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Strachan v. State

Florida Court of Appeals, Fourth District

October 2, 2019

CHRISTOPHER STRACHAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Marni A. Bryson, Judge; L.T. Case No. 16CF000876AMB.

          Antony 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 appellant.

          Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

          Gerber, J.

         The 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.

         We reverse on the first two arguments. Because the third and fourth arguments may recur in a new trial, we address those arguments as well.

         1. Playing Back Testimony in Violation of Rule 3.410(a)

         On the 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.

         Florida 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.

(emphasis added).

         Despite 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 . . . .

         Defense 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 objection.

         When 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. ...


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