        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       CHRISTOPHER STRACHAN,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D18-868

                             [October 2, 2019]


  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.

      ....



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      [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. Instead, the trial court’s judicial assistant
came into the courtroom, and the following exchange occurred:

      JUDICIAL ASSISTANT: [The trial court] said to go ahead and
      put [the CD] back in the jury room and press play.

      DEFENSE COUNSEL: Well, we object to that. I think [the
      trial court is] going to have to come back out.

      JUDICIAL ASSISTANT: [The trial court] said she’s not coming
      back out. And you can put your objection on the record.

      DEFENSE COUNSEL: . . . [W]e object to the playback being
      put in the room with the jury, the same as we would object to
      the playback happening in the courtroom locked with nobody
      else present . . . .

    Defense counsel was correct, and the trial court was mistaken. The
trial court’s mistake appears to have been based on its confusion regarding
a jury’s ability to view recorded evidence in a closed deliberation room,
versus a jury’s ability to hear recorded testimony, the playback of which


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“must be done in open court in the presence of all parties” as rule 3.410(a)
plainly provides.

    Based on the foregoing, the proper remedy is a new trial. See Bryant v.
State, 656 So. 2d 426, 429 (Fla. 1995) (“[T]he presence of a judge during
trial is a fundamental right. Thus, the trial court’s absence during the
readback of testimony without a valid waiver [of the judge’s presence by
the defendant] constitutes reversible error.”) (internal citation and
quotation marks omitted); Maldonado v. State, 634 So. 2d 661, 662-63
(Fla. 5th DCA 1994) (trial court committed fundamental error when, in
response to jury’s request to hear testimony of witnesses, court allowed
court reporter to read testimony to jury in jury room, outside the presence
of the trial court, counsel, and the defendant); Glee v. State, 639 So. 2d
1092, 1093 (Fla. 4th DCA 1994) (“[T]his issue is not susceptible to a
harmless error test.”).

   2. Unreasonably Limiting the Defendant’s Voir Dire of Jurors

   The trial court’s predecessor entered a scheduling order providing that
the state and defense would each be allotted forty-five minutes for voir dire
examination. The predecessor court added a note stating: “If either side
needs additional time, counsel may approach the bench and indicate what
important topics and/or questions relating to the juror’s qualifications to
serve have not been reached and the amount of time desired to accomplish
those goals. The Court will then address those request(s).”

   Defense counsel filed a written objection, indicating the defense
expected to need more time given the charges and the evidence in the case.

   At the trial, the trial court asked all of the potential jurors standard
biographical questions, as well as group questions regarding the
presumption of innocence, the right to remain silent, and their experience
and attitudes regarding domestic violence and law enforcement. The trial
court followed up if certain answers raised any questions about the
potential jurors’ ability to follow the law and serve fairly and impartially.

   The state followed. The state’s voir dire also focused on the potential
jurors’ experience and attitudes regarding domestic violence. The state
also explored the potential jurors’ understanding of the legal definitions of
premeditation and self-defense. When the courtroom clerk called “time”
at the end of the state’s forty-five minutes, the trial court, without the
prosecutor having first asked for more time, offered to the prosecutor, “If
you need a little bit more time, I’ll give the Defense more time too.” When
the prosecutor responded, “just a little bit,” the trial court replied, “I’ll give

                                        4
you ten more minutes, is that okay?” The prosecutor responded, “That
should be fine.” The state concluded its voir dire in the additional ten
minutes, which coincided with the end of that day’s proceedings.

    During defense counsel’s allotted fifty-five minute voir dire the following
morning, defense counsel efficiently asked potential jurors about a range
of topics related to their ability to serve fairly and impartially and follow
the law. For example, defense counsel asked individual potential jurors
about their personal experiences with domestic violence, which included
many potential jurors. Defense counsel asked the potential jurors whether
they could set aside their personal experiences to give the defendant a fair
trial. Defense counsel also asked potential jurors if they could follow and
apply the Stand Your Ground law even if they did not agree with the law.
Defense counsel also asked potential jurors if they could treat men and
women equally as it relates to self-defense jury instructions, and follow the
court’s instructions on weighing the credibility of witnesses.

