Morgan v. State

• Decision Date: 25 June 1985
• Docket Number: No. 82-2381,82-2381
• Citation: 471 So.2d 1336,10 Fla. L. Weekly 1574
• Parties: 10 Fla. L. Weekly 1574 Stanley MORGAN a/k/a Frank Holidaye, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1336

471 So.2d 1336

10 Fla. L. Weekly 1574

Stanley MORGAN a/k/a Frank Holidaye, Appellant, v. The STATE of Florida, Appellee.

No. 82-2381.

District Court of Appeal of Florida Third District.

June 25, 1985.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before NESBITT and DANIEL S. PEARSON, JJ. and DELL, JOHN W., Associate Judge.

NESBITT, Judge.

Morgan appeals the denial of his motion for relief from conviction for first-degree murder made pursuant to Florida Rule of Criminal Procedure 3.850.

In Morgan v. State, 414 So.2d 233 (Fla. 3d DCA 1982), this court reversed a summary denial of Morgan's 3.850 motion and remanded for a hearing. The appellant misconstrues that mandate in arguing that it established Morgan's right to a new trial by law of the case. All that was decided in the previous appeal was that Morgan was entitled to an evidentiary hearing. It was for the trial court to decide, after hearing, whether Morgan had a right to a new trial. That question was decided adversely to appellant. We affirm.

During deliberations in this case, the jury sent out two requests. Counsel for the state and the defendant were consulted before any response was made. The first request, that all the physical evidence be sent to the jury, was made orally and was granted. The second request was a written one indicating the need for "an interpretation of the law as to what constitutes the difference between first degree and second degree murder." The trial judge, with the concurrence of both counsel, responded in writing that "the jury should rely on the instructions already furnished."

Appellant claims that the trial court erred by responding to the jury's request for evidentiary material and reinstruction outside of his presence. Florida Rule of Criminal Procedure 3.400(d) ¹ controls situations in which the jury is provided with items previously introduced into evidence. The rule does not require the presence of either counsel or the defendant. Fla.R.Crim.P. 3.400(d); Turner v. State, 431 So.2d 328 (Fla. 3d DCA), review denied, 438 So.2d 834 (Fla.1983). Since only previously admitted evidence was provided to the jury, there was clearly no error.

The second question for consideration is whether the defendant's presence is required when the court, with the agreement of both counsel, in effect, denies a request for additional instructions. Florida Rule of Criminal Procedure 3.410 ² addresses the issue and requires, before a response is made to the jury, that both the prosecuting attorney and defense counsel be notified. The literal terms of the rule were complied with in this case. However, in Ivory v. State, 351 So.2d 26 (Fla.1977), the supreme court appeared to add the additional requirement that the defendant be present when any response is made by the court to the jury. The court also apparently established a per se reversible error rule for violations of the requirements. ³ In cases subsequent to Ivory, however, the supreme court has receded from the per se standard, finding reversible error only when the defendant is prejudiced. In Francis v. State, 413 So.2d 1175 (Fla.1982), a portion of the voir dire was conducted outside the defendant's presence. While the case involved a violation of Florida Rule of Criminal Procedure 3.180(a)(4), that rule, like Ivory, requires the defendant's presence. It is unquestionably more important that a defendant be present during voir dire than during a conference on the jury's request for additional instructions. A defendant can be of much greater assistance to himself, and his counsel, in selecting a jury than in discussing jury instructions. Yet, in Francis, the supreme court conducted a harmless error inquiry. The court decided it could not assess the extent of prejudice to Francis and, therefore, found the error was not harmless. The fact that a harmless error inquiry was made, however, is instructive.

In Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), the trial judge decided, sua sponte, to give an additional jury instruction. He gave the instruction without prior notice to the prosecuting attorney and defense counsel. ⁴ The supreme court, in an opinion which glaringly fails to mention Ivory, found the error to be harmless. Rose may be explained by the fact that the communication between judge and jury, which is the focus of Ivory, occurred in everyone's presence. Consequently, there was an opportunity for objection at the time of the instruction, if not before. Still, reading Francis and Rose together, we conclude that violations of rule 3.410 are subject to the harmless error rule. ⁵ Other district court opinions have recognized the supreme court's retreat from the per se rule in Ivory. Williams v. State, 468 So.2d 335 (Fla. 1st DCA 1985); Curtis v. State, 455 So.2d 1090 (Fla. 5th DCA 1984); Villavicencio v. State, 449 So.2d 966 (Fla. 5th DCA), review denied, 456 So.2d 1182 (Fla.1984); State v. Prieto, 439 So.2d 288, 290 (Fla. 3d DCA 1983) (Judge Ferguson concurring), review denied, 450 So.2d 488 (Fla.1984).

