Williams v. State

• Decision Date: 15 April 1985
• Docket Number: No. AX-88,AX-88
• Parties: 10 Fla. L. Weekly 967 Ralph Cortez WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 335

468 So.2d 335

10 Fla. L. Weekly 967

Ralph Cortez WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. AX-88.

District Court of Appeal of Florida,

First District.

April 15, 1985.

Rehearing Denied May 23, 1985.

Rhonda S. Martinec, Panama City, for appellant.

Jim Smith, Atty. Gen., Gregory G. Costas, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant seeks review of his conviction of attempted first degree murder with a firearm. He contends the trial judge committed reversible error by refusing the jury's request for a written copy of jury instructions without notifying counsel. We affirm.

After closing arguments, the court gave its instructions and the panel retired for deliberations. Later, through a bailiff, the jury asked the judge to provide a written copy of the instructions. The judge refused, directing the bailiff to inform the jury that he would reread the instructions if so requested. The jury returned its guilty verdict without doing so. Counsel was not notified of the jury's request until after the verdict was rendered.

Appellant contends reversal is required by Isley v. State, 354 So.2d 457 (Fla. 1st DCA 1978). The opinion in that case did agree "that the trial court erred in denying ... the jury's request for a copy of the jury instructions without Isley or his counsel being present or receiving notice." However, because a reversal for new trial was there required on another ground, i.e., error in rejecting an instruction on insanity, the court was not required to consider whether the other error, denial of the jury's request, could be considered harmless, and the opinion makes no reference to that point other than to quote language from Ivory v. State, 351 So.2d 26 (Fla.1977), infra. Isley therefore does not control the state's assertion in the present case that the error, if any, was harmless. We resolve that issue here in favor of affirmance based upon close examination of the controlling rule and precedent.

The Supreme Court opinion in Ivory related to error in granting a jury request for documentary exhibits including one not admitted in evidence, and in denying a copy of instructions also requested, without prior notice to the parties. The court said it need not determine whether mistrial was required for delivery of the report in question because "we find that it was prejudicial error ... to respond to the jury's inquiries outside the presence of ... counsel." (e.s.) It cited Fla.R.Crim.P. 3.410 ¹ and said "Any such communication ... is so fraught with potential prejudice that it cannot be considered harmless." (e.s.) 351 So.2d 27, 28.

There is much logical appeal in the state's argument that Ivory does not apply to the present case because the judge's rejection of the jury request for a copy of instructions was not a communication within the terms of the prohibition in Rule 3.410 against giving "additional instructions" without notice. ² However, the apparent conclusion to the contrary in Isley was dictated by the language in Ivory applying the rule to protect counsel's "right to make full argument as to the reasons the jury's request should or should not be honored." (e.s.) 351 So.2d 28. We conclude that we can affirm here without resolving that argument on construction of the rule. Even assuming that the notice provisions of the rule apply when a trial judge refuses to grant a jury request for a copy of instructions already given, ³ and assuming that Isley and Ivory require that we find error here for failure to give notice as prescribed by the rule, reversal is not compelled because Isley did not determine the harmless error issue, and because Ivory's apparent ruling of per se prejudice has been subsequently qualified. The Supreme Court has expressly applied harmless error principles to what it termed a "procedural error" in failing to notify counsel under Rules 3.410 and 3.390(d) before an additional instruction (Allen charge) was given during jury deliberation: "... we find such error to be harmless in the present case." Rose v. State, 425 So.2d 521 (Fla.1982). ⁴ Similarly in Hitchcock v. State, 413 So.2d 741 (Fla.1982), the Court reviewed a judge's written response, without record evidence of notice or presence of counsel on a jury request during deliberation, stating "you should not consider any penalty at this time." It held the "communication does not fall within ... 3.410, and Hitchcock has failed to demonstrate anything more than harmless error." (e.s.) Other recent treatment of the harmless error doctrine ⁵ in different contexts ⁶ indicates agreement by our Court with the analysis of the doctrine in U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), reflecting concern "that when courts fashion rules whose violations mandate automatic reversals, they 'retreat [ ] from their responsibilities, becoming instead "impregnable citadels of technicality." ' " 461 U.S. at p. 509, 103 S.Ct. at p. 1980, 76 L.Ed.2d at p. 106.

We therefore affirm, but in recognition of the probable frequency of the occurrence here in question, and the close issues presented in our application of recent precedent, we certify the following as questions of great public importance under Fla.R.App.P. 9.030(a)(2)(A)(v):

1. Is a trial judge's...