    When the courtroom clerk called “time” at the end of defense counsel’s
fifty-five minutes, the court asked the prosecutor and defense counsel to
approach the bench. Defense counsel again objected to the imposed time
limit, and articulated the grounds which defense counsel still wanted to
cover with the potential jurors. For example, defense counsel stated he
had not finished asking jurors about weighing the credibility of witnesses,
the presumption of innocence, the burden of proof, and the right to remain
silent. Defense counsel also stated he intended to ask jurors about a few
other topics specific to this case, including any difficulty viewing photos of
the girlfriend’s injuries.

  The trial court denied the defendant’s request for any additional time.
The trial court stated, in pertinent part:

      Well, in light of the scheduling order, the Court gave more time
      . . . additional time to the State as well. . . . I went over all
      those issues. I understand that [the defense] does have the
      right to go over [the issues] you’ve spoken of again, other than
      just the Court going over them. However, you did choose to
      use your time in the way that you chose to use it . . . .

   After a short recess, the state asked to be heard on the trial court’s
decision to deny the defendant’s request for additional time. The
prosecutor remarked, in pertinent part, “[G]iven the case law that we were
able to look at, the State just does have an appellate issue or concern with
-- now that [defense counsel] has put on the record that he did, if you
divide the time between -- ”.

                                      5
   At that point, the trial court interrupted to conclude the discussion:

      You know what, there’s no Constitutional right to this. I
      understand you have a concern. That is my decision, I’ve
      made it. And you know, if you guys want to go to Federal
      Court, you won’t even get voir dire. So let’s move on, you guys
      have made your record.

   After the jury was selected, defense counsel renewed its previous
objections to not being given more time to question potential jurors.

   The defendant argues on appeal that the trial court unreasonably
limited the defendant’s voir dire of potential jurors.

   We agree with the defendant’s argument, and conclude that the trial
court abused its discretion. See Thomany v. State, 252 So. 3d 256, 256-
57 (Fla. 4th DCA 2018) (“We review a trial court’s imposition of time limits
on voir dire for an abuse of discretion.”) (citation omitted).

   In reaching this conclusion, we note four observations.

   First, unlike in Thomany, where defense counsel’s voir dire was
primarily intended to plant seeds in the potential jurors’ minds about the
defendant’s theory of the case, without asking questions reasonably
intended to elicit useful information for potential cause challenges or
peremptory strikes, id. at 257, here defense counsel’s voir dire was
primarily intended to elicit useful information for potential cause
challenges or peremptory strikes. In short, defense counsel used the
ultimately-allotted fifty-five minutes very wisely.

     Second, when the fifty-five minute period expired, defense counsel
articulated the grounds which he still wanted to cover with the potential
jurors, specifically their understanding of the defendant’s constitutional
rights. In denying any additional time, the court responded, “I went over
all those issues.” This was error. See Mendez v. State, 898 So. 2d 1141,
1143 (Fla. 5th DCA 2005) (“[A] trial judge cannot question prospective
jurors on such crucial areas as the presumption of innocence, the State’s
burden of proof, and the defendant’s right not to testify, and then prevent
counsel from further examination under the guise that it would be
repetitive.”); Fla. R. Crim. P. 3.300(b) (“Counsel for both the state and
defendant shall have the right to examine jurors orally on their voir dire.
. . . The right of the parties to conduct an examination of each juror orally
shall be preserved.”).


                                     6
    Third, the trial court appears to have based the amount of time which
the defendant received solely on the amount of time which the state
received. When the state’s allotted time expired, the state did not have to
ask the trial court for more time – the trial court, on its own volition, offered
more time. When the prosecutor accepted the offer, the trial court deferred
to the prosecutor as to how much time the prosecutor would need – “I’ll
give you ten more minutes, is that okay?” (emphasis added). Although the
trial court gave defense counsel the same ten minutes in advance of
defense counsel’s voir dire, the trial court did not treat defense counsel the
same when the defendant’s allotted time expired. Instead, defense counsel
had to ask for more time, which the trial court quickly denied. The trial
court gave no consideration to the fact that the defendant may have justly
needed more time than the state. See Hopkins v. State, 223 So. 3d 285,
286 (Fla. 4th DCA 2017) (“[L]imits that do not flex with the circumstances
can result in unreasonable curtailment of counsel’s efforts to obtain a fair
and impartial jury to try the issues in the cause.”) (citation and internal
quotation marks omitted).

