Opinion
No. 3D18-1633
04-01-2020
Sedrick WRIGHT, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, and James Odell, Assistant Public Defenders, for appellant. Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, and James Odell, Assistant Public Defenders, for appellant.
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Before LOGUE, HENDON, and GORDO, JJ.
HENDON, J.
Sedrick Wright appeals from his conviction and sentencing as a Violent Career Criminal pursuant to section 775.084(1)(d), Florida Statutes (2016). We affirm.
Wright was initially stopped by plainclothes police officers when they smelled marijuana coming from his vehicle as he passed them on the road. The officers pulled in behind him and blocked his car; Wright got out of the car and ran. When Wright failed to stop when ordered to, the officers tasered him. The arresting officers handcuffed him, but did not pat Wright down as incident to arrest, as they were attempting to remove the taser probes. Later, as other officers were moving him, an officer noticed a long spring fall out of Wright's pants. On further investigation, a gun fell out of Wright's pants, spilling bullet cartridges.
Wright was initially charged with misdemeanor marijuana possession and cocaine possession, both charges were later nolle prossed. Wright went to trial on the charge of possession of a gun by a convicted felon. A nearby witness recorded parts of the arrest on a cellphone camera. The video was introduced at the trial; the audio part of the video was not admitted because on the audio portion, an officer can be overheard saying "You ran because you got cocaine, you don't want to go to jail, you're probably on probation." The audio was deemed prejudicial and unrelated to the charge of gun possession. During their deliberations, the jury requested to view the video once again. The parties agreed that the jury could use the courtroom to view the video, without audio, as part of their deliberations. The parties agreed that they and trial court judge would not be present during the viewing and deliberations. The jury subsequently convicted Wright of possession of a weapon by a career criminal.
At the time of pronouncing the sentence, the trial court asked both the defense and prosecution what the difference was between finding that Wright was "a danger to the public," and a finding that Violent Career Criminal sentencing was "not necessary for the protection of the public." Finding no difference, and based on Wright's prior record, the trial court determined it could not find that Wright was not a "danger to the community." The court sentenced Wright to life in prison as a Violent Career Criminal pursuant to section 775.084(1)(d), providing that this sentence was "necessary for the protection of the public."
Wright argues on appeal that he is entitled to a new trial because the trial court judge was absent from the courtroom during the jury's viewing of critical video evidence. The parties agreed that the jury could re-watch the cellphone video, but without the prejudicial audio portion. Both parties agreed that the jurors could watch and deliberate in the courtroom without the state or defense present. The trial court judge decided, without an objection by either party, that he would leave the courtroom so that the jurors could deliberate freely and privately. The record indicates that the sound on the video was muted. The defendant now argues that there is no way to determine if the unsupervised jurors un-muted the audio to hear inadmissible and prejudicial evidence, and thus a new trial is required.
The trial court was not required to be present when the jury viewed the muted cellphone video during jury deliberations. The jurors were the only persons in the courtroom during the playback of the video. See Fla. R. Crim. P. 3.400(a)(3). It is entirely speculative whether the jury went against the trial court's explicit explanation that the video sound was not to be heard by the jury, and there is no evidence in the record that the jury heard any audio. The video was set up to play on a loop, and there is suggestion in the record that the remote controls to the video player were not available to the jury and the transcript indicates that the jury did not have the ability to un-mute the video.
Evidence introduced during the course of the trial may be viewed by the jury in the jury room during their deliberations. Fla. R. Crim. P. 3.400(a)(3) ; see Thorne v. State, 174 So. 3d 477 (Fla. 4th DCA 2015) (holding that no abuse of discretion when trial court allowed jury access to appellant's videotaped statements in the jury room during private deliberations). Reviewing or re-reading of testimony provided during trial, however, must be done in open court in the presence of all parties unless the defendant makes a knowing and voluntary waiver of the trial court's presence during read-back. See e.g., Bryant v. State, 656 So. 2d 426, 428–29 (Fla. 1995) ; Strachan v. State, 279 So. 3d 1231, 1234 (Fla. 4th DCA 2019) (holding a jury's ability to hear recorded testimony must be done in open court in the presence of all parties as rule 3.410(a) provides); Tovar v. State, 867 So. 2d 1206 (Fla. 4th DCA 2004) (holding a trial judge's absence during the read-back of testimony without a valid waiver is reversible error); Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998).
Florida Rule of Criminal Procedure 3.400 provides:
(a) Discretionary Materials. The court may permit the jury, upon retiring for deliberation, to take to the jury room:
(1) a copy of the charges against the defendant;
(2) forms of verdict approved by the court, after being first submitted to counsel;
(3) all things received in evidence other than depositions. If the thing received in evidence is a public record or a private document which, in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.
Here, the cellphone video was admitted as evidence, not testimony. The audio was inadmissible and the parties agreed that the jury could view the video evidence outside the presence of the parties and trial court, using the courtroom for the jury's private deliberations. See Thorne, 174 So. 2d at 478. This was not a situation where the trial judge was required to be present at an aspect of trial where the lawyers or the parties were in any contact with the jury, or where testimony was being heard, requiring the defendant's waiver. Strachan; Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996).
Wright is not entitled to resentencing. The record on appeal indicates that the trial court understood the mandatory sentencing provisions of the VCC statute as well as its discretion to depart from those mandatory provisions. We find no reversible error in the trial court's findings and sentence based on Wright's record.
Upon thorough review of the record on appeal, we find the remaining issues to be without merit.
Affirmed.