Mejia v. State
| Decision Date | 13 June 1996 |
| Docket Number | No. 95-1182,95-1182 |
| Citation | 675 So.2d 996 |
| Parties | 21 Fla. L. Weekly D1355 Carlos Omar MEJIA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Jean-Jacques Darius, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, appellant argues that the trial court committed two errors, either of which entitles him to a new trial: (1) failing to ensure that appellant's absence from bench conferences at which jury challenges were exercised was the result of an intelligent and voluntary choice; and (2) denying appellant's requested jury instruction on voluntary intoxication as a defense to first-degree murder and robbery. Appellant also asserts that the trial court failed to grant credit on his sentences for time spent in jail prior to sentencing. We affirm.
Appellant was charged by indictment with first-degree murder and robbery. Jury selection commenced on January 23, 1995, eighteen days after release of the opinion in Coney v. State, 653 So.2d 1009 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). In Coney, the supreme court purported to "clarify" the intent behind Florida Rule of Criminal Procedure 3.180(a)(4), which states that, "[i]n all prosecutions for crime[,] the defendant shall be present ... at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury"; and its previous decision on the same subject in Francis v. State, 413 So.2d 1175 (Fla.1982). It held:
The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised.... Where this is impractical, such as where a bench conference is required, the defendant can waive this right and exercise constructive presence through counsel. In such a case, the court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Alternatively, the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made.... Again, the court must certify the defendant's approval of the strikes through proper inquiry.
653 So.2d at 1013 (citations omitted). The court held, further, that a violation of rule 3.180(a)(4), as interpreted, is subject to a harmless error analysis. Id. Without elucidation, the court pronounced that its ruling was "prospective only." Id.
Although appellant, a native of Honduras, spoke and understood some English, at his request, an interpreter was appointed to translate during the trial. The record reflects that counsel and the trial court were aware of the recently released Coney opinion, and that they attempted to comply with what they understood its holding to require. When it came time to discuss challenges to the prospective jurors, the trial court, counsel, appellant and the interpreter all adjourned to chambers, at which point the transcript reflects the following:
After three prospective jurors had been stricken for cause, the trial court asked counsel whether they wished to address peremptory challenges in chambers, or in the courtroom. With appellant still present in chambers, defense counsel responded:
If I can have a moment, Judge, I may be able to kind of--I had told the defendant to look them over and tell me, too, and he had a couple. I will see if we can--I can do some of our peremptories now, provided we have an additional opportunity when I see who is in the box.
Defense counsel then struck three jurors, after which he said that he "would like for the defendant to have an opportunity when we put them back in the box to just take a quick look at them."
After everyone, including appellant, had returned in the courtroom, the trial court dismissed the stricken jurors, replacing them with new prospective jurors. After the new jurors had been questioned, the trial court asked counsel if they needed "a moment." Defense counsel responded in the affirmative. It is apparent that defense counsel then conferred with appellant regarding the prospective jury panel. Defense counsel then asked if counsel could approach the bench, saying that "we did waive that other matter, for the record," an obvious reference to the fact that appellant had waived his right to be present at bench conferences. Although the transcript reflects that a bench conference followed, it was not recorded. Clearly, however, the subject was peremptory challenges, as seven additional prospective jurors were excused. Additional jurors were called and questioned. The trial court again asked if counsel needed "a minute," and defense counsel again responded in the affirmative. Again, it is apparent that defense counsel conferred with appellant. Another unreported bench conference took place, after which defense counsel said, "Judge, I want the record to reflect that the defendant has waived his presence at these bench conferences." Seven additional jurors were then excused. These jurors were replaced and, after the replacements had been questioned, another unreported bench conference took place. Four more jurors were excused, after which both parties accepted the panel. The record reflects that defense counsel exercised all ten of his peremptory challenges.
At the conclusion of the presentation of evidence, the trial court, counsel, appellant and the interpreter adjourned to chambers for the charge conference. Before taking up the matter of jury instructions, the following took place:
THE COURT: Well, let me put a couple of things on the record first.
....
Mr. Mejia, are you satisfied with the translator's services ... ?
On appeal, appellant argues that Coney applies, and that he is entitled to a new trial because the trial court failed either to certify, after a proper inquiry, that appellant's waiver of his right to be present at bench conferences during which peremptory challenges were exercised by his counsel was intelligent and voluntary; or to require appellant to ratify the strikes after they had been made, and to certify, after proper inquiry, that such ratification was intelligent and voluntary. According to appellant, his absence from the bench conferences "thwarted the fundamental fairness of the proceedings" and "was, in any event, a clear violation of [r]ule 3.180(a)(4)." Moreover, appellant argues that the trial court's error cannot be considered harmless because it is impossible "to assess the extent of prejudice sustained by appellant's absence" and, therefore, one cannot conclude "beyond a reasonable doubt that this error did not affect the fairness of the trial."
The state responds, first, that any error was not preserved by contemporaneous objection. Next, the state argues that Coney is inapplicable because the supreme court expressly stated that the holding was to be "prospective only" (653 So.2d at 1013), and the decision did not become final until April 27, 1995, four days after appellant's trial had begun. According to the state, under pre-Coney case law, it was sufficient if a defendant was physically present in the courtroom during jury selection--actual presence at bench conferences was not required. Finally, the state argues that, even if Coney is applicable, reversal is not appropriate because it is apparent from the record that appellant's "absence at [sic] the bench conferences did not prejudice him" and, therefore, any technical error on the part of the trial court was clearly harmless.
Regarding the state's preservation argument, we note that the initial version of the Coney opinion includes the following sentence, which was deleted, without explanation, after both sides had filed motions for rehearing: "Obviously, no contemporaneous objection by the defendant is required to preserve this issue for review, since the defendant cannot be imputed with a lawyer's knowledge of the rules of criminal procedure." Coney v. State, 20 Fla. L. Weekly S16, 17 (Fla. Jan.5,1995). The state argues that this deletion "indicates that appellant must preserve the issue." We are unwilling to read so much into such a revision. But see Gibson v. State, 661 So.2d 288, 291 (Fla.1995) ().
According to the supreme court, "[t]he...
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