SC09-966 – Aundra Johnson v. State of Florida

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SC09-966 – Aundra Johnson v. State of Florida – Revised Opinion

State: Florida

Court: Supreme Court

Docket No: sc09-966

Case Date: 01/27/2011

Plaintiff: SC09-966 – Aundra Johnson

Defendant: State of Florida – Revised Opinion

Preview:Supreme Court of Florida
No. SC09-966
AUNDRA JOHNSON,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[October 7, 2010]
REVISED OPINION
PER CURIAM.
Aundra Johnson seeks review of the decision of the Third District Court of
Appeal in Johnson v. State, 10 So. 3d 680 (Fla. 3d DCA 2009), on the basis that it
expressly and directly conflicts with decisions of the Fourth District Court of
Appeal in Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987); Huhn v. State,
511 So. 2d 583 (Fla. 4th DCA 1987); and Rigdon v. State, 621 So. 2d 475 (Fla. 4th
DCA 1993).1  The issue before this Court is whether it is per se reversible error
when a judge erroneously instructs a jury prior to deliberations that it cannot have
1.  We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const.

any testimony read back.  We hold that the error, if preserved, is per se reversible
because it is impossible to determine the effect of the erroneous instruction on the
jury without engaging in speculation, and thus a reviewing court is unable to
conduct a harmless error analysis.  Accordingly, we quash the Third District‟s
decision in Johnson and approve of the Fourth District‟s decisions in Biscardi,
Huhn, and Rigdon.
FACTS
Aundra Johnson was tried on charges of burglary and fleeing a police
officer.  At trial, prior to jury deliberation, the judge read a set of standard jury
instructions that were compiled with the approval of the State and the defense.  The
judge then added the following instruction not previously mentioned at the charge
conference:
Now let me caution you regarding the communication, if you
want to ask a question regarding the facts, let me caution you that we
don‟t have I [sic] simultaneous transcript of these proceedings so we
don‟t have a transcript and any questions regarding the facts, I will tell
you that you must rely upon your own recollection of the evidence.
The judge went on to instruct the jury: “If you have a question regarding the law, I
will tell you that you have all the laws that pertains to this case in those
instructions, there are no other laws.”2
2.  We recognize that this instruction was not objected to and thus any error
is not preserved.  Therefore, we do not discuss this instruction further.
2

Johnson specifically objected to the judge‟s instruction that the jury could
not have testimony read back, stating that the jury has a right to have testimony
read back.  The judge overruled the objection, and prior to the jury retiring to
deliberate, the judge once again instructed the jury:
Ladies and gentlemen and, again, if you have a question
regarding the facts, I cannot reopen the facts.  I cannot explain the
evidence to you.  The normal answer that I give you is that you must
rely upon your own recollection of the evidence.  If you have
differences of opinion you must hash them out amongst yourselves.
After deliberations without any questions being asked by the jury or any requests
for the read-back of testimony, the jury convicted Johnson of the crime of fleeing a
police officer, but acquitted him of the burglary charge.
On appeal to the Third District, Johnson claimed that the trial judge erred in
instructing the jury that the law did not permit him to read back testimony.  The
Third District agreed and concluded that the trial court erred by discouraging the
jury from requesting any read-back of testimony, which the State conceded.  In
particular, the Third District stated: “[W]hile the trial court has the discretion to
deny a jury‟s request to read back testimony, it may not mislead the jury into
thinking that a read-back is prohibited.”  Johnson, 10 So. 3d at 681 (quoting Avila
v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001)).  However, the Third District
held that the error was harmless based upon its conclusion that the evidence against
3

Johnson was “overwhelming.”  Id.3  Consequently, the Third District affirmed
Johnson‟s conviction and sentence.  Id. at 682.  Judge Cope dissented to the use of
a harmless error test and alternatively disagreed that the error could be deemed
harmless in this case:
We should order a new trial.  Defense counsel timely and
correctly objected to the trial court‟s instruction.  Neither the State nor
the majority opinion has cited any authority for the proposition that
this type of error is subject to harmless error analysis.  Assuming
arguendo that such an analysis could be applied, it is inappropriate
here, where the jury had enough reasonable doubt about the State‟s
case to acquit the defendant on a number of charges.
Id.
The Third District‟s holding that the error was harmless conflicts with the
Fourth District‟s decisions in Biscardi, Huhn, and Rigdon, all cases in which the
Fourth District applied the per se reversible error rule to similar misleading jury
instructions.
ANALYSIS
The issue before this Court is whether a trial court‟s erroneous instruction
that the jury is not permitted to request read-backs of testimony is per se reversible
or whether a reviewing court can determine that the error was harmless.  To
3.  The Third District actually used an incorrect harmless error test by
focusing only on the “overwhelming evidence.”  As recently emphasized by this
Court in Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010), an “overwhelming
evidence” test is not the correct test for determining whether an error was
harmless.  See also Williams v. State, 863 So. 2d 1189, 1189-90 (Fla. 2003).
4

