Johnson v. State, 3D07-2145.

• Decision Date: 29 April 2009
• Docket Number: No. 3D07-2145.,3D07-2145.
• Citation: 10 So.3d 680
• Parties: Aundra JOHNSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

10 So.3d 680

Aundra JOHNSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D07-2145.

District Court of Appeal of Florida, Third District.

April 29, 2009.

Rehearing Denied May 21, 2009.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Magaly Rodriguez and Nicholas Merlin, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ, and LAGOA, JJ.

LAGOA, J.

The appellant, Aundra Johnson ("Johnson"), appeals his conviction and sentence for fleeing a police officer.¹ For the following reasons, we affirm.

On appeal, Johnson raises three issues. We find only one argument merits discussion. Johnson contends that the trial judge erred in instructing the jury that the law did not permit him to read back testimony. Specifically, the trial court instructed the jury as follows:

Now let me caution you regarding the communication, if you want to ask a question regarding the facts, let me caution you that we don't have I[sic] simultaneous transcript of these proceedings so we don't have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

Additionally, prior to the jury retiring to deliberate, the trial court again instructed the jury as follows:

Ladies and gentlemen and, again, if you have a question regarding the facts I cannot reopen the facts. I cannot explain the evidence to you. The normal answer that I give you is that you must rely upon your own recollection of the evidence. If you have differences of opinion you must hash them out amongst yourselves.

Florida Rule of Criminal Procedure 3.410, however, states as follows:

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 attorney and to counsel for the defendant.

"Under this rule, the trial court has wide latitude in the area of the reading of testimony to the jury. In this respect, the trial court may provide a limited, or partial, readback of testimony specifically requested by the jury, as long as that testimony is not misleading." Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001) (citations omitted).

In this case, the record shows that the issue was properly preserved for appellate review as Johnson specifically objected to the trial court's instructions to the jury. As this Court has previously held, it is error for the trial court to discourage the jury from requesting a read-back of testimony. See Davis v. State, 760 So.2d 977, 978 (Fla. 3d DCA 2000). Indeed, "[w]hile the trial court has the discretion to deny a jury's request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited." Avila, 781 So.2d at 415.

Although the State concedes that the trial court erred in instructing the jury, the State argues that the error was harmless. Given the facts of this case, we agree that this error was...