State v. Merricks, No. SC01-1906.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 831 So.2d 156
• Parties: STATE of Florida, Petitioner, v. Adolphus MERRICKS, Respondent.
• Docket Number: No. SC01-1906.
• Decision Date: 24 October 2002

831 So.2d 156

STATE of Florida, Petitioner,
v.
Adolphus MERRICKS, Respondent

No. SC01-1906.

Supreme Court of Florida.

October 24, 2002.

831 So.2d 157

Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Petitioner

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Respondent.

PER CURIAM.

We have for review Merricks v. State, 793 So.2d 119 (Fla. 2d DCA 2001), wherein the district court certified the following question to be of great public importance:

IS A BAILIFF'S OFF THE RECORD ANSWER TO A JURY'S QUESTION AN ERROR REQUIRING PER SE REVERSAL OR MAY IT BE SUBJECTED TO A HARMLESS ERROR ANALYSIS UNDER STATE V. DIGUILIO, 491 So.2d 1129 (Fla.1986)?

Id. at 121. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As phrased, however, we find the scope of the certified question overly broad.¹ Thus, to more accurately reflect the issue presented in this case, we rephrase the certified question to read:

WHETHER A BAILIFF'S OFF THE RECORD, SUBSTANTIVE RESPONSE TO A JURY'S REQUEST DURING DELIBERATIONS FOR ADDITIONAL INSTRUCTIONS OR FOR TESTIMONY TO BE READ BACK IS AN ERROR SUBJECT TO A HARMLESS ERROR ANALYSIS UNDER STATE V. DIGUILIO, 491 So.2d 1129 (Fla.1986).

For the reasons that follow, we answer the certified question, as rephrased, in the negative and approve the Second District's decision.

831 So.2d 158

PROCEEDINGS TO DATE

Respondent, Adolphus Merricks, was convicted for sexual battery and attempted sexual battery. On appeal, Merricks argued that the trial court erred in denying his motion for mistrial based upon an improper and unauthorized communication between a bailiff and the jury during jury deliberations. The Second District summarized the pertinent facts:

After the jury retired to deliberate, a juror stuck his head out of the jury room and told the bailiff that the jury would like to have some of the testimony read back. Before the bailiff could do anything in response, another bailiff told the jury, "You'll have to rely on your memories," and shut the door. Upon being notified of what had transpired, the trial judge asked a bailiff to have defense counsel and the prosecutor gather in the courtroom so that he could advise them of the interaction between the bailiff and the juror. The bailiff returned approximately one minute later and advised the judge that the jury had announced that they had reached a verdict.

Before receiving the jury's verdict, the judge discussed the incident with defense counsel and the prosecutor. The judge acknowledged that the bailiff's communication with the juror was improper but told counsel that he, in all likelihood, would have given the same response. The prosecutor did not object to the improper communication and argued that the error was harmless. Defense counsel, however, objected and moved for mistrial. The trial court found that the communication was inadvertent and was done without the knowledge of the court or anyone else, and that the jury advised the bailiff that it had reached a verdict immediately after it was given the response by the bailiff. The trial court then concluded that, based on these circumstances, any error involved would not be prejudicial to Merricks and denied the motion for mistrial.

793 So.2d at 120. The Second District reversed, concluding that a mistrial should have been granted because the communication with the jury violated Florida Rule of Criminal Procedure 3.410, which provides:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

The district court recognized that under this Court's holding in Ivory v. State, 351 So.2d 26 (Fla.1977), a violation of rule 3.410 must ordinarily be treated as per se reversible error. Distinguishing Thomas v. State, 730 So.2d 667 (Fla.1998), wherein this Court found a rule 3.410 violation was not reversible error because defense counsel communicated his acceptance of the procedure employed by the trial judge when given an opportunity to object, the district court noted that Merricks' trial counsel specifically objected to the improper communication and moved for mistrial. Based on these facts, the Second District concluded that reversible error occurred and remanded for a new trial. See Merricks, 793 So.2d at 121. However, in light of a dissenting opinion by one of the panel members, the Second District certified the question set forth above as a matter of great public importance.

831 So.2d 159

ANALYSIS

In Ivory v. State, 351 So.2d 26 (Fla. 1977), this Court held that a violation of rule 3.410 constitutes per se reversible error, stating:

We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and 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.

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