resolve the issue, we first explain why the trial court‟s instruction was erroneous.
Next, we discuss the harmless error test and per se reversible error.  We then
discuss the situations in which Florida courts apply the per se reversible error rule
and review the reasoning of the Fourth District cases that are in conflict with the
decision on review in this case.  We conclude that when a judge erroneously
instructs a jury that it may not request to have testimony read back, a reviewing
court is unable to conduct a harmless error analysis because it is impossible to
determine the effect of the erroneous instruction on the jury.  The reviewing court
cannot determine what testimony the jurors might have requested to have read
back, and thus it is impossible to determine the effect of the error on the jury
without engaging in speculation.  Accordingly, we must hold that such error is per
se reversible.
It is undisputed that it is error for a judge to instruct a jury, prior to
deliberations, that it cannot have any testimony or instruction read back.4  Florida
Rule of Criminal Procedure 3.410 states:
4.  We note, however, that if a jury requests a specific read-back, a trial
judge has broad discretion in deciding whether to grant the jury‟s request.  State v.
Riechmann, 777 So. 2d 342, 365 (Fla. 2000).  Refusing a jury‟s specific request for
a read-back is distinguishable from the preemptive ban at issue here.  When a
specific request from the jury to read back testimony is at issue, a reviewing court
is able to conduct a harmless error analysis.  Thus, if a trial judge refuses a jury‟s
request for a specific read-back of testimony, the refusal is reviewed for abuse of
discretion and is subject to a harmless error analysis, provided the issue is
preserved.  See Coleman v. State, 610 So. 2d 1283, 1286 (Fla. 1992).
5

After the jurors have retired to consider their verdict, if they
request additional instructions or to have any testimony read to them
they shall 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 to them.
Because the rule provides that juries may have testimony read back, it is clearly
error for a trial judge to advise a jury otherwise.  Johnson objected to the erroneous
instruction, thereby preserving the error for review.
When an error is preserved for appellate review by a proper objection, an
appellate court applies either a harmless error test or a per se reversible error rule.5
Although a defendant is not entitled to a completely error-free trial, he or she has a
constitutional right to a fair trial free of harmful error.  See Goodwin v. State, 751
So. 2d 537, 538-39, 541 (Fla. 1999).  Thus, the role of the appellate courts is to
ensure that criminal trials are free of harmful error, the presence of which would
require reversal.  The harmless error rule is “concerned with the due process right
5.  Both per se reversible error and harmful error analysis apply only if the
issue is properly preserved for appellate review.  See Rodas v. State, 967 So. 2d
444, 446-47 (Fla. 4th DCA 2007) (“There is a difference between „per se reversible
error‟ and „fundamental error.‟  The general rule is that a reversal in a criminal case
must be based on a prejudicial error that was preserved by a timely objection in the
trial court.  A fundamental error is an exception to the contemporaneous objection
rule. . .                                                                                  .  A per se reversible error means that a reviewing court does not undertake
harmless error analysis . . .                                                              .  A per se reversible error is not necessarily a
fundamental one.” (citations omitted)).  This is in contrast to fundamental error,
which applies when an issue is not preserved.  Cox v. State, 966 So. 2d 337, 347
(Fla. 2007) (“[A] claim of error that is not preserved by an objection during trial is
procedurally barred on appeal unless it constitutes fundamental error.”).
6

to a fair trial” and “preserves the accused‟s constitutional right to a fair trial by
requiring the state to show beyond a reasonable doubt that the specific [errors] did
not contribute to the verdict.”  State v. DiGuilio, 491 So. 2d 1129, 1135-36 (Fla.
1986).
The test for harmless error focuses on the effect of the error on the trier of
fact.  Id. at 1139.                                                                     “The question is whether there is a reasonable possibility that the
error affected the verdict.”  Id.  The burden is on the State to prove beyond a
reasonable doubt that the error did not contribute to the outcome.  Id.  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.
Id.; see also Ventura, 29 So. 3d at 1089-90; Cuervo v. State, 967 So. 2d 155, 167
(Fla. 2007); Cardenas v. State, 867 So. 2d 384, 395 (Fla. 2004); Williams, 863 So.
2d at 1189-90.  Thus, to apply the harmless error test, the reviewing court must be
able to determine the effect of the error on the trier of fact.
Like the harmless error test, the per se reversible error rule is concerned with
the right to a fair trial.  DiGuilio, 491 So. 2d at 1135.                               “The test of whether a given
type of error can be properly categorized as per se reversible is the harmless error
test itself.”  Id.                                                                      “If application of the test to the type of error involved will always
7

