Rodriguez v. State, 83-2066

• Decision Date: 15 January 1985
• Docket Number: No. 83-2066,83-2066
• Citation: 10 Fla. L. Weekly 199,462 So.2d 1175
• Parties: 10 Fla. L. Weekly 199 Orestes RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1175

462 So.2d 1175

10 Fla. L. Weekly 199

Orestes RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.

No. 83-2066.

District Court of Appeal of Florida Third District.

Jan. 15, 1985.

Rehearing Denied Feb. 19, 1985.

Jon W. Burke and Linda Dakis, Miami, for appellant.

Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.

Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

Orestes Rodriguez was found guilty by a jury of murder in the first degree. He alleges as error the trial court's failure to use the jury deadlock instruction approved by the Florida Supreme Court. ¹ Because we agree the deadlock charge actually given constituted fundamental error, we reverse and remand for a new trial.

This case was tried to a jury for a one-week period and was submitted late Friday afternoon. Following five hours of deliberation the jury reported a deadlock. The trial court, in the presence of the jury, indicated that five hours was an insufficient amount of time and that he could not "possibly consider this being a hung jury." The jurors were instructed to return to court the following morning at 10:00 a.m. to resume deliberations. The jury returned Saturday morning and deliberated until 4:10 in the afternoon. At that time, the trial court gave the following charge to the jury: ²

THE COURT: Let's have it quiet in the courtroom, please.

Ladies and gentlemen of the jury I want you to listen very carefully and listen to what I say and clear your minds at this moment.

I want you to know that everything that you are doing right now is appreciated and don't think that it is not. I am not trying to cite you. I just want you to know we have all been through a lot together, all of us. We haven't been through what you are going through, but that is not our function. We all appreciate it.

Your job is two fold in this case. The first aspect of this case is to listen and ladies and gentlemen I can't ask for any more than that, what you have done, but the second aspect is the critical aspect and that is for you people to reach a verdict.

Two things have been asked, one has been performed thus far. Then we know what you're going through. We do appreciate it. I want you to understand. I want to stress that everybody in this courtroom we've been together a rather long time now. What this involves, ladies and gentlemen, is a melting of divergent backgrounds and personalities into one decision. It sounds simple, it's not but that is what it is. You must bring yourselves together to reach a verdict, ladies and gentlemen, not to fragment and split apart, because ultimately what it comes out is 12 heads into one, 12 mouths into one to speak that verdict that we are all looking for. I hope you all realize that, ladies and gentlemen.

I did some computation that are [sic] absolutely staggering on this matter. To me it is staggering. We have in excess of 62 hours. My computation is 62 hours of trial time involved here. Now I am counting two alternate jurors that we dismissed and I am taking 12 of you and I am multiplying that 62 hours. I come out with 724. Let's call it man hours that you people have invested in this trial. Then you take myself, the judge, with my secretary two hours and the attorneys, the translators, the court clerk, the court reporter, everybody involved in this trial. We are over--well over a thousand hours here in this trial invested. Your particular hours invested in this matter will amount to 40 hour week. If you're talking a great sum two months of working that's what we have invested in this trial.

Ladies and gentlemen, last night there was a message that we were a hung jury. I never had a hung jury and I don't want to accept that aspect. So I allow that out to you now so that you will understand that I know that you people can reach a verdict. Now I am going to give you a personal philosophy. I sat as judge in County Court and I have been in the Circuit Court as judge. I have handled and made decisions in well over 30,000 cases. That is a lot of work, ladies and gentlemen. A lot of decisions that I made I've gone home and I've gone to sleep and I have gotten up the next day feeling good about my past and continuing on with making these decisions.

Ladies and gentlemen you can make a decision in this case. I know that you can do it, because regardless of everything that took place before and everything that is going to take place when you go back into that room at this trial, ladies and gentlemen, is you. It's nothing else. It is out of our hands. It is out of our control and it only amounts to you people melting your minds and personalities into one to reach a verdict. I have faith in you, ladies and gentlemen. I know you can do it. It was never promised it would be an easy road. You know what we went through before the trial was over in presentation.

Ladies and gentlemen you have so much invested in this. I have so much invested in this. We all have so much invested in this. We can't do without you. I can't put it in any clearer way, any better way, but I do know that a verdict can be reached. There are trials that go on all day long, you're not involved. They do happen everything is important, but ladies and gentlemen the most important aspect right now at this time is you to set aside egos and personalities that are separating and melt them together into one cozy--together unite. I hope that I am clear.

Bill, if you will take them back into the jury room, please.

Please try if possible to deliberate a little harder, I guess. Thank you all very much.

Following the charge the jury retired and, twenty minutes thereafter, delivered a verdict of guilty.

The state argues that the giving of the instruction did not constitute reversible error because (1) the instruction amounted to nothing more than a "pep talk," and (2) the defendant's failure to object constitutes a waiver for the purposes of appeal. The state's first position is without merit. The instruction given in the instant case was not the "balanced" type approved by the Florida Supreme Court in State v. Bryan, 290 So.2d 482 (Fla.1974). See also Gardner v. State, 405 So.2d 470 (Fla. 3d DCA 1981). Rather, the instruction could have only led the jurors to believe that they were required to return a verdict, thereby prejudicing the defendant's right to a hung jury. Bryan, 290 So.2d at 484; Nelson v. State, 438 So.2d 1060 (Fla. 4th DCA 1983) (jury instruction which made it appear that unless a verdict was reached great waste would occur and the court's confidence in the jury's common sense would be betrayed constituted reversible error); Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976); Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975); Lee v. State, 239 So.2d 136 (Fla. 1st DCA), cert. denied, 240 So.2d 642 (Fla.1970).

In support of its second position the state relies upon Tejeda-Bermudez v. State, 427 So.2d 1096 (Fla. 3d DCA 1983); Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980); and Armstrong v. State, 364 So.2d 1238 (Fla. 1st DCA 1977), cert. denied, 373 So.2d 456 (Fla.1979). The state's reliance upon these cases is misplaced. Armstrong holds that the giving of an approved deadlock instruction before a jury impasse is indicated is not fundamental error. Tejeda-Bermudez holds that requiring a jury to continue to deliberate after reporting a deadlock is not error. We deem it significant that the deadlock instructions given in Armstrong and Tejeda-Bermudez were of the "balanced" type approved by the Florida Supreme Court. ³ In the instant case, the trial court deviated substantially from the approved deadlock charge, and no subsequent curative instruction could have removed from the jurors' minds the belief that they were required to reach a verdict.

The issue of whether a manifestly coercive deadlock charge is fundamental error appears to be a question of first impression in this state. ⁴ In Nova v. State, 439 So.2d 255, 262 (Fla. 3d DCA 1983), this court stated:

Error which is said to be fundamental is, among others, one which "reaches down to the legality of the trial itself," Hamilton v. State, 88 So.2d 606, 607 (Fla.1956); Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967); involves a violation of a defendant's rights which "will always be harmful, and it is very difficult for a court to determine when it is not," Demps v. State, 416 So.2d 808, 810 (Fla.1982), quoting United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir.1979); in short, one that goes to the essence of a fair and impartial trial, State v. Jones, 377 So.2d 1163 (Fla.1979); Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972). Because "[t]he right of an accused to a trial by jury is one of the most fundamental rights guaranteed by our system of government," Floyd v. State, 90 So.2d 105, 106 (Fla.1956), and is the cornerstone of a fair and impartial trial, Florida Power Corporation v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967), an infringement of that right constitutes a fundamental error.

Based upon the discussion that follows we conclude that the trial court's error "[went] to the essence of a fair and...