Gormady v. State

• Decision Date: 20 January 2016
• Docket Number: No. 2D14–1497.,2D14–1497.
• Citation: 185 So.3d 547
• Parties: John Albert GORMADY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

185 So.3d 547

John Albert GORMADY, Appellant,

v.STATE of Florida, Appellee.

No. 2D14–1497.

District Court of Appeal of Florida, Second District.

Jan. 20, 2016.

Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM

, Judge.

John Albert Gormady appeals his judgments and sentences for possession of a firearm by a convicted felon, possession of a controlled substance, and possession of drug paraphernalia. Because the trial court erred by permitting the jury to hear a partial read-back of a key witness's testimony which placed undue emphasis on particular statements, we reverse and remand for a new trial. We find no merit in the other issues raised by Gormady.

Gormady was charged with possession of a firearm by a convicted felon, possession of a controlled substance, and possession of drug paraphernalia after a handgun, methamphetamine, and several pipes were found in a vehicle in which he was a passenger.¹ Following a trial, he was convicted of the charges and sentenced to a mandatory minimum term of three years in prison for possession of a firearm and possession of a controlled substance. The trial court sentenced him to time served for possession of paraphernalia.

I. The read-back of Detective Johnson's testimony

Gormady first argues that the trial court erred by allowing the jury to hear a misleading partial read-back of Detective Bradley Johnson's testimony. We agree. Detective Johnson, the State's primary witness, testified that he pulled over a white truck with an expired license tag. Gormady was riding in the front passenger seat. Detective Johnson decided to issue a citation to the driver for the expired plate and, based on the driver's anxious behavior, asked for permission to search the vehicle. The driver consented. On the passenger's side of the vehicle, Detective Johnson found a bundled up T-shirt. The detective maintained that he found a small handgun in the T-shirt, but the defense disputed whether the firearm was found wrapped inside the shirt as the detective did not memorialize this fact in his either of his two police reports. Detective Johnson also found a silver pipe, a pack of cigarettes, and a small red bag bundled in the shirt. The cigarette pack contained a plastic baggie with a crystal-like substance. Three more pipes were found inside the small red bag. The baggie and pipes later tested positive for methamphetamine. Detective Johnson separated the driver and Gormady and placed them in handcuffs. Detective Johnson read Gormady his Miranda² rights, and Gormady incriminated himself.

After the State and defense presented their respective cases, the jury went into deliberations. At some point, the jury submitted the following request: "Can we have a copy of the defendant's interview with the detective?—or the reporter's recording of the defendant's presumed interview/confession per the detective." The court discussed the matter with the attorneys:

THE COURT: The answer to the first question is no. All the evidence has been presented that they can look at.

The second one says the reporter's, they might be referring to our court reporter, and they're asking for the detective's testimony regarding what the defendant said.

My thought is that there were several, both on direct and cross—maybe more than several times the detective stated what the defendant said.

The court then asked the court reporter how long it would take to prepare the transcript of Detective Johnson's testimony. The court reporter stated that it would take thirty to forty-five minutes to prepare the transcript and forty minutes to read the transcript. When the trial court asked if there was any objection to informing the jury of how long the transcript preparation would take, the following discussion between defense counsel and the trial court transpired:

[DEFENSE COUNSEL]: I just don't know what part of it is considered the defendant's presumed interview. I think in cross I jumped around back and forth on what he said my client's admission is. So are we going to chop up my cross when the Court Reporter confronts or runs into something that's related to the statements?

THE COURT: No. My intention was to have her read back the entire testimony of this witness.

[DEFENSE COUNSEL]: Full direct, full cross?

THE COURT: Yes.

....

The COURT: Here's what I'm going to do. I'm going to let the jurors know what exactly time-wise it will take, which is a half hour for the court reporter to be able to prepare to do that, and then they would bring them back into the court room to read that testimony in its entirety, which would take—which will be about an hour-and-a-half is our recollection of that.

So I'll send them back after that into the jury room to continue deliberating, while we're setting that up. And they can decide if that's what they still intend to do; okay?