result in a finding that the error is harmful, then it is proper to categorize the error
as per se reversible.”  Id.
This Court has also applied the per se reversible error rule to those cases
where the appellate court is unable to conduct a harmless error analysis because it
would have to engage in pure speculation in order to attempt to determine the
potential effect of the error on the jury.  These circumstances include when a trial
judge “respond[s] to a request from the jury without the prosecuting attorney, the
defendant, and defendant‟s counsel being present and having the opportunity to
participate in the discussion of the action to be taken on the jury‟s request.”  Ivory
v. State, 351 So. 2d 26, 28 (Fla. 1977); see also Bradley v. State, 513 So. 2d 112,
113-14 (Fla. 1987) (“[B]oth the state and the defendant must have the opportunity
to participate, regardless of the subject matter of the jury‟s inquiry.  Without this
process, preserved in the record, it is impossible to determine whether prejudice
has occurred during one of the most sensitive stages of the trial.” (emphasis
omitted) (quoting Curtis v. State, 480 So. 2d 1277, 1279 (Fla. 1985))).  This Court
has more recently applied the per se reversible error rule when a bailiff has
unsupervised communications with a jury.  See State v. Merricks, 831 So. 2d 156,
161 (Fla. 2002) (“To apply a harmless error analysis to such improper
communications as the State proposes would „unnecessarily embroil trial counsel,
trial judges and appellate courts in a search for evanescent harm, real or fancied.‟ ”
8

(quoting Ivory, 351 So. 2d at 28 (England, J., concurring)).  Per se reversible error
also occurs when a sitting juror is substituted after deliberations begin because it is
“nearly impossible to perform a harmless error analysis” since “any well-
intentioned questioning of the jurors, original or alternate, in a good-faith attempt
to provide those safeguards recognized under such an analysis is itself fraught with
potential to contaminate the jury process.”  Williams v. State, 792 So. 2d 1207,
1210 (Fla. 2001).
Another circumstance in which this Court has held that an error is per se
reversible because the reviewing court cannot conduct a harmless error analysis is
when a jury is not instructed on a lesser-included offense one step removed from
the charged offense.  In such a situation, the reviewing court cannot determine the
effect of the error on the jury because the court cannot know whether the jury
would have convicted the defendant of the next lesser included offense if the jury
had been given the option.  As explained by this Court: “If the jury is not properly
instructed on the next lower crime, then it is impossible to determine whether,
having been properly instructed, it would have found the defendant guilty of the
next lesser offense.”  Pena v. State, 901 So. 2d 781, 787 (Fla. 2005) (citing State v.
Abreau, 363 So. 2d 1063 (Fla. 1978)).  To conduct a harmless error analysis in that
situation would be to engage in pure speculation.
9

Similar to the reasoning in these cases, the Fourth District concluded in
Biscardi, Huhn, and Rigdon that when a trial judge indicates in his or her
instruction to the jury that it will not be allowed to have testimony read back,
reversible error occurs because it conveys to the jury that asking for rereading of
testimony is prohibited.  Thus, it is impossible to determine what testimony the
jurors might have requested to have read back.
In Biscardi, the Fourth District held that a trial judge committed reversible
error by telling the jury in the course of providing instructions that “ „there is really
no provision‟ for reinstruction or to have testimony read back.”   511 So. 2d at 580.
The Fourth District reasoned:
[T]he judge‟s words may reasonably have conveyed to jurors that to
ask for clarification of instructions or rereading of testimony would be
futile.  As a result they may have reacted as they did because they
misapprehended the law or had a distorted recollection of some of the
testimony.
Id. at 581.  In response to the State‟s argument that prejudice must be shown, the
Fourth District disagreed, stating, “Obviously, without going into the jurors‟ heads
or their communication with each other appellant cannot demonstrate prejudice.”
Id.
In Huhn, which was issued on the same day as Biscardi, the Fourth District
held that the trial judge committed harmful error by indicating to the jury during
10

