Strachan v. State, 4D18-868

Decision Date02 October 2019
Docket NumberNo. 4D18-868,4D18-868
Citation279 So.3d 1231
Parties Christopher STRACHAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Antony P. Ryan, Regional Counsel and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

Gerber, J.

The defendant appeals from his convictions for aggravated battery as a lesser included offense of attempted first degree murder, simple battery as a lesser included offense of domestic battery by strangulation, and simple battery, all allegedly committed upon his live-in girlfriend. The defendant argues the trial court erred in four respects: (1) instructing that the jury-requested audio playback of the girlfriend's testimony occur in the jury room, instead of in open court in the presence of all parties as Florida Rule of Criminal Procedure 3.410(a) requires; (2) unreasonably limiting the defendant's voir dire of potential jurors; (3) sustaining the state's hearsay objection to the girlfriend's allegedly threatening text message, which the defendant argues was not offered for the truth of the matter asserted, but to show the effect on the defendant as the text message's recipient; and (4) failing to instruct the jury that the justifiable use of deadly and non-deadly force instructions applied to lesser-included offenses.

We reverse on the first two arguments. Because the third and fourth arguments may recur in a new trial, we address those arguments as well.

1. Playing Back Testimony in Violation of Rule 3.410(a)

On the defendant's first argument, the state concedes error, and the parties agree that the remedy for such error is to reverse and remand for a new trial. We agree with the concession of error and the remedy.

Florida Rule of Criminal Procedure 3.410(a) states:

If, after [the jurors] have retired to consider their verdict, jurors request additional instructions or to have any testimony read or played back to them[,] they may 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 or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant. All testimony read or played back must be done in open court in the presence of all parties. In its discretion, the court may respond in writing to the inquiry without having the jury brought before the court, provided the parties have received the opportunity to place objections on the record and both the inquiry and response are made part of the record.

(emphasis added).

Despite rule 3.410(a)'s plain language, the trial court, after granting the jurors' request to hear audio playback of the girlfriend's testimony, told the parties it would not be having the testimony played back in open court in the presence of all parties. The trial court stated:

THE COURT: ... I'm going to let them listen to it, but we're not going to be here. [The courtroom] is going to be their jury deliberation room. I'm shutting the door. Everyone's leaving. Deputies will be outside. [The jurors] can do what they want, but we're not going to be here sitting in here listening to this testimony.
....
[The jurors] can say whatever they want to each other during the playback. I mean, it's done all the time.
....
[I]t's just like sending a tape back to the jury deliberation room that they listen to, when you used to send videos back with TVs that people could actually play other than what we have today. You know, you give them the courtroom, it's the same exact thing. But we don't listen to their deliberations. And you don't get to. And there's no problem with it, there's no issue with it ....

Defense counsel objected, arguing that the trial court and the parties should listen to the playback along with the jury in the courtroom. The trial court overruled the defense objection.

When technical difficulties prevented the audio playback from being played over the courtroom's audio system, the trial court directed court staff to bring a CD of the requested playback to the courtroom, and the jury was returned to the deliberation room. The trial court then left the bench. When court staff brought the CD to the courtroom, the trial court did not return to the bench. Instead, the trial court's judicial assistant came into the courtroom, and the following exchange occurred:

JUDICIAL ASSISTANT: [The trial court] said to go ahead and put [the CD] back in the jury room and press play.
DEFENSE COUNSEL: Well, we object to that. I think [the trial court is] going to have to come back out.
JUDICIAL ASSISTANT: [The trial court] said she's not coming back out. And you can put your objection on the record.
DEFENSE COUNSEL: ... [W]e object to the playback being put in the room with the jury, the same as we would object to the playback happening in the courtroom locked with nobody else present ....

Defense counsel was correct, and the trial court was mistaken. The trial court's mistake appears to have been based on its confusion regarding a jury's ability to view recorded evidence in a closed deliberation room, versus a jury's ability to hear recorded testimony , the playback of which "must be done in open court in the presence of all parties" as rule 3.410(a) plainly provides.

Based on the foregoing, the proper remedy is a new trial. See Bryant v. State , 656 So. 2d 426, 429 (Fla. 1995) ("[T]he presence of a judge during trial is a fundamental right. Thus, the trial court's absence during the readback of testimony without a valid waiver [of the judge's presence by the defendant] constitutes reversible error.") (internal citation and quotation marks omitted); Maldonado v. State , 634 So. 2d 661, 662-63 (Fla. 5th DCA 1994) (trial court committed fundamental error when, in response to jury's request to hear testimony of witnesses, court allowed court reporter to read testimony to jury in jury room, outside the presence of the trial court, counsel, and the defendant); Glee v. State , 639 So. 2d 1092, 1093 (Fla. 4th DCA 1994) ("[T]his issue is not susceptible to a harmless error test.").

2. Unreasonably Limiting the Defendant's Voir Dire of Jurors

The trial court's predecessor entered a scheduling order providing that the state and defense would each be allotted forty-five minutes for voir dire examination. The predecessor court added a note stating: "If either side needs additional time, counsel may approach the bench and indicate what important topics and/or questions relating to the juror's qualifications to serve have not been reached and the amount of time desired to accomplish those goals. The Court will then address those request(s)."

Defense counsel filed a written objection, indicating the defense expected to need more time given the charges and the evidence in the case.

