       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 11, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-424
                         Lower Tribunal No. 12-15695
                             ________________


                         Freddy Castellon-Lopez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

      ROTHENBERG, C.J.
      Freddy Castellon-Lopez (“the defendant”) appeals his convictions and

sentences on the grounds that (1) unobjected-to and allegedly improper

prosecutorial remarks constituted fundamental error, and (2) the trial court abused

its discretion when it told the jury that it could not have a read-back of trial

testimony. After carefully reviewing the record and the law, we affirm.

      We find no fundamental error in the allegedly improper prosecutorial

remarks because the remarks did not vitiate the fairness of the trial, and we decline

to discuss them further. See Chandler v. State, 702 So. 2d 186, 191 n.5 (Fla. 1997)

(finding no fundamental error and stating that some of the prosecutor’s comments

about the defendant and his counsel “were thoughtless and petty . . . but not so

prejudicial as to vitiate the entire trial”); Rodriguez v. State, 210 So. 3d 750, 754

(Fla. 5th DCA 2017) (“Fundamental error in closing arguments occurs when the

prejudicial conduct in its collective import is so extensive that its influence

pervades the trial, gravely impairing a calm and dispassionate consideration of the

evidence and the merits by the jury.”) (quotation omitted); McPhee v. State, 117

So. 3d 1137, 1139 (Fla. 3d DCA 2012).

      The defendant next argues that the trial court abused its discretion by

denying the jury’s request for a read-back of the defendant’s and the victim’s trial

testimony. However, this is not actually what occurred. The jury requested a copy




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of the transcripts of the two witnesses. The trial court denied the jury’s request for

copies, but informed the jury members of the following:

      Members the jury of [sic] we have received your note requesting the
      testimony of the victim and of the defendant. Please understand at this
      time there are no transcripts of the testimony of the trial [sic] had been
      prepared and would be extremely burdensome and impractical to
      watch the court reporter to read a witness’s entire testimony from the
      reporter’s stenographic notes. If you can identify a very specific
      portions of the testimony that you wish to have read to you I can ask
      the court reporter to attempt to do that. Other than as to such very
      specific portions, however, I ask that you rely on your recollection.

      First, we note that the trial court correctly denied the request for copies of

the transcripts. See Hazuri v. State, 91 So. 3d 836, 841 (Fla. 2012) (stating that

“trial judges have absolutely no discretion in permitting a jury to receive physical

transcripts”). Second, the trial court’s remarks to the jury were entirely appropriate.

Pursuant to Hazuri, if a trial court receives a general request for transcripts, then it

must inform the jury that it cannot provide them with transcripts, explain that the

court may provide the jury with read-backs of trial testimony, and instruct the jury

to specify which portions of the testimony it wishes to review. Id. at 846. (adopting

the following two rules: “(1) a trial court should not use any language that would

mislead a jury into believing read-backs are prohibited, and (2) when a jury

requests trial transcripts, the trial judge should deny the request, but inform the

jury of the possibility of a read-back.”).




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      The trial court complied with these requirements. Rather than misleading the

jury into believing that read-backs are prohibited, the trial court specifically

informed the jury that a read-back is permitted, and asked the jury to specify what

portions of the testimony it would like to hear. Lastly, we note that the trial court’s

offer to have whatever portions of the testimony the jury requested read back to

them was more than what defense counsel requested. Defense counsel requested

that the trial court merely instruct the jury to rely on its recollection of the

evidence. Accordingly, we find that the trial court did not abuse its discretion.

Francis v. State, 808 So. 2d 110, 130 (Fla. 2001) (stating that “courts have found

no abuse of discretion even where the trial judge has, without much consideration,

entirely rejected the jury’s request for a read back”). We find that the defendant’s

remaining arguments are without merit, and we therefore decline to specifically

address them.

      Affirmed.




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