instruction that it could not have instructions repeated or testimony reread.  Huhn,
511 So. 2d at 591.  Specifically, the trial judge stated:
Also, there is really no provision for me to either reinstruct you
after I instruct you or certainly to have any testimony read back or
certainly to call any witnesses back.  You are going to have to
remember the testimony and the instructions on the law as best you
can and probably the next time we hear from you will be when that
buzzer in there rings and we all jump about a foot up in the air and
then, you have a verdict.
Id.  The Fourth District reasoned that these remarks led at least some of the jurors
to understand that they were prohibited from asking for further instruction or for a
read-back.  Id.  It concluded: “[P]erhaps jurors would have . . . sought to have
certain testimony read to them if they had thought it possible.  In our view, the
error was harmful.”  Id.
In Rigdon, the Fourth District again stated that it was reversible error “for
the trial court to instruct the jury that any request to have testimony read back
would be refused.”   621 So. 2d at 479.  It reasoned:
[W]hile the instruction given contains indications that there remained
a possibility of having testimony read back, it nevertheless resembles
the instruction condemned in [Biscardi and Huhn] because the trial
judge‟s comments may reasonably have conveyed to the jurors that to
ask for rereading of testimony would be futile or was prohibited.  This
was reversible error.
Id. at 480.
We agree with the Fourth District‟s approach.  We conclude that when a
judge preemptively and erroneously instructs a jury that it cannot have any
11

testimony read back, a reviewing court cannot properly conduct a harmless error
analysis because it is impossible to determine what effect the erroneous instruction
had on the jury.
A court attempting to conduct a harmless error analysis cannot know what
testimony a jury would have requested to have read back or even whether a jury
would have asked for a read-back at all.  Therefore, a reviewing court cannot
determine whether a jury was confused or needed clarification about the facts of
the case, and it is impossible to discern whether the defendant was prejudiced by
the error.  An appellate court would be required to engage in pure speculation
because if the jury followed the erroneous instruction, the jury would be misled to
believe that it was not permitted to request read-backs of testimony.  Because a
harmless error analysis cannot be conducted when a judge preemptively instructs a
jury that it cannot have any testimony read back, we hold that such error is per se
reversible error.
In this case, the trial court preemptively instructed the jury as follows:
[I]f you want to ask a question regarding the facts, let me caution you
that we don‟t have I [sic] simultaneous transcript of these proceedings
so we don‟t have a transcript and any questions regarding the facts, I
will tell you that you must rely upon your own recollection of the
evidence.
This may have misled the jury to erroneously believe that it could not request read-
backs of testimony.  During deliberations, the jury did not ask questions or request
12

read-backs of testimony.  Because of the trial court‟s erroneous instructions in this
case, it is impossible to determine whether the jury would have requested a read-
back of testimony and thus impossible to determine whether or how the defendant
may have been prejudiced by the erroneous instruction.
The United States Circuit Court of Appeals for the Second Circuit has
applied a per se rule for the same reasons we do here.  In United States v. Criollo,
962 F.2d 241 (2d Cir. 1992), the trial lasted only two days and involved few
witnesses.  Nevertheless, the Second Circuit reasoned:
We have no way of determining whether the jury wanted to
request a read-back, but was chilled from doing so by the court‟s
prohibition against read-backs stated in the midst of defense counsel‟s
summation.  Since this case was so short and involved only a few
witnesses, we might well conjecture that any request for a read-back
would not be the result of a confused jury attempting to sort through
reams of evidence, but rather such a request could indicate that the
jury had a genuine inability to resolve serious questions of fact.
Id. at 244; see also United States v. White, 23 F.3d 404, 1994 WL 177280, at *6
(4th Cir. May 11, 1994) (unpublished) (Phillips, J., specially concurring)
(“[T]here‟s much to be said for . . . declaring [the error] not subject to harmless
error excuse—prejudicial per se error.  The Second Circuit recently has done just
that in United States v. Criollo, 962 F.2d 241, 244 (2d Cir. 1992), for the very good
reason that principled harmless error analysis is impossible, there being no way,
given the prohibition, ever to know whether a jury may have felt the need for a
clarification that could have avoided a prejudice now forever hidden.”).
13

Justice Polston‟s dissent relies on State v. Schopp, 653 So. 2d 1016 (Fla.
1995), and Galindez v. State, 955 So. 2d 517 (Fla. 2007), cases in which this Court
applied a harmless error analysis to situations where a trial court failed to hold a
Richardson6 hearing and where an Apprendi7 error occurred, respectively.
However, the rationales for applying a harmless error analysis to those errors are
not applicable here.
In Schopp, we receded from the rule that a trial court‟s failure to hold a
Richardson hearing concerning a discovery violation is per se reversible error
because there we determined it was clear from the record that the violation did not
“materially hinder[] the defendant‟s trial preparation or strategy” and thus was
harmless.  Schopp, 653 So. 2d at 1020.  However, here, unless the jurors request a
read-back despite the preemptive ban, the reviewing court cannot determine from
the record whether the jurors would have asked for a read-back had they been
given the opportunity.  Such a determination would be speculation, even if the trial
was short or there were few witnesses who all gave consistent testimony.  Indeed,
in such a situation, a jury‟s request for a read-back may indicate that the jury was
particularly confused and unable to resolve issues of fact.  This is distinguishable
from discovery violations, where the reviewing court will sometimes have enough
6.  Richardson v. State, 246 So. 2d 771 (Fla. 1971).
7.  Apprendi v. New Jersey, 530 U.S. 466 (2000).
14

