Mills v. State, 91-0905

• Court: Court of Appeal of Florida (US)
• Citation: 596 So.2d 1148
• Docket Number: No. 91-0905,91-0905
• Parties: 17 Fla. L. Weekly D798 Charles MILLS, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 25 March 1992

Page 1148

596 So.2d 1148 17 Fla. L. Weekly D798 Charles MILLS, Appellant,
v.
STATE of Florida, Appellee. No. 91-0905. District Court of Appeal of Florida,
Fourth District. March 25, 1992.
Rehearing and Clarification Denied May 11, 1992.

Page 1149

Kayo E. Morgan, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

GARRETT, Judge.

Charles Mills appeals his armed trafficking in cocaine and conspiracy to traffic in cocaine convictions and sentences. We affirm as to all issues. We write, however, to state that the trial court committed harmless error when it responded to a question from the jury without first giving defense counsel the opportunity to be heard.

During jury deliberations, the jury sent a note to the trial judge. The trial judge notified both counsel that the jury had a question. In the defendant's presence, defense counsel asked what the question was so that it could be discussed. The trial judge refused to tell defense counsel the question, and told him there was no need to talk about it. The jury was then brought into the courtroom. The trial judge said to the jury, "I have your question, 'Judge Coker, could you please clarify or provide a copy of the law on armed trafficking.' " The trial judge told the jury that he could not do that, but would reread to them the instruction on trafficking. The trial court then reread the instructions on armed trafficking that he had earlier given the jury. The trial judge then asked, "Does that answer your question?" The jury said, "yes" and then retired to continue their deliberations. After the jury left the courtroom, the trial judge and defense counsel engaged in the following colloquy:

MR. MORGAN: Judge, show my objection. We didn't get a chance to discuss that.

THE COURT: Well, what's your objection?

MR. MORGAN: I'd like to have entrapment read to them. It's not an offense to traffic if he was entrapped.

THE COURT: I responded to their question exactly as they requested that I respond and your objection is noted.

Rule 3.410, Florida Rules of Criminal Procedure (1991) reads:

After the jurors have retired to consider their verdict, if they request additional instructions ... [s]uch instructions shall be given ... only after notice to the prosecuting attorney and to counsel for the defendant. [Emphasis added.]

We acknowledge that defense counsel's right to be present at re-instruction of the jury includes the right to participate, to place objections on the record, and to make full argument as to the reasons the jury's request should or should not be honored. Ivory v. State, 351 So.2d 26, 28 (Fla.1977). However, although the trial judge violated the rule when he failed to give defense counsel the opportunity to be heard, we find such error to be harmless.

Initially, we distinguish those cases that hold per se...