bench conference is required, the defendant can waive this right and exercise constructive presence through counsel. In such a case, the court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Alternatively, the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made. See State v. Melendez, 244 So.2d 137 (Fla.1971). Again, the court must certify the defendant's approval of the strikes, through proper inquiry. Our ruling today clarifying this issue is prospective only.

Coney, 653 So.2d at 1013.

Subsequent to our decision in Coney, Florida Rule of Criminal Procedure 3.180 was amended to state:

(b) Presence; Definition. A defendant is present for the purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the issues being discussed.

Amendments to the Florida Rules of Criminal Procedure, 685 So.2d 1253, 1254 (Fla.1996). This amendment did not become effective until January 1, 1997. See id. at 1255. Thus, a window was created in which the immediate site/juror challenges requirement of Coney applied to all trials that took place between the date that Coney became final, April 27, 1995, and the date the new rule went into effect, January 1, 1997. The jury in Carmichael's case was selected on June 26, 1995, and therefore fell within the Coney window.

The majority opinion analogizes Carmichael's case to Gibson v. State, 661 So.2d 288 (Fla.1995). The Court in Gibson stated:

In Steinhorst v. State, 412 So.2d 332 (Fla.1982), we said that, "in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." In this case, we find that Gibson's lawyer did not raise the issue that is now being asserted on appeal. If counsel wanted to consult with his client over which jurors to exclude and to admit, he did not convey this to the trial court. On the record, he asked for an afternoon recess for the general purpose of meeting with his client. Further, there is no indication in this record that Gibson was prevented or limited in any way from consulting with his counsel concerning the exercise of juror challenges. On this record, no objection to the court's procedure was ever made. In short, Gibson has demonstrated neither error nor prejudice on the record before this Court.

Gibson, 661 So.2d at 290-91. The majority concludes that Carmichael, like Gibson, needed to raise this issue at the trial court in order to preserve the issue on appeal. ⁸ However, Gibson's trial predated this Court's decision in Coney, and...