information from the record, even absent an adequate Richardson inquiry, to make
a harmless error determination.
The issue in this case is likewise distinguishable from Apprendi errors.  As
with discovery violations, Apprendi errors are evaluated for harmlessness based on
information contained in the record.  Galindez, 955 So. 2d at 523 (evaluating
whether Apprendi error was harmless based on “whether the record demonstrates
beyond a reasonable doubt that a rational jury would have found” the fact).  This is
in contrast to the error at issue here, where any harmless error determination would
be based on speculation.
CONCLUSION
For the reasons stated above, we hold that it is per se reversible error when a
trial judge preemptively instructs a jury that it cannot have testimony read back and
the erroneous instruction is properly preserved for appellate review.  Accordingly,
we quash the Third District‟s decision in Johnson and remand for proceedings
consistent with this opinion.  We also approve of the Fourth District‟s decisions in
Biscardi, Huhn, and Rigdon.
It is so ordered.
PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur
CANADY, C.J., concurs in part and dissents in part with an opinion, in which
POLSTON and LABARGA, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
LABARGA, J., concurs.
15

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, C.J., concurring in part and dissenting in part.
I agree with Justice Polston that the error at issue here does not fall within
the category of per se reversible error.  I therefore disagree with the majority‟s
decision that requires a new trial.  Instead, I would reverse and remand to the
district court for a determination of whether the error was harmful.
In State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), we recognized that
a rule of per se reversible error is a “draconian measure.”  Rejecting the view that
the constitutional violation at issue in DiGuilio required such a rule of per se
reversal, we unequivocally held that “[p]er se reversible errors are limited to those
errors which are „so basic to a fair trial that their infraction can never be treated as
harmless error.‟”  Id. at 1135 (emphasis added) (quoting Chapman v. California,
386 U.S. 18, 23 (1967)).  We further acknowledged the high cost of improperly
categorizing a type of error as “per se reversible”:   “[I]f an error which is not
always harmful is improperly categorized as per se reversible, the court will
erroneously reverse an indeterminate number of convictions where the error was
harmless.”  Id.
As indicated by our reliance on Chapman, our understanding of per se
reversible error in DiGuilio was rooted in the federal law concerning constitutional
16

error.  The United States Supreme Court has repeatedly recognized that even
constitutional errors are ordinarily subject to harmless-error analysis.  Only
constitutional errors that “necessarily render a trial fundamentally unfair” can be
held to “require reversal without regard to the evidence in the particular case.”
Rose v. Clark, 478 U.S. 570, 577 (1986).
“Harmless-error analysis . . . presupposes a trial, at which the defendant,
represented by counsel, may present evidence and argument before an impartial
judge and jury.”  Id. at 578.  Accordingly, the denial of counsel, see Gideon v.
Wainwright, 372 U.S. 335 (1963), or the presence of a biased adjudicator, see
Tumey v. Ohio, 273 U.S. 510 (1927), are “errors that could never be harmless.”
Rose, 478 U.S. at 578 n.6.  Per se reversal is an appropriate response to the absence
of the “basic protections” without which a “criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.”  Id. at 577-78 (citation
omitted).
But such errors that require reversal automatically “are the exception and not
the rule.”  Id. at 578.  Indeed, the Supreme Court has articulated a presumption
against per se reversal:   “[I]f the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other errors that may
have occurred are subject to harmless-error analysis.”  Id. at 579.
17

The Supreme Court has identified errors “which defy analysis by „harmless-
error standards‟” as errors which result in “structural defects in the constitution of
the trial mechanism”—“structural defect[s] affecting the framework within which
the trial proceeds, rather than simply an error in the trial process.”  Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991) (emphasis added).  The unlawful
exclusion of members of the defendant‟s race from a grand jury, see Vasquez v.
Hillery, 474 U.S. 254 (1986), the denial of the right to self-representation at trial,
see McKaskle v. Wiggins, 465 U.S. 168 (1984), and the denial of the right to
public trial, see Waller v. Georgia, 467 U.S. 39 (1984), are examples of structural
defects not subject to harmless-error analysis.  Fulminante, 499 U.S. at 310.
Given the nature of such structural error, it is not surprising that the Supreme
Court has “found an error to be „structural,‟ and thus subject to automatic reversal,
only in a „very limited class of cases.‟”  Neder v. United States, 527 U.S. 1, 8
(1999) (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).  The
Supreme Court has repeatedly rejected claims that various errors were not subject
to harmless-error analysis.  See, e.g., Washington v. Recuenco, 548 U.S. 212, 221-
22 (2006) (holding that failure to submit a sentencing factor to the jury was not a
structural error and thus was subject to harmless-error review); Neder, 527 U.S. at
10 (holding that trial court‟s error in omitting an element of a crime from the jury
instructions was subject to harmless-error analysis); Delaware v. Van Arsdall, 475
18

