Hazuri v. State

• Decision Date: 31 May 2012
• Docket Number: No. SC10–61.,SC10–61.
• Citation: 91 So.3d 836
• Parties: Steven HAZURI, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

91 So.3d 836

Steven HAZURI, Petitioner,

v.STATE of Florida, Respondent.

No. SC10–61.

Supreme Court of Florida

May 31, 2012.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Forrest L. Andrews, Jr., and Lunar C. Alvey, Assistant Attorneys General, Miami, FL, for Respondent.

QUINCE, J.

Steven Hazuri seeks review of the decision of the Third District Court of Appeal in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), on the ground that it expressly and directly conflicts with decisions of the Fourth and Fifth District Courts of Appeal in Barrow v. State, 27 So.3d 211 (Fla. 4th DCA), review granted,49 So.3d 747 (Fla.2010), Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001), and Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992), on a question of law. We have jurisdiction. Seeart. V, § 3(b)(3), Fla. Const. The issue before us is whether the trial court erred in failing to inform the jury of its right to request a read-back in response to the jury's request for trial transcripts during deliberations. We conclude that the trial court erred, that the trial court's actions constituted reversible error, and that Hazuri is entitled to a new trial. Accordingly, we quash the decision of the Third District below, and approve of the reasoning applied by the district courts in Barrow,Avila, and Roper, and Judge Cope's dissent in Hazuri.

FACTS

The following facts come from the Third District Court of Appeal's opinion in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009):

Hazuri was tried for armed robbery and aggravated battery with a weapon. After a couple hours of deliberation, the jury sent a note to the court stating the jurors were unable to reach a verdict. The parties agreed the jury should be sent home for the evening and return the next day to continue its deliberations. The next morning, after [almost] an hour of deliberations, the jury sent a note to the court requesting trial transcripts. The following transpired:

THE COURT: Back on the record. Note for the record the presence of the defendant, his attorney, the assistant state attorney. Counsel, we have a note from the jury. Could they get transcripts from the trial. State, suggestions.

[ASSISTANT STATE ATTORNEY]: My only suggestion is that we tell them they must rely on their own recollection of the testimony.

THE COURT: [Defense counsel].

[DEFENSE COUNSEL]: My answer is you should inform the jury that they are allowed to have whatever, you know, portion of the transcript read back to them if they have a question about some evidence, but to have a set of transcripts from the trial, absolutely not.

THE COURT: There are no trial transcripts of moment. Certainly portions of the record could be read, however, I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.

[DEFENSE COUNSEL]: You are not going to advise them that they have a right to have the transcript read back?

THE COURT: They don't have a right. It is within my discretion.

[DEFENSE COUNSEL]: Would you note my objection for the record.

THE COURT: I will note your objection, counselor. I will note it for the record.

[DEFENSE COUNSEL]: You are just going to send the note back?

THE COURT: Yeah. Okay. Okay. There you go. Okay.

Hazuri v. State, 23 So.3d 857, 857–58 (Fla. 3d DCA 2009). Thereafter, Hazuri was convicted of aggravated battery with a weapon, which he then appealed to the Third District Court of Appeal. Id. at 857. On appeal, Hazuri argued that the trial court abused its discretion in refusing to inform the jury that it was entitled to have portions of the trial transcript read back to it, although it could not have a copy of any transcripts. Id. at 858. The district court first quoted Florida Rule of Criminal Procedure 3.410, which governs read-backs. Id. However, the district court noted that rather than ask for a read-back, the jury asked a specific question. Id. The court determined that the trial court's purported answer that the jurors “must rely on their own collective recollection of the evidence,” was fair and legally accurate in relation to the question posed. Id. at 858–59.¹Florida Rule of Criminal Procedure 3.400, which lists the items permitted in the jury room, does not contain a provision allowing transcripts in the jury room. Id. Thus, the district court reasoned that the trial court was required to reject the jury's request. Id. at 859. Moreover, the court was not required to advise the jury that it could request a read-back of testimony. Id.

The Third District acknowledged case law prohibiting a trial court from misleading a jury into thinking that a read-back was prohibited. Id. (citing Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). However, the district court determined that the trial court never stated that it would disobey rule 3.410 and deny a read-back if requested. Id. The Third District then distinguished the cases cited by the dissent. Id. The court determined that in two of the cases, the trial court preemptively informed the jury that there was no provision permitting a read-back of trial testimony, in direct contravention of rule 3.410. Id. (citing Huhn v. State, 511 So.2d 583, 591 (Fla. 4th DCA 1987), and Biscardi v. State, 511 So.2d 575, 580 (Fla. 4th DCA 1987)). In the third case cited by the dissent, Avila, the trial court rejected a read-back based on the erroneous impression that it was not permitted to provide a read-back of testimony of only certain witnesses. Id. (citing Avila, 781 So.2d at 414–15). In contrast, in the case before the Third District, the jury requested transcripts and the district court concluded that the trial court did not abuse its discretion in informing the jury that it could not have copies of the transcripts, and therefore had to rely on its recollection of the testimony. Id. at 859–60.

In his dissent, Judge Cope asserted that the read-back instruction timely requested by the defense should have been given. Hazuri, 23 So.3d at 861 (Cope, J., dissenting). After a brief mention of Avila,Huhn, and Biscardi, Judge Cope wrote:

With all due respect, much of the majority opinion is niggling nitpicking. The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple “no.”

The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3.410, a jury may request to have “testimony read to them,” and the court may so order.

Id. In light of this reasoning, Judge Cope concluded that the defendant was entitled to a new trial. Id.

ANALYSIS

In the only issue raised before this Court, Hazuri argues that the trial court abused its discretion in its handling of the jury's request for trial transcripts. In this case, the jury did not specifically request a read-back. It is also significant that counsel for Hazuri requested that the trial court, in response to the jury's request, should inform the jury of the availability of read-backs. Hazuri argues that the trial court abused its discretion in failing to inquire of the jury what portion of the transcript they wanted reviewed. However, the underlying thread of Hazuri's argument is the assumption that a transcript request constitutes a request for a read-back. Whether this assumption is true or not is an important question for this Court to consider, as the two requests receive dissimilar treatment. The standard of review for this claim is de novo. See Bordes v. State, 34 So.3d 215, 216–17 (Fla. 4th DCA 2010) (applying de novo review to an issue involving legal determinations).

A jury's request for a read-back of trial testimony is governed by 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 the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorneyand to counsel for the defendant.

As a general rule, trial courts have wide discretion in determining whether to grant read-back requests. In re Amends. to Fla. Rules of Civil Proc., 967 So.2d 178, 183 (Fla.2007). Indeed, “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury's request for a read back.” Francis v. State, 808 So.2d 110, 130 (Fla.2001). In 2007, we authorized the publication and use of Standard Criminal Jury Instruction 4.4, providing a framework for acknowledging and either granting, deferring, or denying a jury's request for a read-back of testimony. In re Amends. to the Fla. Rules of Civil Proc., 967 So.2d at 183.² However, we expressed no opinion on the correctness of the instructions set forth in the appendix to that opinion, which included Standard Instruction 4.4, and emphasized that the notes and comments to the instructions were not necessarily indicative of the views of the Court as to their correctness and applicability. Id. at 184. The Notes on Use of Standard Instruction 4.4 preclude the trial court from sending transcripts to the jury room. Id. at 194.

On the other hand, the general consensus is that trial judges have absolutely no discretion in permitting a jury to receive physical transcripts. Florida Rule of...