Thompson v. State
| Decision Date | 23 April 1987 |
| Docket Number | No. 68187,68187 |
| Citation | 12 Fla. L. Weekly 204,507 So.2d 1074 |
| Parties | 12 Fla. L. Weekly 204 Dennis Wayne THOMPSON, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, and Richard J. Preira, Sp. Asst. Public Defender of the Law Offices of Weinstein & Preira, Miami Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., and Randi Klayman Lazarus and Richard L. Kaplan, Asst. Attys. Gen., Miami, for respondent.
We have for review Thompson v. State, 480 So.2d 179 (Fla. 3d DCA 1985), because of express and direct conflict with Bova v. State, 410 So.2d 1343 (Fla.1982), and State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
During the trial, the court precluded the defendant from consulting with his counsel during a recess. The district court correctly determined this to be an erroneous deprivation of the defendant's right to counsel. The issue before us is whether the district court applied the appropriate test in determining that this error was harmless.
Dennis Thompson was charged with grand theft and dealing in stolen property. While testifying at trial, Thompson was asked by his lawyer if he had ever before been charged with theft, burglary, or dealing in stolen goods. Thompson answered "no." In fact, Thompson had been arrested for a theft and burglary while out on bond on the instant charges. Thompson's original negative answer was apparently given pursuant to the advice of defense counsel, who erroneously believed that despite his question this arrest could not be the subject of impeachment on cross-examination because it had occurred subsequent to (and therefore not "before") his arrest for the offenses charged in this case.
Prior to cross-examination, the state obtained a recess to research the proper method of impeaching Thompson with this subsequent arrest. During the recess, defense counsel requested the opportunity to consult with his client. The trial judge denied this request because Thompson was "still on the stand." During the subsequent cross-examination on this arrest, unexpected by the defendant and his counsel prior to the recess, Thompson gave an imprecise response to the state's first question regarding the unrelated arrest and then volunteered a summary of the facts surrounding this occurrence for which he had not yet been tried.
In affirming Thompson's conviction, the Third District acknowledged that the trial court erred in precluding the requested consultation, but found the error to be harmless because there was no "cognizable prejudice." Although our decision in Bova held that a harmless error analysis for such an error is required, the district court failed to follow the harmless error test set out in Bova.
In Bova, this Court held that a defendant's right to counsel encompasses the right to consult with his attorney during any trial recess, even if the recess is in the middle of the defendant's testimony. 410 So.2d at 1344. The Bova court, however, then employed the harmless error test set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to the deprivation of that right during a recess. The court reviewed the entire record and found beyond a reasonable doubt that the restraint on defense consultation did not contribute to the jury's verdict.
In the instant case, the district court did not apply the Chapman harmless error test. Instead, the court found the error to be harmless simply "because it resulted in no cognizable prejudice." 480 So.2d at 182. This is not the appropriate standard. As we recently explained in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986), the harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
Applying this test to the facts of this case, we find that the trial court's error in denying attorney-client consultation during the recess in question was not harmless. Thompson's credibility was a crucial issue in his trial. The state was granted a thirty-minute recess for the sole purpose of researching ways to impeach him regarding a subsequent arrest which his lawyer had apparently advised him would be inadmissible. Thus, Thompson was denied the guidance and support of his attorney when he needed it most (i.e., when the state was preparing for a major attack on his credibility). This denial left Thompson nervous, confused, and may have contributed to his performance on cross-examination. We are not in a position to say with any certainty that a consultation with his attorney at this juncture would have made any difference. Had the attorney-client consultation been allowed, defense counsel could have advised, calmed, and reassured Thompson without violating the ethical rule against coaching witnesses. Because of the possible effect of this ruling on the perception of Thompson's credibility and the importance of his credibility to his theory of defense, we cannot say there is no reasonable possibility that the error did not affect the jury verdict. Thus, the error is harmful.
Accordingly, we disapprove the decision of the district court with directions that the case be remanded to the trial court for a new trial.
It is so ordered.
SHAW, J., concurs specially in result only with an opinion.
I concur in result solely because of this Court's holding in Bova v. State, 410 So.2d 1343 (Fla.1982) (Bova II ). Except for Bova II, I would hold that the trial judge was correct in denying defense counsel's request to consult with his client during a brief recess while he was on the witness stand.
Cross-examination is so very critical in our adversary system. It can correctly be characterized as the crucible out of which our system expects the truth to flow. I think there is a delicate balance between a defendant's right to consult with his lawyer while he is on the witness stand, and the right of the state to proceed with its cross-examination of a defendant without the intercession of his counsel. I do not believe defendant had the right to consult with his counsel under the facts of this case, and it is my opinion that the trial judge acted properly. I agree with Justice Shaw that Bova II should be revisited.
It appears clear to me that the defendant wanted to talk to his lawyer not about strategy and tactics of the case in general, but specifically about the facts relating to his cross-examination. When a defendant makes the decision to testify in his own behalf, he knows that he is going to be subject to cross-examination by the state and he should not be permitted to look to his counsel for guidance at this critical juncture in the truth seeking process. That is what cross-examination is all about and it should not be tampered with.
I agree that under these circumstances it was error to restrict consultation with counsel. Because the state has not shown the error to be harmless, it is, therefore, harmful by definition. In my view, however, Bova v. State, 410 So.2d 1343 (Fla.1982) (Bova II ), on which we rely, is analytically flawed in that it contains both incorrect and correct statements of the law. I would take this occasion to clarify and correct Bova II.
In Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980) (Bova I ), a defendant under cross-examination advised the trial court that he was confused and requested a ten-minute recess. Apparently reasoning that the pursuit of truth would be served, the trial court granted a fifteen-minute recess but refused to permit consultation between the defendant and counsel during the recess. The district court of appeal affirmed, reasoning...
To continue reading
Request your trial
-
Jackson v. State
...However, both we and other courts have analyzed partial deprivations under a harmless error standard. See, e.g., Thompson v. State, 507 So.2d 1074, 1075 (Fla.1987) (applying the harmless error test to the deprivation of counsel during a recess); Wilson v. State, 764 So.2d 813, 819 (Fla. 4th......
-
Kingery v. State
...to consult with his attorney during any recess, even if the recess occurs in the middle of the defendant's testimony. Thompson v. State, 507 So.2d 1074, 1075 (Fla.1987); Bova v. State, 410 So.2d 1343, 1344 Nevertheless, we are not prepared to say that a defendant's right to confront adverse......
-
Figueroa-Sanabria v. State
...So.2d at 577 (finding 45 no fundamental error when defense counsel was absent for part of a victim impact statement); Thompson v. State, 507 So.2d 1074 (Fla. 1987) (reviewing for harmless error when defendant was deprived of counsel during a thirty-minute recess); Vileenor v. State, 500 So.......
-
LEERDAM v. State, 2D03-3894.
...counsel to advise, calm, and reassure the defendant without violating the rule against coaching witnesses. Id. (citing Thompson v. State, 507 So.2d 1074, 1075 (Fla.1987)). Thus in Florida, regardless of whether the recess is one hour,2 thirty minutes,3 or ten minutes,4 "to deny a defendant ......
-
Course and conduct of trial
...defendant, the trial court erred in refusing to allow the defendant to consult with his counsel during the recess. Thompson v. State , 507 So.2d 1074 (Fla. 1987). Haskell Co. v. Georgia Pac. Corp. Attorney-client privilege is not waived by a client and his or her attorney conferring during ......