Myers v. State
| Decision Date | 18 December 1986 |
| Docket Number | No. BL-296,BL-296 |
| Citation | 12 Fla. L. Weekly 102,499 So.2d 895 |
| Parties | 12 Fla. L. Weekly 102 Paul MYERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender; Ann Cocheu, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen.; Maria Ines Suber, Asst. Atty. Gen., for appellee.
Myers appeals his conviction and sentence for attempted burglary of a dwelling, raising three issues for our consideration: (1) whether the trial court erred in permitting one of the jurors to take notes during the trial for use in the jury room; (2) whether the trial court erred in failing to require corroboration of statements contained in Myers' presentencing investigation report; and (3) whether the trial court made the requisite factual findings pursuant to Section 775.084, Florida Statutes (1983), to support a habitual felony offender determination. We find no error and affirm.
Myers was charged with attempted burglary of a dwelling with the intent to commit an offense therein and proceeded to a jury trial on 17 December 1985. After opening statements, Myers objected to one of the jurors taking notes. The objection was overruled. Following the State's case, Myers again objected to the note-taking and moved for a mistrial on this ground. The trial court denied the motion and Myers rested his case. He was convicted of the crime charged.
Thereafter, the State filed a notice to seek sentencing of Myers as a habitual offender. Accordingly, the trial court ordered a presentencing investigation report (PSI) be performed. At the sentencing hearing, the State submitted an affidavit from the Florida Department of Corrections which stated Myers had been released from custody on 25 June 1985. Myers objected to the affidavit and to the judgments alleged to be his on the grounds that they were hearsay. He requested direct evidence and fingerprint identification. The trial court overruled Myers' objection and noted he had the burden to contradict or dispute the PSI report by bringing forth evidence.
The trial court declared Myers to be a habitual offender, providing a written order to that effect, and sentenced him to ten years of incarceration. Myers' sentencing guideline scoresheet showed a recommended term of imprisonment of 27-40 years. This timely appeal then ensued.
Myers contends the trial court's failure to stop the note-taking of one juror, its failure to provide some instruction as to the proper role of note-taking, and its failure to stop the juror from taking his notes into the jury room during deliberations was an abuse of discretion. However, the Florida Supreme Court in Kelley v. State, 486 So.2d 578 (Fla.1986), held that it is within the discretion of the trial court to allow a jury to take notes and to use those notes in the deliberation process. Implicitly, this ruling allows notes made by a juror to be taken into the jury room, as was done here.
The problem in the present case is that the trial court provided no instructions whatsoever to the jury on the proper use of notes during their deliberations. Nonetheless, we find no error. While it is the better practice for a trial court to explain to the jury the proper use of notes during deliberations, when a defendant does not request such an instruction, any failure to so instruct can only be reversible error if it amounts to plain error. United States v. Rhodes, 631 F.2d 43 (5th Cir.1980). As in Kelley v. State and United States v. Rhodes, Myers did not request specific instructions be given on the proper role of note-taking.
On appeal, Myers makes the additional argument that allowing a juror to take personal notes into the jury room is violative of Fla.R.Crim.P. 3.400, which lists those items which may be taken by a jury into the jury room. Interestingly, Kelley v. State made no mention of Rule 3.400. However, at no time during the trial below did Myers raise this specific contention. Therefore, we find this argument is not cognizable on appeal. Steinhorst v. State, 412 So.2d 332 (Fla.1982) (). We would also point out that a violation of Rule 3.400 does not automatically require a reversal. Rather, the noncompliance must result in error so prejudicial as to vitiate the entire trial. Strickland v. State, 447 So.2d 322 (Fla. 1st DCA 1984), pet. for rev. den., 455 So.2d 1033 (Fla.1984) ().
At trial, it was Myers' position that his PSI report constituted hearsay inasmuch as the documents it contained did not establish he was the Paul Myers in question. At no time, however, did Myers dispute the truth of the information contained in the affidavit by the custodian of records or the court certified copies of judgment. In fact, when the prosecutor below stated to the...
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