U.S. 673, 684 (1986) (holding that improper denial of a defendant‟s right to
impeach a witness under the Confrontation Clause was subject to harmless-error
analysis); United States v. Hasting, 461 U.S. 499, 505 (1983) (holding that
prosecutor‟s improper comments about defense‟s failure to present evidence were
subject to harmless-error analysis).
Here, the trial court‟s error did not create a “structural defect[] in the
constitution of the trial mechanism.”  Fulminante, 499 U.S. at 309.  It is totally
implausible to suggest that a defendant has a right to have testimony read back to
the jury which is “basic to a fair trial,” DiGuilio, 491 So. 2d at 1135, or that the
possible failure to read back testimony that may have arisen from the trial court‟s
erroneous instruction “necessarily render[ed] [the] trial fundamentally unfair,”
Rose, 478 U.S. at 577.  As the majority acknowledges, a trial court may exercise
its discretion to deny a request to have testimony read back to the jury.  Majority
op. at 5 n.4 (citing State v. Riechmann, 777 So. 2d 342, 365 (Fla. 2000)).  Since
whether to have testimony read back to the jury is a discretionary matter, it cannot
be the case that the erroneous instruction resulted in the denial of a “basic
protection[]” necessary for a criminal trial to “reliably serve its function as a
vehicle for determination of guilt or innocence.”  Rose, 478 U.S. at 577-78.
There is no principled basis for distinguishing the error here from other jury
instruction errors which are subjected to harmless-error analysis.  See, e.g., Hunter
19

v. State, 8 So. 3d 1052, 1071 (Fla. 2008) (applying harmless-error analysis to trial
court‟s use of the term “and/or” in jury instructions), cert. denied, 129 S. Ct. 2005
(2009); Cardenas v. State, 867 So. 2d 384, 393 (Fla. 2004) (applying harmless-
error analysis to trial court‟s error in instructing the jury on the presumption of
impairment in a driving with an unlawful blood- or breath-alcohol level case); Lara
v. State, 699 So. 2d 616, 618 (Fla. 1997) (applying harmless-error analysis where
the trial court gave an unconstitutional jury instruction regarding an aggravating
factor).
The trial court‟s error therefore should be evaluated in the full context of the
trial to determine if it was harmless.
POLSTON and LABARGA, JJ., concur.
POLSTON, J., concurring in part and dissenting in part.
I disagree with the majority‟s conclusion that it is per se reversible error
when a trial judge instructs a jury, prior to deliberations, that it cannot have
testimony read back.  Although I agree that the instruction is in error, I believe that
in some cases the error can be harmless.  Therefore, I would quash the Third
District‟s decision and remand for a harmless error analysis under State v.
DiGuilio, 491 So. 2d 1129 (Fla. 1986).  Accordingly, I respectfully concur in part
and dissent in part.
20

The majority holds that the read-back error here is per se reversible “because
it is impossible to determine the effect of the erroneous instruction on the jury
without engaging in speculation.”  Majority op. at 2.  I disagree.  In State v.
Schopp, 653 So. 2d 1016 (Fla. 1995), this Court receded from a similar per se
reversible error ruling based upon presumed harm from the possibility of
uncertainty.  Specifically, in Schopp, this Court receded from its holding in Smith
v. State, 500 So. 2d 125 (Fla. 1986), wherein this Court held that the failure to
conduct a Richardson8 hearing was per se reversible error, assuming that “a
reviewing court is in no position to determine from a cold record whether a
discovery violation is harmless.”  Schopp, 653 So. 2d at 1019 (describing Smith,
500 So. 2d 125).  The Smith court had reasoned that “an appellate determination as
to whether a Richardson violation is harmless is impossible in light of the fact that
„[t]he purpose of a Richardson inquiry is to ferret out procedural, rather than
substantive, prejudice.‟ ”  Id.                                                         (quoting Smith, 500 So. 2d at 126).  But the Schopp
Court determined that there are exceptions to that stringent rule.
In Schopp, the State sought to admit the testimony of a police officer who
was not included on the State‟s original witness list but was added to an amended
witness list shortly before trial.  Id.  The trial court overruled defense counsel‟s
objection and concluded that a Richardson hearing was not required, in part
8.  Richardson v. State, 246 So. 2d 771 (Fla. 1971).
21