At the trial, the trial court asked all of the potential jurors standard biographical questions, as well as group questions regarding the presumption of innocence, the right to remain silent, and their experience and attitudes regarding domestic violence and law enforcement. The trial court followed up if certain answers raised any questions about the potential jurors' ability to follow the law and serve fairly and impartially.

The state followed. The state's voir dire also focused on the potential jurors' experience and attitudes regarding domestic violence. The state also explored the potential jurors' understanding of the legal definitions of premeditation and self-defense. When the courtroom clerk called "time" at the end of the state's forty-five minutes, the trial court, without the prosecutor having first asked for more time, offered to the prosecutor, "If you need a little bit more time, I'll give the Defense more time too." When the prosecutor responded, "just a little bit," the trial court replied, "I'll give you ten more minutes, is that okay?" The prosecutor responded, "That should be fine." The state concluded its voir dire in the additional ten minutes, which coincided with the end of that day's proceedings.

During defense counsel's allotted fifty-five minute voir dire the following morning, defense counsel efficiently asked potential jurors about a range of topics related to their ability to serve fairly and impartially and follow the law. For example, defense counsel asked individual potential jurors about their personal experiences with domestic violence, which included many potential jurors. Defense counsel asked the potential jurors whether they could set aside their personal experiences to give the defendant a fair trial. Defense counsel also asked potential jurors if they could follow and apply the Stand Your Ground law even if they did not agree with the law. Defense counsel also asked potential jurors if they could treat men and women equally as it relates to self-defense jury instructions, and follow the court's instructions on weighing the credibility of witnesses.

When the courtroom clerk called "time" at the end of defense counsel's fifty-five minutes, the court asked the prosecutor and defense counsel to approach the bench. Defense counsel again objected to the imposed time limit, and articulated the grounds which defense counsel still wanted to cover with the potential jurors. For example, defense counsel stated he had not finished asking jurors about weighing the credibility of witnesses, the presumption of innocence, the burden of proof, and the right to remain silent. Defense counsel also stated he intended to ask jurors about a few other topics specific to this case, including any difficulty viewing photos of the girlfriend's injuries.

The trial court denied the defendant's request for any additional time. The trial court stated, in pertinent part:

...

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4 cases
  • Puy v. State
    • United States
    • Florida District Court of Appeals
    • April 15, 2020
    ...statutes have similarly held that whether a statement is a threat is a question of fact for the jury. See Strachan v. State , 279 So. 3d 1231, 1238 (Fla. 4th DCA 2019) ("Even if the trial court did not understand the third text to be a threat, that was a question for the jury, not the trial......
  • Wright v. State
    • United States
    • Florida District Court of Appeals
    • April 1, 2020
    ...of the trial court's presence during read-back. See e.g., Bryant v. State, 656 So. 2d 426, 428–29 (Fla. 1995) ; Strachan v. State, 279 So. 3d 1231, 1234 (Fla. 4th DCA 2019) (holding a jury's ability to hear recorded testimony must be done in open court in the presence of all parties as rule......
  • Guy v. State
    • United States
    • Florida District Court of Appeals
    • December 18, 2019
    ...of the use, by the attorneys, of the time allotted." Id. (citation and quotation marks omitted).Very recently, in Strachan v. State , 279 So.3d 1231 (Fla. 4th DCA 2019), we reversed in part based on our conclusion that the trial court "unreasonably limited the defendant's voir dire of poten......
  • Cassaday v. State
    • United States
    • Florida District Court of Appeals
    • January 15, 2020
    ...of voir dire, nor is it an appropriate use of the amount of time provided for voir dire." Id. This case is unlike Strachan v. State , 279 So. 3d 1231, 1236 (Fla. 4th DCA 2019), where the defense counsel did not primarily use voir dire to "pre-try" the case, but rather used the time allotted......
4 books & journal articles
  • Preliminaries
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...imprint the jury, but rather that you seek information beyond that acquired by the court. CASES STATE CASES FLORIDA Strachan v. State , 279 So. 3d 1231 (Fla. Dist. Ct. App. 2019). In a prosecution for attempted murder, domestic battery by strangulation, and lesser included offenses, the tri......
  • The trial (conduct of trial, jury instructions, verdict)
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...of all parties.” Error to permit playback of audio to witness’ testimony in the jury room and not in open court. Strachan v. State, 279 So. 3d 1231 (Fla. 4th DCA 2019) Only playing back direct exam portion of victim’s testimony without playing back relevant cross-exam portion is reversible ......
  • Evidence
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    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...Defendant offered the text not to prove the truth of the matter asserted but for its effect on him as the recipient. Strachan v. State, 279 So. 3d 1231 (Fla. 4th DCA 2019) A confidential informant working under the supervision and direction of an investigating law enforcement agency is an a......
  • The Preservation of Error During Voir Dire.
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    • Florida Bar Journal Vol. 94 No. 6, November 2020
    • November 1, 2020
    ...Gosha v. State, 534 So. 2d 912 (Fla. 3d DCA 1988). (50) Guy v. State, 287 So. 3d 620, 624 (Fla. 4th DCA 2019). (51) Strachan v. State, 279 So. 3d 1231, 1237 (Fla. 4th DCA 2019); Thomany, 252 So. 3d at (52) Watson v. State, 693 So. 2d 69 (Fla. 2d DCA 1997) (noting that counsel did not object......

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