       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        RUBEN ISRAEL RENTAS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-533

                            [January 10, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Dina A. Keever, Judge; L.T. Case No. 502012CF006211A.

  Carey Haughwout, Public Defender, and Karen Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Appellant Ruben Israel Rentas appeals his criminal convictions for two
counts of sexual activity with a child, two counts of lewd or lascivious
molestation of a child over the age of twelve but under the age of sixteen,
one count of lewd or lascivious molestation of a child under the age of
twelve, one count of sexual performance by a child, and one count of
showing obscene material to a child. He claims the trial court erred in
denying cause challenges to two prospective jurors based on statements
raising doubts as to their impartiality. He also argues that the trial court
erred by permitting the jury to rehear a portion of the minor victim’s
testimony without also rehearing the corresponding cross-examination.
We agree on both issues, and grant appellant’s request for a new trial.

    Part of appellant’s defense theory was that he gave a false confession.
During voir dire, defense counsel asked the prospective jurors, “Do you
believe people confess to crimes they did not commit?” The first three
jurors to answer each stated they believed that under certain conditions,
false confessions could occur. The fourth prospective juror to speak on
the issue, Juror 1-5, stated that he did not believe a person would falsely
confess to committing such a serious offense and that the validity of an
involuntary confession was contingent on the severity of the alleged crime.
He explained, “If the person is accused of a serious crime, I seriously doubt
that they would say they did it if they didn’t think so.” Juror 1-5 later
reiterated his belief that an innocent person would not confess to a crime
he did not commit:

      But I would say you know-- and I’ll clarify that-- they certainly
      would have been involved in it. And I think your question was
      would they agree to admitting to a crime that they did not
      commit and my answer to that would be no.

(Emphases added).

   Juror 1-5 unequivocally said he would be fair and impartial, but was
not further questioned by the State or the trial court concerning his views
on false confessions. Defense counsel challenged this juror for cause
because he candidly expressed difficulty accepting false confessions for
serious crimes and that a person who confessed was certainly involved in
some way. The State responded that Juror 1-5’s opinions were entirely
reasonable and that his statements actually meant false confessions were
extremely unlikely, not that they did not occur in serious cases. The trial
court agreed with the State and denied the challenge for cause to Juror 1-
5.

    During the voir dire discussion, a second juror, Juror 3-7, was asked
for his thoughts about false confessions. Juror 3-7 also found it hard to
believe that a person would falsely admit to committing the charged
crimes:

      Well, it-- it’s kind of hard for me to believe that someone would
      admit guilt to a crime of this nature if they were in fact innocent.
      I mean very unreasonable. I mean anything’s possible of
      course. But something of this nature would just be very
      unreasonable for someone to admit guilt to.

(Emphases added).

   Defense counsel tried to decipher whether Juror 3-7 would be fair and
impartial, and asked him if he would have difficulty accepting an
involuntary confession theory. Juror 3-7 answered that he “would look at
everything evenly and as fair as possible to make a fair decision.” But
when defense counsel inquired further as to whether Juror 3-7’s position
was that involuntary confessions were “possible” or “completely

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unreasonable,” Juror 3-7 responded, “It’s possible. But a crime of this
nature I mean who would be crazy enough to admit guilt?” (Emphasis
added).

   After Juror 3-7’s comment, defense counsel asked if any other juror felt
the same way, to which Juror 4-3 responded:

      What he’s saying makes total sense. Okay? I mean the crime
      we’re talking about the sexual crime that’s-- that’s talking
      about this situation with [Juror 3-7], I-- I’m 100% on his side
      for that because you would have to be mentally ill okay to-- to
      go to plead guilty to something like that because you have no
      sense of thought. There’s no there’s no way anybody with
      common logic and sense would do something to uh-- to
      jeopardize their lives to commit a-- to admit they’re guilty for
      something they didn’t do.

(Emphases added.)

    Appellant also challenged Jurors 3-7 and 4-3 for cause arguing that,
like Juror 1-5, both rejected the false confession defense as unreasonable
while believing a person would have to be crazy to do so. The State argued
that while a prospective juror may find such a defense “hard to believe,”
they are permitted to have whatever beliefs they want so long as they are
able to keep an open mind and follow the evidence. The trial court recalled
that Juror 3-7 specifically stated he would be as fair as possible and if he
listened to the evidence fairly, there was no reasonable doubt as to his
impartiality. However, defense counsel noted that Juror 3-7’s reference to
fairness needed to be considered in context of his candid disbelief of false
confessions to serious crimes.