because of Schopp‟s request for a speedy trial.  Id.  The Fourth District Court of
Appeal reversed based on this Court‟s opinion in Smith, although it was
“ „absolutely convinced that the admission of the testimony of the undisclosed
witness and the failure to conduct a Richardson inquiry were harmless,‟ under the
harmless error analysis set out in [DiGuilio].”  Id. (quoting Schopp v. State, 641
So. 2d 141, 142 (Fla. 4th DCA 1994)).  The Fourth District was convinced the
error was harmless because “1) the undisclosed witness presented testimony that
was known to the defendant, was cumulative to other testimony, and concerned
facts openly admitted by the defendant; 2) defense counsel admitted during
opening statement that Schopp committed the offenses of which he was ultimately
convicted; and 3) Schopp was acquitted of the charged offenses and thus „won‟ his
case.”  Id.
This Court concluded that the circumstances in Schopp “demonstrate[d] that
there are cases in which a reviewing court can determine that a discovery violation
is harmless beyond a reasonable doubt, absent an adequate Richardson inquiry”
because in that case it was clear “beyond a reasonable doubt that neither the
discovery violation nor the trial court‟s failure to inquire into whether corrective
sanctions were warranted materially hindered the defendant‟s trial preparation or
strategy.”  Id. at 1019-20.
22

This Court reiterated that “a per se rule is appropriate only for those errors
that always vitiate the right to a fair trial and therefore are always harmful.”  Id. at
1020 (citing DiGuilio, 491 So. 2d at 1134-35) (emphasis added).  We then
explained that “we have never held that the failure to conduct a Richardson hearing
always results in an unfair trial.  Rather, we established the per se reversal rule
based on our assumption that „no appellate court can be certain that errors of this
type are harmless.‟ ”  Id. (quoting Cumbie v. State, 345 So. 2d 1061, 1062 (Fla.
1977)).  But Schopp presented a case where a review of the record revealed that
this type of error could be found harmless.
As in Smith, the majority has held here that the trial court‟s erroneous
instruction on read-backs constitutes per se reversible error based upon uncertainty
in determining whether, in some cases, this procedural error could be harmful—the
same reasoning that was proved to be unworkable in Schopp.  In Schopp, however,
the district court performed a thorough review of the record and described the
circumstances present in that case.  Here, the Third District‟s opinion does not
discuss its review of the record but simply states that the evidence against Johnson
was “overwhelming.”  Johnson v. State, 10 So. 3d 680, 681 (Fla. 3d DCA 2009).
But finding that the evidence is overwhelming is not the test for harmless error in
Florida.
23

In Florida, an error is harmless if there is no reasonable possibility that the
error affected the verdict.  DiGuilio, 491 So. 2d at 1139.  As this Court has
explained,
[H]armless error analysis must not become a device whereby the
appellate court substitutes itself for the jury, examines the permissible
evidence, excludes the impermissible evidence, and determines that
the evidence of guilt is sufficient or even overwhelming based on the
permissible evidence. . .
The harmless error test . . . places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed
to the conviction.  Application of the test requires not only a close
examination of the permissible evidence on which the jury could have
legitimately relied, but an even closer examination of the
impermissible evidence which might have possibly influenced the jury
verdict. . .
. . . The test must be conscientiously applied and the reasoning
of the court set forth for the guidance of all concerned and for the
benefit of further appellate review.  The 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.
Ventura v. State, 29 So. 3d 1086, 1089-90 (Fla. 2010) (quoting DiGuilio, 491 So.
2d at 1138-39).  I believe this Court should refrain from rejecting a harmless error
24

standard in favor of creating this per se reversible error rule when a harmless error
analysis under DiGuilio was not performed or reviewed by this Court.
In Galindez v. State, 955 So. 2d 517, 518 (Fla. 2007), this Court held that
violations of Apprendi and Blakely are subject to a harmless error analysis.9  In
Galindez, a jury found the defendant guilty of “two counts of lewd and lascivious
assault on a minor and one count of child abuse by impregnating the victim.”
Galindez, 955 So. 2d at 519-20.  Yet Galindez‟s scoresheet assessed 240 points for
penetration.  Id. at 520.  This Court concluded that any Apprendi error was
harmless.  Id. at 523.  This Court stated that “[i]n light of the clear and uncontested
record evidence of penetration . . . we hold that no reasonable jury would have
returned a verdict finding there was no penetration.”  Id. at 524.  In reaching its
conclusion, this Court relied on the harmless error analysis applied by the United
States Supreme Court in Washington v. Recuenco, 548 U.S. 212 (2006) (reversing
the Washington Supreme Court‟s holding that harmless error analysis does not
apply to an Apprendi error).  See 955 So. 2d at 521-22.  This Court noted that it
had “long applied” the harmless error test announced in Chapman v. California,
386 U.S. 18 (1967), and outlined in DiGuilio, which we described as questioning
whether it is “clear beyond a reasonable doubt that a rational jury would have
9.  Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakley v. Washington,
542 U.S. 296 (2004).
25

