Jones v. State

• Citation: 923 So.2d 486
• Decision Date: 02 March 2006
• Docket Number: No. SC04-1217.,SC04-1217.
• Parties: Cedrick JONES, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

923 So.2d 486

Cedrick JONES, Petitioner, v. STATE of Florida, Respondent.

No. SC04-1217.

Supreme Court of Florida.

March 2, 2006.

Carey Haughwout, Public Defender and Margaret Good-Earnest, Assistant Public Defender, Chief, Appellate Division, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, and Richard Valuntas, Assistant Attorney Generals, West Palm Beach, FL, for Respondent.

WELLS, J.

We have for review Jones v. State, 870 So.2d 904 (Fla. 4th DCA 2004), which expressly and directly conflicts with the decision of the Third District Court of Appeal in Vargas v. State, 902 So.2d 166 (Fla. 3d DCA 2004).¹ We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Cedrick Jones was convicted of two counts of battery on a law enforcement officer and one count of resisting arrest without violence. On appeal to the Fourth District Court of Appeal, Jones's appellate counsel filed a motion to relinquish jurisdiction to reconstruct the record because the transcript of the jury selection was not available.² The Fourth District granted this motion. During a February 21, 2003, evidentiary hearing in the trial court,³ Jones's trial counsel, Emmanuel Simon, testified that he could not accurately recall the jury selection proceedings but that he typically makes objections during the voir dire. Jones testified that he recalled his counsel making objections during the voir dire and "saying something like Neo [sic] Slappy when the State was striking a witness or something." However, Jones also conceded that he had difficulty separating what happened in each of his different trials⁴ and that he thought that his counsel raised this objection at all three jury selections. Jones testified that he could not remember how many jurors the State struck or their race.

Julie Porter, the assistant state attorney who prosecuted Jones's case, also testified regarding her recollection of the trial. She identified a chart that contained her notes from jury selection in Jones's second trial. The chart indicated that the State used two of six peremptory challenges and the defense used three of six peremptory challenges. The chart also indicated that one prospective juror struck by the State was a crime victim and the other knew law enforcement officers. Porter further testified that she recalled this second jury selection going much quicker than the jury selection for the first trial and did not recall any challenges for cause. She further testified that there might have been objections that occurred during the voir dire that she could not remember.

After the hearing, the trial court entered an order finding that the record could not be reconstructed. On appeal, Jones argued that a new trial must be granted because his appellate counsel was unable to determine if prejudicial error occurred during jury selection. See Jones, 870 So.2d at 904. The Fourth District rejected this argument, citing its decisions in Burgess v. State, 766 So.2d 293 (Fla. 4th DCA 2000), and Velez v. State, 645 So.2d 42 (Fla. 4th DCA 1994), and this Court's decision in Darling v. State, 808 So.2d 145 (Fla.2002). Importantly, the district court determined that Jones conceded that he did not know if any errors actually occurred in the missing portions of the trial transcript. Jones, 870 So.2d at 904. The Fourth District then concluded:

Under existing law by which we are bound, defendant has failed to demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue in his appeal. It is not enough to say that as a result of the omission we do not know whether any error occurred, and therefore a new trial is required. A new trial would be required under Darling-Burgess-Velez only if Jones could point to a specific decision by the trial judge that he would use to show reversible error.

Id. at 905 (emphasis added).

In Vargas v. State, 902 So.2d 166 (Fla. 3d DCA 2004), the Third District Court of Appeal considered this same issue but reached the opposite conclusion, holding that the defendant was entitled to a new trial despite the fact that he could not identify what error had occurred during the voir dire. In Vargas, the court reporter's notes from the voir dire portion of the defendant's trial were destroyed by fire. 902 So.2d at 166. The Third District held:

Even though [the defendant] has been unable, either at the hearing below or on appeal, to identify even a potential source of reversible error in the conduct of the voir dire and instead relies only on the fact that the possibility that one occurred cannot be totally eliminated in the absence of an appropriate record, we grant the motion and hereby order a new trial.

Id. (footnote omitted).