In this case, the trial court, with the agreement of both counsel, denied the jury's request for additional instructions by telling them to rely on the written instructions already provided. If this response outside the defendant's presence was error at all, it was harmless. ⁶

Finding no prejudice, we affirm.

DELL, JOHN W., Associate Judge, concurs.

DANIEL S. PEARSON, Judge, concurring.

I believe that the holding in this case can and should be that where the trial court affords counsel for the defendant and the prosecutor an opportunity to be heard before denying a deliberating jury's request for additional instructions, the defendant's presence at the discussion of the action to be taken on the jury's request may be waived, as it was here, by his attorney. While, unlike the majority, I believe that Ivory remains afloat despite persistent rumors of its scuttling, I do not think anything said in Ivory precludes the holding I suggest.

I.

As we know, during deliberations in this case, the jury requested, inter alia, "an interpretation of the law as to what constitutes the difference between first-degree and second-degree murder." Before responding to this request, the trial court consulted with the prosecutor and defense counsel and, with the concurrence of both, responded by sending a note to the jury room which stated that "the jury should rely on the instructions already furnished." ¹ The defendant did not attend the proceedings when the jury request was conveyed, when the trial court and counsel conferred, or when the trial court responded to the jury. Defense counsel expressly waived the appearance of the defendant at these times.

One of the defendant's claims on appeal is that the trial court erred by considering and denying the jury's request for reinstruction outside of the defendant's presence. Although the majority rejects this claim, it does so by reasoning that the defendant's presence is required only when the jury is actually recalled for additional instructions and not when a request is denied, but even if, arguendo, the defendant's absence was error, that error may be deemed harmless in light of the fact that the Florida Supreme Court has receded from, if not overruled, the per se reversible rule of Ivory.

II.

By its express terms, Ivory involved a violation of Florida Rule of Criminal Procedure 3.410. That procedural rule provides that if the jurors, while deliberating, "request additional instructions or to have any testimony read to them," notice must first be given "to the prosecuting attorney and to counsel for the defendant." The deliberating jurors in Ivory, through notes to the trial judge, requested, among other things, "the brief definitions of third-degree murder and the various types of manslaughter." Id. at 27. Without notifying the defendant or his counsel, or the prosecuting attorney, the court determined not to give the requested additional instructions.

Before Ivory, one might have reasonably questioned what Rule 3.410 had to do with a refusal to reinstruct. Although the rule provides that an additional instruction shall be given only after notice, it says nothing of giving notice to the prosecutor and defense counsel where the trial court determines not to reinstruct. Indeed, the comment to the rule points even more forcefully to the conclusion that notice to the prosecutor and defense counsel is not required where the trial court decides not to accede to the jury's request:

"If an additional requested instruction is given ... notice must be supplied to counsel for both the prosecution and the defense as emphasized in Smith v. State, 1957, 95 So.2d 525."

(emphasis supplied).

Yet despite the plain language of the rule and the comment, the court in Ivory quite clearly declared that "it is prejudicial error for a judge to respond to a request from the jury without the prosecuting attorney, the defendant, and the defendant's counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury's request," and "[t]his right to participate includes the right to place objections on the record as well as the right to make full argument as to the reasons the jury's request should or should not be honored." Id. at 28 (emphasis supplied). Therefore, I think it inescapable, despite district court opinions to the contrary, see, e.g., Curtis v. State, 455 So.2d 1090 (Fla. 5th DCA 1984); Smith v. State, 453 So.2d 505 (Fla. 4th DCA 1984); State v. Prieto, 439 So.2d 288, 290 (Fla. 3d DCA 1983) (Ferguson, J., concurring), rev. denied, 450 So.2d 488 (Fla.1984), that Ivory expressly holds that the notice requirement of Rule 3.410 is activated when the request for additional instructions is made,...