found the defendant guilty absent the error.”   955 So. 2d (quoting Neder v. United
States, 572 U.S. 1, 18 (1999)).
In Galindez, this Court applied a harmless error analysis even though the
fact that led to the enhanced sentence had never been submitted to the jury.
Although we did not know what the jury would have actually determined or what
questions the jury would have asked if the fact enhancing the sentence had been
submitted to the jury, we held that a harmless error analysis was appropriate.
Similarly, here we do not know what the jury would have done absent the
erroneous read-back instruction.  We do not know what, if any, questions the jury
would have had regarding the facts submitted to it for its consideration.  And just
as we perform a harmless error analysis when faced with the uncertainty
surrounding an Apprendi violation, we should perform a harmless error analysis
when faced with an erroneous read-back instruction.
I believe that, just as with violations of Apprendi, there are circumstances
under which an erroneous read-back instruction can be harmless.  At least one
federal court has concluded that the specific read-back error at issue here can be
harmless.  In United States v. White, 23 F.3d 404, 1994 WL 177280 (4th Cir.
1994) (unpublished), the Fourth Circuit concluded that an erroneous read-back
instruction was harmless based upon its observations that the appellant‟s trial
lasted just one-and-one-half days, and he was the only defendant; the
26

announcement prohibiting read-backs was made after all the evidence was
presented; four incriminating witnesses told consistent stories; the defense was not
based on fine distinctions; and the appellant “point[ed] to nothing, either in general
or in particular, that might have generated confusion among the jurors.”  White,
1994 WL 177280 at *3.  The Fourth Circuit explained:
Of course we have no way of knowing whether the jury in
White‟s trial would have asked for a read-back of any testimony, just
as a reviewing court can never know with absolute certainty what
weight a jury put on an erroneously admitted piece of evidence.  It is
difficult, and no doubt sometimes nigh impossible, to gauge the effect
on a jury‟s verdict of, say, a coerced confession, but we are bound to
do so when presented with such a case.  The difficulty of applying the
harmless error test in some (or even most) cases, however, is an
inadequate basis for declaring a per se rule for all cases.
Id.
As in White, a proper review of the record here may have revealed the error
was harmless, that is, that there was no reasonable possibility that the error affected
the verdict.  For example, it is possible that several witnesses gave consistent
testimony, or that Johnson or his counsel admitted that he fled from a police
officer, or that all the facts in the case were undisputed, or any number of other
possible scenarios which could have led the Third District to conclude beyond a
reasonable doubt that the read-back error did not contribute to the verdict.
On the other hand, a proper analysis could have led to the conclusion that the
error was harmful.  Maybe a review would have revealed the presence of
27

conflicting testimony, or an exceptionally lengthy jury deliberation, or some
questionable admission of evidence, or any number of other circumstances which
could have led the Third District to conclude that the error was harmful.  But even
finding the error harmful in this case does not mean that the error could not be
found harmless in another case.  As in Smith, the majority is assuming that “no
appellate court can be certain that errors of this type are harmless.”  Schopp, 653
So. 2d at 1020 (quoting Cumbie, 345 So. 2d at 1062).  But “a per se rule is
appropriate only for those errors that always vitiate the right to a fair trial and
therefore are always harmful.”  Id. (emphasis added) (citing DiGuilio, 491 So. 2d
at 1134-35).  That this type of error is always harmful has not been proven here.
Therefore, this case does not present a sufficient basis for creating a per se
reversible rule, especially considering that this Court has not been apprised of all
the facts.  Instead, in my view, this case should be reversed and remanded so that
the Third District can perform a harmless error analysis under the standards
adopted by this Court in DiGuilio.
Accordingly, I respectfully concur in part and dissent in part.
LABARGA, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Third District - Case No. 3D07-2145
28

(Dade County)
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender,
Eleventh Judicial Circuit, Miami, Florida,
for Petitioner
Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau
Chief, and Nicholas Merlin, Assistant Attorneys General, Miami, Florida,
for Respondent
29

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