Ciccarelli v. State, No. 70811

• Court: Florida Supreme Court
• Writing for the Court: BARKETT; EHRLICH, C.J., and KOGAN; GRIMES; GRIMES
• Parties: 13 Fla. L. Weekly 536 Joseph Anthony CICCARELLI, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 70811
• Decision Date: 08 September 1988

Page 129

531 So.2d 129 13 Fla. L. Weekly 536 Joseph Anthony CICCARELLI, Petitioner,
v.
STATE of Florida, Respondent. No. 70811. Supreme Court of Florida. Sept. 8, 1988.

Page 130

Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for respondent.

BARKETT, Justice.

This case is before us on the following question certified in Ciccarelli v. State, 508 So.2d 52, 53 (Fla. 4th DCA 1987):

Is it necessary, in evaluating an assertion of harmless error in a criminal appeal, that each appellate judge independently read the complete trial record?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

To amplify the certified question, the district court candidly disclosed the procedure employed in deciding this case:

In determining that the error involved herein was harmless we have relied extensively upon the review of the evidence set out in the parties' briefs and our own internal review process by which the court's legal staff directly examines the trial court record to be certain that the court is presented with an accurate description of the evidence. Each judge on the panel has not independently read the record in its entirety.

Id. at 52.

Thus, the issue before us is whether the district court of appeal properly reviewed the case pursuant to the dictates of State v. DiGuilio, 491 So.2d 1129 (Fla.1986), and Holland v. State, 503 So.2d 1250 (Fla.1987).

We can best answer the question posed by the Fourth District by reiterating

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and reaffirming the dictates of DiGuilio, which established the components of the harmless error test in Florida. Initially, we note that the state as the beneficiary of the error has the burden of proving

beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

491 So.2d at 1135 (citation omitted). Thus, if there is error, it requires reversal unless the state can prove beyond a reasonable doubt that the error was harmless. We reject the state's contention, like that reported in Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987), approved, 531 So.2d 133 (Fla.1988), that it is the court's burden rather than that of the state:

The state offered no argument on harmless error in its brief, and at oral argument counsel insisted it was an obligation of the court to apply the harmless error test without argument or guidance from the state.

Id. at 1302. The district court in that case correctly noted that "the harmless error rule requires that the state demonstrate beyond a reasonable doubt that the error did not affect the jury verdict." Id. at 1303 (citation omitted, emphasis added).

Accordingly, if the state has not presented a prima facie case of harmlessness in its argument, the court need go no further.

If, however, the state has presented a prima facie case, the appellate court must evaluate the record to determine, not whether there was overwhelming evidence of guilt, but whether the result would have been the same absent the error:

[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence. In a pertinent passage, Chief Justice Traynor points out:

Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.

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