Recinos v. State, 77-1841

• Decision Date: 02 February 1982
• Docket Number: No. 77-1841,77-1841
• Citation: 420 So.2d 95
• Parties: Francisco RECINOS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 95

420 So.2d 95

Francisco RECINOS, Appellant, v. The STATE of Florida, Appellee.

No. 77-1841.

District Court of Appeal of Florida,

Third District.

Feb. 2, 1982.

On Rehearing Oct. 19, 1982.

Bennett H. Brummer, Public Defender and Irv J. Lamel Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, NESBITT and JORGENSON, JJ.

SCHWARTZ, Judge.

The only point raised in this appeal from a second-degree murder conviction challenges the trial court's admonition to defense counsel not to communicate with the defendant during recesses in the course of his testimony. Because the circumstances surrounding the instruction conclusively demonstrate that no reversible or harmful error took place, we reject the contention and affirm.

At the trial, Recinos took the stand in his own behalf, contending that he had committed the homicide in self-defense. In the course of a lengthy bench conference during his direct examination, the following occurred.

MR. HARTMAN [prosecutor]: Judge, I have two objections I would like to have put on the record .... Number two, I would object to Mr. Zenobi speaking to the defendant in the middle of his testimony.

THE COURT: I instructed him, specifically, not to do that.

MR. ZENOBI [defense counsel]: I did not coach my defendant, whatsoever, Judge. He simply--

THE COURT: As far as I am concerned, he is like any other witness on the stand.

I don't want any communication with him during the recesses, while he is testifying.

MR. ZENOBI: There was no instruction to my witness to say anything, and I work through the interpreter, so you can ask the interpreter.

THE COURT: I don't question that. I accept your representation on that. [emphasis supplied]

Subsequent to this colloquy, which itself revealed that defense counsel had indeed spoken with Recinos during the recess, the record contains no request or other reference to any wish by either to communicate further with the other. The court almost immediately adjourned for lunch. Afterwards, the defendant's direct and then cross-examination were completed without interruption or expressed concern about the restriction imposed by the court. Nonetheless, relying on Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), the defendant now argues that the trial court's statement that the defendant "is like any other witness on the stand" who was not to be spoken to during recesses requires a new trial. We disagree.

While the remarks embodied, as Geders and Stripling establish, an erroneous view concerning the defendant's sixth amendment right to the assistance of counsel at all times during trial, they had no practical or prejudicial effect on what actually happened below. This is the case for two separate but interrelated reasons. In the first place, the only recess during which the court's order was at all operative occurred in the middle of the direct examination, when the sole conceivable reason for counsel's communication with the client was what Zenobi himself acknowledged was the improper one of coaching him concerning the questions which were yet to be asked. Hence, the trial court may not be said to have abused its discretion in imposing that limitation. See Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980) (brief recess in midst of cross-examination); cf. United States v. DiLapi, 651 F.2d 140, 149-51 (2d Cir. 1981) (concurring opinion); compare, Geders v. United States, supra (overnight recess between direct and cross-examination); Stripling v. State, supra (lunch recess between direct and cross-examination). ¹

Second, certainly unlike Geders, and apparently unlike Stripling, defense counsel did not proffer or otherwise indicate in any way that he even desired to have a discussion--on any permissible (or impermissible) subject--which was precluded by the order. See generally, Clark v. State, 363 So.2d 331 (Fla.1978); cf. United States v. Allen, 542 F.2d 630, 634 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). It thus appears both that any error was unpreserved and--beyond a reasonable doubt--that it made no difference whatever and was therefore constitutionally harmless. ² Harrington v. California, 395 U.S 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Clark v. State, supra; see United States v. DiLapi, supra, 651 F.2d 148-49 (majority opinion). The trial court's incorrect announcement was thus but a tree falling in the forest which, because its vibrations reached no legal eardrums, must be deemed to have made no legal sound.

Affirmed.

JORGENSON, Judge.

I respectfully dissent.

I see no difference in the facts presented here from those presented in Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), and would consequently reverse.

The Sixth Amendment right to counsel, provided for in the United States Constitution, is embraced in Article I, Sec 16 of the Florida Constitution. The right is that of the accused, not of the attorney. Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1971).

I must take issue with the majority's conclusion that "the sole conceivable reason for counsel's communication with the client ... was the improper one of coaching...." As Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) suggests, there are other ways to deal with the problem of improper coaching. 425 U.S. at 89, 96 S.Ct. at 1335, 47 L.Ed.2d at 600. I also take issue with the proposition that a proffer is required in order to preserve the record regarding attorney-client communications. No proffer was made by the state, as required by Geders/Stripling, that a conference would interfere with the orderly progress of the trial. The resulting prejudice is presumed. Once the court characterized the defendant as being like any other witness and ordered no communication with the defendant during the recess, the Geders/Stripling violation was complete.

The record reflects that prior to the colloquy set forth by the majority, a substantial portion of time was devoted to the trial court's ascertaining how many more witnesses would testify and what measures could be taken to shorten the remaining portion of the defense case. The record further reflects that defense counsel and defendant were being assisted by an interpreter. It would certainly be apropos during a luncheon recess for counsel to explain to his client the reasons certain witnesses were not being called and to explain the events of the bench conference. This is particularly true during a luncheon recess. Since it obviously did not affect the orderly conduct of the trial, the defendant was entitled to his conference. Geders, supra; Stripling, supra.

My brother's reliance on United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981) is, in my view, misplaced. The recess in DiLapi was only of five minutes duration and during the course of cross examination. Thus, the facts and circumstances surrounding DiLapi are closer to Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980), than the case sub judice. If we are to be guided by federal decisions in this area of the law then United States v. Conway, 632 F.2d 641 (5th Cir. 1980) is closer to our facts and has direct application since, in both cases, the recess being discussed is a luncheon recess.

The error complained of is so fundamental that it cannot be characterized as harmless. Geders, supra; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

For the reasons advanced herein, I would reverse on the authority of Stripling v. State, supra, which, in my view, we are bound to follow.

Before BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, PEARSON, FERGUSON and JORGENSON, JJ.

On Rehearing En Banc

SCHWARTZ, Judge.

Upon consideration of this cause after having granted and heard rehearing en banc, we adhere to the panel's determination to affirm the judgment below.

We conceive that our primary task on rehearing is to apply Bova v. State, 410 So.2d 1343 (Fla.1982), which was decided by the supreme court after the panel opinions were released, to the instant case. It is true that by holding that the trial court may not restrict the defendant's access to his attorney during any recess whatever, no matter what its length or occasion, Bova plainly invalidates the first ground of the panel's conclusion. We think, however, that the ultimate result of Bova and the foundation of that ruling just as clearly establish the correctness of the alternative ruling that the trial judge's statement of the law, even though mistaken, does not require reversal.

Bova affirmed the conviction because the error of the lower court in restricting consultation with counsel "over objection," 410 So.2d at 1344, did not result in any prejudice and was therefore "harmless." 410 So.2d at 1345. In so ruling, the court necessarily rejected the principle applied in Gideon and the other authorities in Judge Jorgenson's dissenting opinion, and contrarily held that the access to counsel rule is neither fundamental in the sense that it does not require preservation below, nor prophylactic in that reversal will necessarily follow its violation without reference to ordinary considerations of harmlessness. Compare also, e.g., Richardson v. State, 246 So.2d 771 (Fla.1971) (failure, upon objection, to hold hearing on effect of state discovery violations requires "automatic" reversal); Ivory v. State, 351 So.2d 26 (Fla.1977) (any communication between court and jury in absence of defendant requires reversal even if contents...