However, when the trial court brought the jury back in, it instead instructed them as follows:

[T]here were several times throughout [Detective Johnson's] testimony this morning where the defendant's statements were discussed, both on direct and cross and I believe on redirect.... [Y]ou could hear it again, the entire testimony of this witness, unless at some point you want to stop and it's been completed.

But again, in talking to the attorneys it appears that your questions, both in direct and cross this discussion was going on, so there's not just one spot that we can go to.

(Emphasis added). The improper instruction that the jury would be delegated the decision to stop the read-back at any time was not discussed prior to the court giving the instruction. The court then informed the jury of how long it would take to prepare the transcript and how long the read-back would take and sent them back to deliberate while the transcript was prepared.

Once the transcript was prepared, the jury was brought back in for the read-back. Defense counsel asked to approach and requested that Detective Johnson's testimony be read back in its entirety (including cross-examination) or not at all. The court replied:

Well, it's up to the jury what they want to hear and what they don't want to hear. There isn't any rule of completeness. The jury had sought that they want to hear statements or testimony made by this detective, so I'm going to have the court reporter read this, and if they tell us to stop I'm going to stop. It's the jury's decision what they want to hear at this point; okay?

The trial court rejected defense counsel's request and conducted the read-back. Once direct examination had mostly been read back, the foreperson and another juror stated that they had heard enough. The court informed the jury that there were portions of the cross-examination related to Detective Johnson's interview but in the same statement improperly added: "Do you wish to hear all of the interview or do you wish to stop now?" Someone from the jury said, "Stop." Rather than continuing with the entire testimony, the trial court regrettably permitted the jury to dictate the manner and scope of the read-back. The jury returned to deliberations and found Gormady guilty.

"Trial courts are afforded broad discretion in matters concerning the read-back or play-back of testimony." Mullins v. State, 78 So.3d 704, 705 (Fla. 4th DCA 2012)

. Under Florida Rule of Criminal Procedure 3.410, when the jury requests a read-back, the court may honor such a request in its discretion after notice to the State and defense. However, trial courts should liberally construe a jury's request for a read-back of testimony. Hazuri v. State, 91 So.3d 836, 845 (Fla.2012). That is, any request for transcripts or testimony should prompt the trial court to inform the jury of the potential availability of a read-back. Id. at 846. Additionally, a trial court may not mislead a jury into believing that read-backs are prohibited. Id. The Florida Standard Jury Instructions provide language for granting a read-back as requested, deferring a request, or denying the request. Fla. Std. Jury Instr. (Crim.) 4.4.³ Limited or partial read-backs are permissible. Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)

. But a partial read-back is improper if it is misleading or places undue emphasis on particular statements. Garcia v. State, 644 So.2d 59, 62 (Fla.1994). In Mullins, the Fourth District held that a partial read-back was misleading where cross-examination was within the scope of the jury's request, the jury was not informed that the read-back only included testimony elicited on direct and, "more importantly, the partial [read]-back served to emphasize a version of events favorable to the State and diminish[ed] a version favorable to the defense." Mullins, 78 So.3d at 706.

We conclude that the trial court erred by permitting the jury to cease the read-back at any time, thereby allowing the jury to hear a partial read-back of Detective Johnson's testimony that placed undue emphasis on and served to bolster the State's version of events. While the trial court has broad discretion in granting or denying a request for a read-back, the trial court here deprived itself of the ability to exercise that discretion by allowing the jury to modify the scope of the read-back request while the read-back was ongoing. Cf. Rodriguez v. State, 559 So.2d 678, 679 (Fla. 3d DCA 1990)

(noting that while a trial court has great discretion in ruling on a read-back request, the discretion cannot be properly exercised without knowing the nature of the request), abrogated on other grounds by Scoggins v. State, 726 So.2d 762 (Fla.1999). The resulting partial read-back unduly emphasized the detective's direct testimony and was harmful in this case. The primary evidence tying Gormady to the contraband was the testimony of Detective Johnson. His testimony, therefore, was crucial to the State's case, and the partial read-back...