Colbert v. State
| Decision Date | 25 October 1990 |
| Docket Number | No. 72244,72244 |
| Citation | 569 So.2d 433 |
| Parties | 15 Fla. L. Weekly S562 Corey Lynn COLBERT, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for petitioner.
Robert A. Butterworth, Atty. Gen., and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for respondent.
The case of State v. Colbert, 522 So.2d 436 (Fla. 2d DCA 1988), is before us for review because of apparent conflict with Bradley v. State, 513 So.2d 112 (Fla.1987); Williams v. State, 488 So.2d 62 (Fla.1986); and Ivory v. State, 351 So.2d 26 (Fla.1977). We have jurisdiction and approve the decision below. Art. V, § 3(b)(3), Fla. Const.
Corey Lynn Colbert was charged with one count of kidnapping, two counts of sexual battery, and one count of lewd assault on a child. At trial, the jury engaged in lengthy deliberations and on several occasions sent written requests to the court. The jury never announced that it was deadlocked and at one point indicated that it had reached verdicts on more than one count. In its last request, the jury asked the trial court whether it might hear a reading of the transcribed testimony of the victim and of another witness. However, the court reporter who had transcribed this portion of the trial was unavailable, and there was no possibility of her returning until the following Monday. The jury was told of this fact and sent from the courtroom.
At this time, defense counsel moved for a mistrial on all counts. The state countered that the jurors might be told to rely on their memories or agree to recess until Monday when the testimony could be read to them. The jury was returned to the courtroom and asked if it had reached a verdict on any count and, if so, whether it had reached a verdict on more than one count. Jurors responded in the affirmative to both questions. After the jury was sent from the courtroom again, the judge informed counsel that she was inclined to have the jury return the verdicts it had reached and declare a mistrial as to any remaining counts. Defense counsel objected on grounds that the charges were too closely related, while the state argued that each count was distinct and that a partial mistrial was proper. The trial court overruled the defense objection and informed counsel:
So, I'm going to deny the motion for mistrial as to the verdicts that they have reached a decision on and declare a mistrial on those counts that they have not reached a verdict on. Bring the jury in, please.
The trial court then gave the following instruction to the jurors:
So, what I'm going to do is ask you to present the verdicts that you have reached, and it would be my intention to declare a mistrial as to those--that count or those counts that you have not reached a verdict on.
Now, knowing that that is what I intend to do, if you wish to continue deliberations, you may do that. If you do not feel that you could reach a verdict on those matters that you have not reached one on knowing this testimony is not available, then I'm asking you to submit the verdicts that you have to the Court. If you feel that you need to go to the jury room to discuss that, you may do that.
[Jury responded affirmatively.]
(Bracketed material in original; emphasis added.) Defense counsel then renewed the earlier objection and objected to the instruction given and to the fact counsel was "not advised that the Court was going to give the jury this option." The judge never directly ruled on the objection, but gave the following response:
Four minutes after receiving the charge, the jury returned with verdicts on all four counts. Although the trial court offered to have the jury polled as to which counts had previously been decided and which were left undecided in their last deliberation, defense counsel declined the offer.
On appeal, Colbert challenged what he refers to as the "modified Allen charge" and also argued that by giving this instruction without prior notice to counsel the trial court violated Florida Rule of Criminal Procedure 3.410, which provides:
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 such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
Although the district court's precise reasoning is unclear, the court below apparently did not believe that the per se prejudicial error rule employed in connection with violations of the above rule was implicated or that the giving of the so-called "modified Allen charge" resulted in reversible error. We agree.
A short analysis of case history is appropriate in connection with Colbert's claim that the trial judge's failure to notify counsel of her intent to give the precise instruction given resulted in per se prejudicial error. This per se error rule was first recognized in Ivory v. State, 351 So.2d 26, 28 (Fla.1977), where we held that it is prejudicial error for a trial judge to respond to a request covered under rule 3.410 without counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury's request. In Ivory, we noted that any communication with the jury outside the presence of the prosecutor, the defendant, and the defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless. Id. This per se reversible error rule evolved as a prophylactic procedure to ensure that a trial judge's response to a jury request for additional instructions or to have testimony read is made in the presence of counsel. In Ivory, we emphasized that the right to be present and to participate includes the right to place objections on the record as well as the right to make full argument as to the reasons the jury's request should or should not be honored. Id.; See also Bradley v. State, 513 So.2d 112, 114 (Fla.1987) ( ). Without this participation process, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial. Bradley, 513 So.2d at 113. The particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record.
Ivory; Bradley; Williams v. State, 488 So.2d 62 (Fla.1986); and Curtis v. State, 480 So.2d 1277 (Fla.1985), were all situations in which counsel were not present prior to the trial court's responding to the jury request. Defense counsel were denied the opportunity to argue their positions regarding the jury request. In addition, in Ivory, Williams, and Bradley, counsel were not able to place objections on the record after the jury instructions were given.
Such a situation was clearly not present in this case. The prospective jury instructions were extensively discussed with counsel. Defense counsel fully argued the position that a mistrial on all counts was warranted and objected on the record. After the jury was given the modified instruction, defense counsel properly preserved the issue by objecting on the record. Unlike the above-listed cases, the notice requirement of rule 3.410 was effectively satisfied because counsel had notice, an opportunity to argue, and to object, both before and after the instructions were given. It is therefore the merits of the objection to the instruction which deserve consideration using harmless error principles. Williams, 488 So.2d at 64.
First, we note that it is doubtful that the challenged jury instruction constituted a "modified Allen charge." The instruction was not designed to aid a deadlocked jury to render a unanimous verdict. See, e.g., Kelley v. State, 486 So.2d 578 (Fla.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986). The jury never indicated that it was unable to reach a verdict; it had simply requested a reading of transcribed testimony. However, assuming arguendo that it was error to give the...
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