    Fourth, the trial court appears to have disregarded the state’s attempt
to aid the trial court in avoiding this error. After the trial court denied the
defendant’s request for additional time, the prosecutor interjected, “[G]iven
the case law that we were able to look at, the State just does have an
appellate issue or concern with -- now that [defense counsel] has put on
the record that he did . . . .” The state’s concern was well-founded, and
the trial court’s dismissive response was improper. See id. (“Even though
trial judges may question prospective jurors, their role in jury selection
must not impair counsel’s right and duty to question the venire.”) (citation
omitted); O’Hara v. State, 642 So. 2d 592, 593-94 (Fla. 4th DCA 1994) (“A
trial court abuses its discretion when the imposition of unreasonable time
limitations or limitations on the number of questions results in the loss of
this fundamental right.”).

   Based on the foregoing, we conclude that the trial court unreasonably
limited the defendant’s voir dire of potential jurors. We would have
reversed and remanded for a new trial on this argument as well.

    We repeat the admonitions which we expressed in Thomany:
inflexibility in the amount of time provided for voir dire is not a wise path
upon which to continue to travel. 252 So. 3d at 257. Any extension of
time would have been far less than the many hours which both sides'
appellate counsel spent on this appeal, and many days less than the
amount of time which will be necessary to try this case again. Id.



                                       7
   3. The State’s Hearsay Objection to the Girlfriend’s Text Message

    At trial, the defendant claimed his girlfriend attacked him, and he acted
in self-defense. To support this claim, the defendant sought to introduce
into evidence three allegedly threatening texts which the girlfriend sent
him before the incident. The state objected to the text messages as
hearsay. The defendant responded that the texts were offered to show the
effect which the texts had on his state of mind at the time of the incident.

    The trial court overruled the state’s objection to the first two texts. The
first text, sent two months before the incident, read, in pertinent part,
“BELIEVE IN US LIKE YOUR LIFE DEPENDS ON IT.” The second text,
sent forty-eight hours before the incident, read, in pertinent part, “Will
NOT BE YOUR B**** NOT ONE MORE DAY . . . You have taken your keys
for the last time.”

   The trial court sustained the state’s objection to the third text. The
third text, also sent forty-eight hours before the incident, read, in pertinent
part, “b****** usually gut n***** with the deepest pockets, my stupid
(unintelligible) tried to fall in love.” The trial court did not explain its
reasoning for having excluded the third text, other than asking, “How is
that a threat?”

   The defendant argues that the trial court erred in excluding the third
text as hearsay when the defendant offered the third text to show its
impact on him and not for the truth of the matter asserted. The defendant
adds that the third text’s impact on him was relevant to his self-defense
claim, and was very significant because of its close proximity in time to the
incident.   According to the defendant, this statement was just as
admissible for the same purpose as the first two texts which the trial court
admitted, yet the trial court excluded the third text.

    The state responds that the defendant failed to make a sufficient proffer
of this argument, or in the alternative the error was harmless beyond a
reasonable doubt. In other words, the state does not argue that the trial
court correctly excluded the third text as hearsay.

   We review the trial court’s decision to exclude the third text as hearsay
for an abuse of discretion, limited by the rules of evidence. See Allen v.
State, 137 So. 3d 946, 956 (Fla. 2013) (on a hearsay issue, an appellate
court “reviews a trial court’s decision to admit evidence under an abuse of
discretion standard. The trial court’s discretion is not unfettered, but is
limited by the rules of evidence.”) (internal citations and quotation marks
omitted).