    Ultimately, the trial court denied appellant’s cause challenge to Juror
3-7, but granted appellant’s challenge to Juror 4-3. After appellant
exercised all his peremptory challenges, the trial court rejected appellant’s
request for additional peremptory challenges for each cause challenge the
trial court previously denied.

    During jury deliberations after trial, the jury submitted a note to the
trial judge which read: “There is a request for a transcript of [minor
victim]’s testimony. Is that something that can be provided?” The court
informed the jury that the minor victim’s testimony was recorded, the
complete testimony was an hour and fifty-eight minutes long, and would
take about thirty minutes to prepare on a disk. The judge then instructed
the jury to return to the jury room and decide whether they wanted the

                                     3
entire testimony played back, or only a narrowed portion. After some
deliberation, the jury sent a second note: “We would like to see the first
[twenty] minutes of [minor victim]’s testimony.” Upon receiving the second
request, the trial court immediately asked for the jury to be brought in and
granted their request. Appellant objected to the jury only hearing direct
examination testimony and requested that the jury also hear the relevant
cross-examination testimony relating to the first twenty minutes of direct
examination. The trial court overruled appellant’s objection and played
the first twenty minutes of the minor victim’s direct testimony for the jury.

   The jury returned a verdict of guilty to all seven counts against
appellant. He was sentenced to life in prison followed by two consecutive
thirty-year prison sentences. This appeal followed.

   1. For Cause Challenges
   “The standard of review of a trial court’s ruling on a cause challenge is
one of abuse of discretion. . . . Abuse of discretion occurs when the record
reveals reason to doubt impartiality.” Ranglin v. State, 55 So. 3d 744, 746
(Fla. 4th DCA 2011). Additionally, the failure to strike a juror for cause is
not subject to a harmless error analysis. See Bryant v. State, 765 So. 2d
68, 69 (Fla. 4th DCA 2000).

   A juror’s expressions of doubt about an ability to decide the case
impartially provides reasonable doubt about the juror’s ability to decide
the case solely on the evidence. See Lowry v. State, 963 So. 2d 321, 326-
27 (Fla. 5th DCA 2007). “When a party seeks to strike a potential juror for
cause, the trial court must allow the strike when there is basis for any
reasonable doubt that the juror had ‘that state of mind which would enable
him to render an impartial verdict based solely on the evidence submitted
and the law announced at the trial.’” Guardado v. State, 176 So. 3d 886,
897 (Fla. 2015) (quoting Carratelli v. State, 961 So. 2d 312, 318 (Fla.
2007)).

   Potential jurors who express significant reservations about their ability
to be impartial should be excused for cause where their responses to
attempts at rehabilitation are conditional or equivocal. See Carratelli v.
State, 832 So. 2d 850, 855 (Fla. 4th DCA 2002). “A juror is not impartial
when one side must overcome a preconceived opinion in order to prevail.”
Reid v. State, 972 So. 2d 298, 300 (Fla. 4th DCA 2008) (quoting Hill v.
State, 477 So. 2d 553, 556 (Fla. 1985)). However, a juror who can lay aside
any bias or prejudice, and render a verdict solely on the evidence presented
and the instructions on the law given by the court, may be permitted to


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serve on the case. See Dorsett v. State, 941 So. 2d 587, 588 (Fla. 4th DCA
2006).

   Here, when defense counsel further inquired about Juror 1-5’s beliefs,
the juror explained that someone who confessed to a serious crime would
have to have been involved in some way, thus implying that he already
believed appellant was involved in the alleged offenses. As a result, Juror
1-5 should have been stricken for cause because of his preconceived
beliefs regarding involuntary confessions.

    In Montozzi v. State, 633 So. 2d 563, 565 (Fla. 4th DCA 1994), a
prospective juror expressed disapproval of the kind of activity defendant
was involved in based on her experiences. Following the State’s attempt
to rehabilitate the juror, the trial court attempted further rehabilitation, to
which the juror responded that she “hoped” she could be fair and
impartial, and equivocally agreed that she would be able to follow the law.
Id. at 564-65. This court held, “While this is indeed an area of trial judge
discretion, nevertheless we have ordered new trials ourselves where we
were convinced of the existence of reasonable doubts.” Id. at 565.
“Qualified promises by a would-be juror to be fair and impartial are simply
not enough to guarantee a fair trial, at least in the face of such prior
testimony as this juror gave.” Id. This court further reasoned:

      Few jurors would resolutely continue to admit that they have
      a bias after having a prosecutor and a trial judge cloak them
      in a duty to be fair. Some answers by prospective jurors
      should simply be deemed alone disqualifying, no matter how
      earnestly counsel and the trial judge seek to save them. In
      this case, the bell earlier rung by this juror was sounded again
      even while she was being “rehabilitated.”

