LEERDAM v. State, 2D03-3894.

• Decision Date: 17 September 2004
• Docket Number: No. 2D03-3894.,2D03-3894.
• Citation: 891 So.2d 1046
• Parties: Clarence William LEERDAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

891 So.2d 1046

Clarence William LEERDAM, Appellant, v. STATE of Florida, Appellee.

No. 2D03-3894.

District Court of Appeal of Florida, Second District.

September 17, 2004.

Rehearing Denied October 26, 2004.

James T. Miller, Jacksonville, and Denis DeVlaming, Clearwater, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Clarence William Leerdam appeals his convictions of two counts of attempted first-degree murder, one count of armed burglary, and one count of violating a final injunction for protection. First, he contends that he was deprived of his right to confer with counsel during a trial recess. Applying Florida law in light of United States Supreme Court precedent, we find that the error was harmless. Second, Leerdam contends that the State elicited an impermissible comment on his post-Miranda¹ silence, but he does not demonstrate error. Accordingly, we affirm.

At approximately 2 a.m. on October 3, 2002, Leerdam entered the home of his former girlfriend, Doreen Delguidice, armed with a .38 caliber revolver. In the bedroom, he found Delguidice and her new boyfriend, Chris Bililis, and fired six shots, one of which pierced Bililis' left hand. At trial, Leerdam testified in support of a defense theory that his intent was to commit suicide in Delguidice's presence, not to murder her and whomever he may have found with her. At the conclusion of defense counsel's direct examination of Leerdam, the following exchange occurred:

THE COURT: Counsel approach a minute, please.

(Thereupon a sidebar conference was held outside the presence of the jury as follows:)

THE COURT: Thank [sic], are you going to be doing a cross?

[Prosecutor]: Yes, sir.

THE COURT: I take it it's going to be —

[Prosecutor]: Do you want to take a break? That's fine, Judge.

THE COURT: I suggest we take a break now and then get done. Okay? Fine.

(Thereupon, a sidebar conference was concluded and proceedings resumed before the jury as follows:)

THE COURT: Be in recess for ten minutes.

(Thereupon a conference was held outside the presence of the jury as follows:)

[Defense counsel]: I would like the opportunity to confer with Mr. Leerdam during this break.

[Prosecutor]: Judge, I ask —

THE COURT: Let's do this. He's under oath. He's in the middle of testimony and I don't think I'm supposed to let you do that.

[Defense counsel]: Judge, I'm not sure that — well, I'm going to say it another way. I don't believe that applies to the attorney and the defendant, his client. I think it applies to witnesses.

THE COURT: Right now he is a witness and I'm not going to let you talk with him. If I'm wrong, I'm wrong. Okay? But I'm not going to let you do it.

During the break, jury instructions and lesser offenses were discussed. The State's cross-examination of Leerdam commenced at the conclusion of the break.

On appeal, Leerdam contends that he was deprived of his constitutional right to counsel, which is guaranteed by the Sixth Amendment to the United States Constitution — applicable to Florida through the Fourteenth Amendment — and by article I, section 16, of the Florida Constitution. He further contends that this deprivation warrants a new trial. To resolve these issues, we must consider federal and Florida precedent regarding a defendant's right to consult with counsel during a recess that is called while the defendant is on the witness stand. Federal and Florida authorities agree that a defendant does not have the constitutional right to discuss his trial testimony with counsel while that testimony is in progress. Beyond that agreement, federal and Florida authorities differ significantly.

Deprivation of the Right to Counsel Under the Federal and Florida Constitutions

According to the United States Supreme Court, the existence of a Sixth Amendment violation depends upon whether the character of the recess compels a finding that the defendant has been denied effective assistance of counsel. Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (construing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)). In Geders, the Supreme Court held that denying a defendant the opportunity to consult with counsel during a seventeen-hour overnight recess, which was called during the defendant's testimony, deprived him of his Sixth Amendment right to counsel because it was appropriate to presume that the normal consultation between client and counsel during an overnight recess would include matters other than the content of the defendant's testimony. 425 U.S. at 88-91, 96 S.Ct. 1330. Such consultation would normally encompass "a variety of trial-related matters" such as "the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain." Perry, 488 U.S. at 284, 109 S.Ct. 594 (construing Geders). A deprivation of access to counsel during a recess of that character was per se constitutional error, denying the defendant effective assistance of counsel and entitling him to a new trial without the need for him to show that he was prejudiced by the error. Id. at 279-80, 109 S.Ct. 594 (noting that Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), cited Geders to make clear that the actual or constructive denial of effective assistance of counsel did not require an additional showing of prejudice).