                                      8
   We agree with the defendant that the trial court erred in excluding the
third text as hearsay. “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2018).
The defendant offered the third text not to prove the truth of the matter
asserted, but for its effect on him as the recipient. See Eugene v. State, 53
So. 3d 1104, 1109 (Fla. 4th DCA 2011) (“[T]he emails were not hearsay
because they were offered not for the truth of the matters they contained
but to establish the effect that the statements had on [the defendant], the
recipient of the emails.”).

     Even if the trial court did not understand the third text to be a threat,
that was a question for the jury, not the trial court, in determining the
credibility of the defendant’s self-defense claim. See Jenkins v. State, 189
So. 3d 866, 870 (Fla. 4th DCA 2015) (where defendant’s testimony about
what he was told should have admitted to show the effect on the listener,
“[i]t was for the jury to decide if [the defendant’s] testimony was credible”).

    However, we would not have reversed based on this error. The trial
court admitted the two other texts as well as other evidence by which the
defendant sought to support his self-defense claim. Thus, this error does
not appear to have contributed to the verdict. See State v. DiGuilio, 491
So. 2d 1129, 1135 (Fla. 1986) (“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.”). We point out this error to provide
guidance in the event that, at the new trial, the defendant again seeks to
offer the third text for its effect on him as the listener.

   4. Instructing that Justifiable Use of Force Applied to Lessers

   The defendant’s final argument on appeal is that the trial court
fundamentally erred in not instructing the jury that the justifiable use of
deadly and non-deadly force instructions applied not only to the crimes
charged, but to also to any lesser-included offenses. In the alternative, the
defendant argues that ineffective assistance of counsel is apparent on the
face of the record based on defense counsel’s failure to object to this error.

   The state responds that no fundamental error occurred, and defense
counsel was not ineffective on the face of the record.



                                      9
   We agree with the state. The trial court read the justifiable use of
deadly and non-deadly force instructions after reading the instructions
outlining the elements of the charges and their lesser-included offenses.
Further, during closing argument, defense counsel was clear in arguing
that self-defense, as outlined in the justifiable use of deadly and non-force
instructions, was a defense to all of the state’s allegations. Cf. Sims v.
State, 140 So. 3d 1000, 1004 (Fla. 1st DCA 2014) (in considering the effect
of an erroneous instruction under the fundamental error analysis, the
court reviews the instruction in the context of the other instructions given,
the evidence adduced in the case, and counsel’s arguments).

    However, while no fundamental error occurred, and defense counsel
was not ineffective on the face of the record, we would otherwise conclude
it was error that the justifiable use of force instructions did not mention
that they applied to the lesser-included offenses of aggravated battery and
simple battery, because evidence existed to support such instructions.
See Michel v. State, 989 So. 2d 679, 681 (Fla. 4th DCA 2008) (defendant
was entitled to a jury instruction on the justifiable use of deadly and non-
deadly force as a defense to battery, as a lesser included offense of
aggravated battery, where the evidence presented supported such
instructions); Simon v. State, 589 So. 2d 381, 382 (Fla. 4th DCA 1991)
(defendant was entitled to a jury instruction on the justifiable use of non-
deadly force as a defense to battery on a police officer, as a lesser included
offense of attempted first degree murder, where evidence existed to support
that instruction).

   Consistent with our conclusion, the Florida Supreme Court has since
modified the standard jury instructions on justifiable use of deadly force
and non-deadly force to begin with the statement that “It is a defense to
the crime[s] of (name[s] of relevant crime[s], including lesser-included
offenses) . . . .” See In re: Standard Jury Instructions in Criminal Cases,
257 So. 3d 908, 910-11 (Fla. 2018) (approving proposed amendments to
Fla. Stand. Jury Instr. (Crim.) 3.6(f) and (g)) (emphasis added).

   We merely point out this error and the change in the standard jury
instructions to provide guidance in the event that, at the new trial on the
aggravated battery charge, the defendant again seeks to argue that the
justifiable use of deadly and non-deadly force instructions apply to the
lesser included offense of simple battery.




                                     10
                               Conclusion

   Based on the foregoing, we reverse and remand for a new trial on what
has become, as a result of the jury’s verdict in the underlying trial, count
one aggravated battery, and counts two and three for simple battery.

   Reversed and remanded for new trial.

WARNER and GROSS, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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