Id.

    Like the facts in Montozzi, Juror 3-7 also candidly expressed difficulty
accepting that a person accused of a serious crime would falsely admit
guilt. He qualified his statement by saying he would be fair and impartial,
but when subsequently asked about whether false confessions were
possible, he admitted, “It’s possible. But a crime of this nature I mean
who would be crazy enough to admit guilt?” (Emphasis added). Even
though Juror 3-7 unequivocally stated that he would be fair and impartial,
his colloquy ended with a rhetorical question that reiterated his prior
statements of potential bias. Accordingly, it was error to deny the cause
strike against Juror 3-7 as well.


                                      5
   2. Testimony Read-Back
    Trial courts have “wide latitude in the area of the reading of testimony
to the jury” pursuant to Florida Rule of Criminal Procedure 3.410. Avila
v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001). As such, the standard
of review for evaluating a trial court’s decision regarding the read-back of
requested testimony is abuse of discretion. See Garcia v. State, 644 So. 2d
59, 62 (Fla. 1994). This court and others have determined that a play-
back of a portion of direct-examination, without the relevant cross-
examination, can be error if doing so is misleading or emphasizes one
party’s version of events. See Mullins v. State, 78 So. 3d 704, 705 (Fla. 4th
DCA 2012); Gormady v. State, 185 So. 3d 547, 551 (Fla. 2d DCA 2016).

   In Mullins, the defendant claimed the trial court erred in allowing the
jury to hear the play-back of specific direct-examination testimony by not
replaying the cross-examination of the same subjects. 78 So. 3d at 705.
The jury specifically asked for play-back of the testimony of two different
witnesses relating to a specific event. Id. In response, the trial court
replayed the relevant portions of the witnesses’ testimony on direct
examination, but did not replay the relevant cross-examination testimony.
Id. This court found that the trial court erred and held that “the partial
play-back served to emphasize a version of events favorable to the State
and diminish a version favorable to the defense.” Id. at 706.

   Most recently in Gormady, the trial court improperly permitted the jury
to cease the read-back of the investigating detective’s testimony at any
time. 185 So. 3d at 551. The Second District relied on Mullins to
determine that allowing the jury to hear a partial read-back without
hearing cross-examination testimony placed undue emphasis on and
bolstered the State’s version of events concerning the charged offenses. Id.

    The rule expressed in both Mullins and Gormady provides that when a
jury requests a play-back of testimony, the trial court must generally
furnish both direct- and cross-examination testimony to the jury to ensure
fairness when the portion of the testimony requested involves an essential
element of any of the charged offenses. See Mullins, 78 So. 3d at 706;
Gormady, 185 So. 3d at 551-52.

   In this case, the play-back of the first twenty minutes of the minor
victim’s testimony exclusively supported the State’s case against
appellant. The failure to include in the play-back for the jury the cross-
examination concerning the subjects discussed during the first twenty
minutes of the victim’s testimony resulted in unduly emphasizing the
State’s version of events.

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    Since the trial court failed to ascertain what specific subject matter the
jury sought from the testimony, refusing to include the related cross-
examination testimony was error. In so holding, we acknowledge a jury’s
practical ability to decide what evidence to focus on during its
deliberations. The fact that this jury requested to rehear only a portion of
a witness’s direct testimony provides no reason to create a bright-line rule
that in all cases a trial court is required to force-feed the jury a play-back
of testimony it expressly deems unnecessary. However, given the lack of
inquiry into the specifics of the testimony to be reheard, the court in this
case erred by not requiring the jury to rehear the relevant cross-
examination testimony without confirming that the jury had no need for
it.

   The State argues that the failure to play-back the victim’s relevant
cross-examination testimony was harmless error. The harmless error test
requires the State “to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict.” Ventura v. State, 29 So.
3d 1086, 1089 (Fla. 2010) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138
(Fla. 1986)). Because the first twenty minutes of the victim’s direct
testimony at trial introduced the only evidence of an incident that allegedly
occurred before she was twelve, we conclude that the State has not met its
burden to show that trial court’s partial play-back was not harmful as to
the charge of lewd or lascivious molestation of a child under the age of
twelve.

   In conclusion, we find that the trial court’s failure to grant appellant’s
for cause challenges as to Jurors 1-5 and 3-7 denied him a fair trial.
Moreover, we cannot say beyond a reasonable doubt that the trial court’s
partial play-back did not contribute to appellant’s conviction for lewd or
lascivious molestation of a child under the age of twelve. Therefore, we are
compelled to reverse and remand for a new trial on all counts.

   Reversed and remanded for a new trial.

CIKLIN and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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