In Perry, the Supreme Court contrasted Geders with the facts of the case before it and found that a fifteen-minute recess during the defendant's testimony was "of a different character" than the overnight recess in Geders.488 U.S. at 284,109 S.Ct. 594. The Supreme Court announced a different rule: "[I]n a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice." Id. at 284, 109 S.Ct. 594. In such a case, the defendant would not be relieved of the burden to demonstrate prejudice as in Geders. In sum, under federal authority, the denial of access to counsel during a recess of the character in Geders, without more, is a per se deprivation of the Sixth Amendment right to effective assistance of counsel, but the denial of access to counsel during a recess of the character in Perry, without more, is not a constitutional deprivation at all.

Meanwhile, the Florida Supreme Court has adhered to its own formulation of the defendant's right to consult with counsel during a recess that is called during the defendant's testimony: "[N]o matter how brief the recess, a defendant in a criminal process must have access to his attorney." Amos v. State, 618 So.2d 157, 161 (Fla.1993) (quoting Bova v. State, 410 So.2d 1343, 1344-45 (Fla.1982), which referred to the defendant's right to counsel as provided by article I, section 16, of the Florida Constitution). Such access allows defense counsel to advise, calm, and reassure the defendant without violating the rule against coaching witnesses. Id. (citing Thompson v. State, 507 So.2d 1074, 1075 (Fla.1987)). Thus in Florida, regardless of whether the recess is one hour,² thirty minutes,³ or ten minutes,⁴ "to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel." Id. at 161 (quoting Bova, 410 So.2d at 1345). However, all such violations are subject to harmless error analysis, wherein the State is afforded the opportunity to prove that the constitutional deprivation did not contribute to the verdict. See id.; Thompson, 507 So.2d at 1075; Bova, 410 So.2d at 1345; Cabreriza v. State, 517 So.2d 51, 52 (Fla. 3d DCA 1987).

In Amos, our supreme court did not cite any federal authority in its discussion of the constitutional right to counsel, even though the dissent argued that the denial of access to counsel during the one-hour recess was not a constitutional deprivation under Perry. 618 So.2d at 164 (Grimes, J., concurring in part, dissenting in part). Thus we believe the Amos court construed the right to counsel as provided by article I, section 16, of the Florida Constitution, thus establishing Florida law regarding a criminal defendant's right to counsel independent of the Sixth Amendment. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

The State urges this court to find, pursuant to Perry, that Leerdam was not deprived of his constitutional right to counsel. However, Florida law affords greater protection of a defendant's right to counsel than federal authority requires. See Traylor v. State, 596 So.2d 957, 961 (Fla.1992) (explaining that states, when construing their own state constitutions, may place more rigorous restraints on government intrusions than the federal Constitution imposes). To prove a violation of the Sixth Amendment under federal authority, the defendant must show that he was denied effective assistance of counsel according to the character of the recess in which consultation was denied. Under Florida law, a violation of the right to counsel is proved when the defendant shows that he was denied access to counsel during any recess, without regard to the character of the recess or to proof of a denial of effective assistance of counsel. For this reason, we conclude that the trial court erred by denying Leerdam access to his counsel after his counsel requested the opportunity to consult with him during the recess in this case. See Amos, 618 So.2d at 161; cf. Wallace v. State, 851 So.2d 216, 221 (Fla. 3d DCA) (finding no deprivation of the right to counsel when the record failed to suggest that the defendant, or counsel on the defendant's behalf, wished to exercise that right during a mid-testimony recess in which consultation was prohibited), review denied, 860 So.2d 980 (Fla.2003), cert. denied, 540 U.S. 1187, 124 S.Ct. 1431, 158 L.Ed.2d 95 (2004).

...