This Court has previously considered this issue. Initially, it is important to note that we have held that when a defendant alleges that an error occurred at trial, it is an "important principle" that "the defendant bears the burden of demonstrating that an error occurred in the trial court." Goodwin v. State, 751 So.2d 537, 544 (Fla. 1999). This Court has previously applied this principle in the specific context of whether a new trial should be granted on the basis of missing or lost trial transcripts. In Delap v. State, 350 So.2d 462, 463 (Fla.1977), a substantial portion of the transcript from a death penalty trial was missing. The opinion did not indicate whether Delap had asserted that any specific error occurred in the missing portions of the transcripts. We held, however, that because this Court has the responsibility of reviewing the entire record in an appeal from a case in which the death penalty was imposed, the missing transcripts constituted reversible error because they were necessary for a complete review of the case. Id. at 463 n. 1.

We again took up the issue in a case in which the transcript of a first-degree murder trial was "virtually incomprehensible" because of various omissions, misspellings, and other inaccuracies. Johnson v. State, 442 So.2d 193, 195 (Fla.1983). After an evidentiary hearing in respect to the issue, the Court affirmed the trial judge's denial of the motion for a new trial, finding that the defendant was unable to point to any prejudice that resulted from the missing portions of the trial transcript. Id. We stated that "[i]n the absence of some clear allegation of prejudicial inaccuracy we see no worthwhile end to be achieved by remanding for new trial." Id.; see also Ferguson v. Singletary, 632 So.2d 53, 58 (Fla. 1993) ("As to those portions which are still not transcribed, Ferguson points to no specific error which occurred during these time periods. Under these circumstances, we reject this claim.").

In Darling v. State, 808 So.2d 145, 163 (Fla.2002), we said:

Darling argues that there are no records of certain pretrial hearings which occurred in this case, precluding meaningful consideration of Darling's claims. However, Darling has failed to demonstrate what specific prejudice, if any, has been incurred because of the missing transcripts. The missing portion of the transcript has not been shown to be necessary for a complete review of this appeal. Cf. Velez v. State, 645 So.2d 42, 44 (Fla. 4th DCA 1994) (concluding that the appellant was not prejudiced in the review of his conviction and sentence, "[c]onsidering the limited portion of transcript which is missing and the errors alleged to have occurred in the trial court"). Therefore, this claim too lacks merit.

See also Armstrong v. State, 862 So.2d 705, 721 (Fla.2003) (new trial not warranted where defendant "failed to link a meritorious appellate issue to the allegedly missing record and thus cannot establish that he was prejudiced by its absence."); Johnson v. Moore, 837 So.2d 343, 345 (Fla. 2002) (claim for ineffective assistance of appellate counsel based on counsel's failure to ensure a complete record on appeal was denied because defendant failed to show any specific errors that occurred due to failure of counsel on this basis). It is therefore clear that under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant.

The evidence presented at the February 21 evidentiary hearing in this case did not demonstrate that any error occurred during the voir dire, and thus there was no identification of any prejudice that resulted because of the missing transcript of the voir dire. The relevant testimony of Jones at the evidentiary hearing was:

Q Do you recall exactly what objections were made before the jury?

A He was saying something like Neo [sic] Slappy when the State was striking a witness or something.

Q Do you recall whether there were sidebar conferences with the Judge during the course of that jury selection?

A They went over by the reporter.

Q They went over by the reporter?

A Yeah.

Q Did the prosecutor make any comments to the jury during jury selection which Mr. Simon objected to?

A Yes.

Q Do you recall, specifically, what those were?

A Not really.

It is apparent that Jones was referring to a Neil-Slappy⁵ objection in his testimony. A Neil-Slappy objection alleges that a prospective juror was struck by an opposing party solely because of the juror's race.

Defense counsel could not remember any such challenges being made. At the evidentiary hearing on this issue, the prosecutor from Jones's trial stated that to her recollection, all of the peremptory challenges that the State exercised were directed to white venire members. Moreover, the prosecution was able to cite two non-racially motivated reasons for its two peremptory strikes, and there was no demonstration that these reasons were pretextual. In Melbourne v. State, 679 So.2d 759, 764 (Fla.1996), we addressed the burden placed on a party raising such an...