Wilson v. State, 95-2576

• Decision Date: 18 September 1996
• Docket Number: No. 95-2576,95-2576
• Citation: 680 So.2d 592
• Parties: 21 Fla. L. Weekly D2069 James D. WILSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 592

680 So.2d 592

21 Fla. L. Weekly D2069

James D. WILSON, Appellant, v. The STATE of Florida, Appellee.

No. 95-2576.

District Court of Appeal of Florida Third District.

Sept. 18, 1996.

Rehearing Denied Oct. 23, 1996.

Bennett H. Brummer, Public Defender and Louis Campbell, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Wanda Raiford, Assistant Attorney General, for appellee.

Before NESBITT, JORGENSON and GREEN, JJ.

GREEN, Judge.

James D. Wilson appeals his convictions and sentence for trespass while armed with a dangerous weapon, attempted first-degree murder, and aggravated battery after a trial by jury. Wilson raises three issues on this appeal. First, he asserts that his absence from the sidebar conference when peremptory challenges to the jury were exercised was reversible error where the trial court failed to make an affirmative determination of whether he knowingly, intelligently, and voluntarily waived his presence as required by Coney v. State, 653 So.2d 1009 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). The state's response is that this issue was not properly preserved for appellate review where Wilson did not register a contemporaneous objection to the trial court. In the alternative, the state asserts that it is not clear from the record that Wilson was not actually present at sidebar.

In Coney, the supreme court reiterated that a criminal defendant has a fundamental right to be present when peremptory challenges to prospective jurors are exercised:

[The defendant] has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence. Florida Rule of Criminal Procedure 3.180(a)(4) recognizes the challenging of jurors as one of the essential stages of a criminal trial where a defendant's presence is mandated.

Coney, 653 So.2d at 1013 (citing Francis v. State, 413 So.2d 1175, 1177 (Fla.1982)). The defendant's right to be present, however, is subject to waiver but the court must affirmatively determine through proper inquiry that any such waiver is knowing, intelligent, and voluntary. Id. at 1013. Alternatively, the Coney opinion says that "the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made," provided again that the trial court "certifies the defendant's approval through proper inquiry." Id.

We disagree with the state's assertion that Wilson's failure to interpose a timely objection to being excluded from this side bar is fatal to appellate review. Where peremptory challenges are used, the trial court's failure to comply with requirements of Coney constitutes fundamental error which may be raised for the first time on appeal. Butler v. State, 676 So.2d 1034 (Fla. 1st DCA 1996); Mejia v. State, 675 So.2d 996 (Fla. 1st DCA 1996). Further, the trial transcript refutes the state's suggestion that Wilson may have actually been present at sidebar during the selection of the jury. ¹ Thus we conclude that the trial court reversibly erred where Wilson was not present at sidebar for the exercise of the peremptory challenges and there was no affirmative showing on the record by the trial court that Wilson either expressly waived his presence or that he ratified the peremptory challenges made by his counsel.

Since we have to remand this cause for a new trial, we must also address one of Wilson's remaining points on appeal. Wilson asserts that the trial court erred when it permitted the victim to interpret for the jury an inaudible telephone message left by Wilson on the victim's recorder. ² When the tape was played, one of the jurors apparently did not understand the contents of Wilson's message. Over the defense's objection, the court permitted the victim to interpret inaudible or muffled portions of the tape for the jury. Wilson argues that this was error where: (1) the victim was not a party to Wilson's telephone conversation and thus had no independent knowledge of the contents thereof and (2) the victim was not otherwise qualified as an expert skilled at deciphering inaudible telephone conversations. We agree.

The general rule regarding admissibility of partially inaudible tape recordings is that such recordings are admissible

unless the inaudible and unintelligible portions are so substantial as to deprive the remainder of relevance; and partial inaudibility or unintelligibility is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible.

Harris v. State, 619 So.2d 340, 342 (Fla. 1st DCA 1993) (quoting Loren v. State, 518 So.2d 342, 352 n. 4 (Fla. 1st DCA 1987)); see also Henry v. State, 629 So.2d 1058, 1059 (Fla. 5th DCA 1993). Where, as in the trial below, a partially inaudible tape recording is appropriately played for the trier of fact, the case law is clear that neither a written nor oral interpretation of the inaudible...