McNichols v. State, 73--1414
| Decision Date | 18 June 1974 |
| Docket Number | No. 73--1414,73--1414 |
| Parties | Zebedee McNICHOLS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and PEARSON and CARROLL, JJ.
Pursuant to a jury verdict, the appellant, Zebedee McNichols, was found guilty of murder in the second degree and sentenced to life imprisonment. The principal defense advanced by the defendant was not guilty by reason of insanity.
A jury trial was commenced on October 1, 1973 and on October 8, 1973, the jury retired to consider a verdict. While the jury was deliberating the foreman asked the bailiff for the reading of the testimony of Dr. Keedy, a defense witness. The bailiff went to the judge who was in the courtroom at the time and apprised him of the juror's request. At the time, the court was not in session and neither the defendant nor his counsel was in the courtroom. The bailiff was informed by the judge that the testimony was not available and that the jury, '. . . would (have to) recollect the testimony as best they could from what they had heard.' The bailiff then returned to the jurors and informed them that the court had denied their request.
Appellant's motion for new trial raised the point which is the basis of this appeal, that is, whether the trial court committed reversible error in summarily denying the jury's request without defendant or his counsel being present. The trial court took extensive testimony and, apparently upon a determination that the error was harmless, denied the motion for new trial. This appeal followed. We reverse upon a holding that the law as established in Slinsky v. State, Fla.App.1970, 232 So.2d 451, is governing here.
Because the facts in this case so nearly parallel those recited by the court in Slinsky v. State, we think tht it is not necessary to discuss further the law of the case. The State has in effect admitted that error occurred but urges tht it is harmless error basing its position upon the holding of the Supreme Court of Florida in Nelson v. State, 148 Fla. 338, 4 So.2d 375 (1941), and the holding of the Court of Appeal, Second District, is Bates v. State, Fla.App.1958, 102 So.2d 826. We conclude that the holding in Nelson v. State, supra, considers a prior applicable statute...
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Williams v. State
...In Ivory, we also cited Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA), cert. denied, 125 So.2d 877 (Fla.1960), and McNichols v. State, 296 So.2d 530 (Fla. 3d DCA), cert. denied, 303 So.2d 645 (Fla.1974), as being in accord. Neither case stands for the proposition cited in Ivory. In Holzap......
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Ivory v. State
...authority is in accord. Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960), cert. den., 125 So.2d 877 (Fla.1960); McNichols v. State, 296 So.2d 530 (Fla. 3d DCA 1974), cert. den., 303 So.2d 645 (Fla.1974). The First District Court of Appeal is contra. See Kimmons v. State, 178 So.2d 608 (......
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State v. Hunter, 77-1526
...in the absence of the prosecutor and the defendant or his counsel. Slinsky, supra; Ivory, supra; Holzapfel, supra; McNichols v. State, 296 So.2d 530 (Fla. 3d DCA 1974). In each of these cases it is held that the jury cannot receive any information, or be summarily denied information, in the......
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State v. McNichols, 45886
...STATE of Florida, Petitioner, v. Zebedee McNICHOLS, Respondent. No. 45886. Supreme Court of Florida. Nov. 14, 1974. Certiorari denied. 296 So.2d 530. ADKINS, C.J., and ROBERTS, McCAIN and OVERTON, JJ., DEKLE, J., dissents. ...