Thomas v. State
Decision Date | 04 September 1998 |
Docket Number | No. 91719.,91719. |
Citation | 730 So.2d 667 |
Parties | Shawn THOMAS, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida Supreme Court |
Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Respondent.
We have for review Thomas v. State, 700 So.2d 734 (Fla. 1st DCA 1997), based on conflict with Ivory v. State, 351 So.2d 26 (Fla.1977). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Shawn Thomas was tried for the sale and possession of cocaine. The following colloquy occurred between the court and counsel shortly before the jury returned a guilty verdict:
Bring the jury back.
Thomas argued on appeal that the trial court violated Florida Rule of Criminal Procedure Rule 3.4101 and that such a violation was per se reversible error pursuant to Ivory v. State, 351 So.2d 26 (Fla.1977), wherein this Court stated:
Id. at 1008 (quoting Colbert, 569 So.2d at 435). We noted that an opportunity to contribute after the instruction has been given is insufficient because "[i]t is unrealistic to believe a judge would be equally willing to encompass defense counsel's suggestions in both situations [before and after the fact], and it is impossible to tell how the judge would have reacted to counsel's suggestions had they been made before the question was answered." Mills, 620 So.2d at 1008.
In the present case, the First District Court of Appeal affirmed the convictions, reasoning thusly:
Although such a violation of rule 3.410 would ordinarily constitute per se reversible error under Ivory v. State, 351 So.2d 26 (Fla.1977), here we conclude that the appellant's trial counsel affirmatively waived the issue by communicating to the trial judge his acceptance of the procedure employed when later given an opportunity to object.
Thomas, 700 So.2d at 734-35. We agree. The per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.3 Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered waived.4
In the present case, defense counsel told the judge he had no objection—thus, the rule 3.410 violation was not reversible error. Accordingly, we approve the decision below.
It is so ordered.
I respectfully disagree that defense counsel's after-the-fact acquiescence to a patently impermissible procedure constitutes an effective waiver of a defendant's fundamental right to be present when the judge communicates with the jury. This right includes a defendant's right to participate in framing a proper response to a jury's question before that question is answered.
The impermissible communication in this case took place shortly after the jury retired to the jury room. Instead of first summoning the defendant, defense counsel, and the assistant state attorney to participate in a discussion regarding the jury's question, the trial judge simply improperly directed the bailiff to respond to the jury's question.
The trial court then waited until shortly before the jury returned from deliberation, and apparently after the jury had reached a verdict, to inform the state and defense counsel of what occurred shortly after the jury retired. There is no explanation in the record why the trial court violated the proper procedure or why the trial court delayed advising counsel what had transpired. There is also no contemporaneous record of the jury's question, the trial judge's instruction to the bailiff, or the bailiff's ex parte communication with the jury.
The State concedes that the trial court violated Florida Rule of Criminal Procedure 3.410 and that the violation of this rule is per se reversible error. As we stated in State v. Franklin, 618 So.2d 171, 173 (Fla.1993):
(Emphasis supplied).
Our approval of the procedure the trial court followed in this case of eliciting input after the fact erodes the prophylactic purpose of the rule that we have previously enunciated. This rule could not be clearer—there shall be no ex parte communications between judge and jury or bailiff and jury before the State and the defendant have an opportunity to participate in the discussion.5 Allowing a trial court or bailiff to communicate ex parte with the jury is fraught with the dangers of unauthorized, unrecorded, substantive communications that we should not endorse. Providing defense counsel an opportunity to place an objection on the record after the fact (and just before the jury returned) did not erase the per se reversible error that occurred in this case.
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Anderson v. State
...the defendant ‘opens the door’ to the error, the appellate court will not consider the error a basis for reversal.”); Thomas v. State, 730 So.2d 667, 668–69 (Fla.1998) ( “Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered wai......
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Lebron v. State
...be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant"); but cf. Thomas v. State, 730 So.2d 667 (Fla.1998) (holding that a rule 3.410 violation was not reversible error where defense counsel indicated acceptance of the procedure emplo......
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Hendricks v. State Of Fla.
...failure to respond in open court is alone sufficient to find error.’ Bradley, 513 So.2d at 114 (citations omitted). In Thomas v. State, 730 So.2d 667, 668-69 (Fla.1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the tr......
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Hendricks v. State, Case No. 1D09-357 (Fla. App. 3/31/2010), Case No. 1D09-357.
...to respond in open court is alone sufficient to find error.' Bradley, 513 So. 2d at 114 (citations omitted). In Thomas v. State, 730 So. 2d 667, 668-69 (Fla. 1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the trial c......