Merricks v. State, No. 2D00-789.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: FULMER.
• Citation: 793 So.2d 119
• Parties: Adolphus MERRICKS, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 2D00-789.
• Decision Date: 17 August 2001

793 So.2d 119

Adolphus MERRICKS, Appellant,
v.
STATE of Florida, Appellee

No. 2D00-789.

District Court of Appeal of Florida, Second District.

August 17, 2001.

793 So.2d 120

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, for Appellant

Robert A. Butterworth, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Adolphus Merricks appeals his conviction for sexual battery and attempted sexual battery, arguing that the trial court erred in denying his motion for mistrial based upon an improper communication between a bailiff and the jury. We agree and reverse because the bailiff answered a question submitted by the jury outside of the presence of the trial judge, defense counsel, and the prosecutor.

After the jury retired to deliberate, a juror stuck his head out of the jury room and told the bailiff that the jury would like to have some of the testimony read back. Before the bailiff could do anything in response, another bailiff told the jury, "You'll have to rely on your memories," and shut the door. Upon being notified of what had transpired, the trial judge asked a bailiff to have defense counsel and the prosecutor gather in the courtroom so that he could advise them of the interaction between the bailiff and the juror. The bailiff returned approximately one minute later and advised the judge that the jury had announced that they had reached a verdict.

Before receiving the jury's verdict, the judge discussed the incident with defense counsel and the prosecutor. The judge acknowledged that the bailiff's communication with the juror was improper but told counsel that he, in all likelihood, would have given the same response. The prosecutor did not object to the improper communication and argued that the error was harmless. Defense counsel, however, objected and moved for mistrial. The trial court found that the communication was inadvertent and was done without the knowledge of the court or anyone else, and that the jury advised the bailiff that it had reached a verdict immediately after it was given the response by the bailiff. The trial court then concluded that, based on these circumstances, any error involved would not be prejudicial to Merricks and denied the motion for mistrial.

Merricks argues, and we agree, that the interaction between the bailiff and the jury violated Florida Rule of Criminal Procedure 3.410, which provides:

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.

A violation of rule 3.410 is ordinarily per se reversible error. In Ivory v. State, 351 So.2d 26 (Fla.1977), the supreme court first articulated a per se reversible error rule where a trial court responded to a jury's question without giving counsel notice and opportunity to participate in the

793 So.2d 121

discussion of the action to be taken on the jury's request. The court reaffirmed its holding in Ivory in subsequent decisions. See Mills v. State, 620 So.2d 1006 (Fla. 1993); State v. Franklin, 618 So.2d 171 (Fla.1993); Colbert v. State, 569 So.2d 433 (Fla.1990); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985). However, in Thomas v. State, 730 So.2d 667 (Fla.1998), the supreme court explained that the rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection. Thus, in Thomas, where defense counsel communicated his acceptance of the procedure employed, the issue was considered waived and the rule 3.410 violation was not reversible error. Unlike in Thomas, here, defense counsel objected to the improper communication and moved for mistrial. Based on these facts, we conclude that reversible error occurred. Accordingly, we reverse and remand for a new trial. However, we are persuaded by the dissent to certify to the Supreme Court of Florida the following question as a matter of great public importance

IS A BAILIFF'S OFF-THE-RECORD ANSWER TO A JURY'S QUESTION AN ERROR REQUIRING PER SE REVERSAL OR MAY IT BE SUBJECTED TO A HARMLESS ERROR ANALYSIS UNDER STATE V. DIGUILIO, 491 So.2d 1129 (Fla.1986)?

Reversed, remanded, and question certified.

SALCINES, J., Concurs.

ALTENBERND, A.C.J., Dissents with opinion.

ALTENBERND, Acting Chief Judge, Dissenting.

I fully understand why the majority believes that Ivory v. State, 351 So.2d 26 (Fla.1977), and its progeny control this case. Nevertheless, I would hold that the per se error rule announced in Ivory applies only in cases in which the violation of Florida Rule of Criminal Procedure 3.410 involves misconduct by the trial judge. In this case, the judge did not disobey rule 3.410; the bailiff did. When a bailiff violates that rule, I do not believe that the trial judge is compelled to declare a mistrial. I would subject such an error to a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986). See, e.g., Walker v. State, 546 So.2d 1165 (Fla. 3d DCA 1989). Although many violations of rule 3.410 by court personnel might not survive a DiGuilio harmless error analysis,...