final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Marni A. Bryson, Judge; L.T. Case No.
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
Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
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.
reverse on the first two arguments. Because the third and
fourth arguments may recur in a new trial, we address those
arguments as well.
Playing Back Testimony in Violation of Rule 3.410(a)
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.
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.
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
. . . .
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
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. ...