                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

JOHN MCDONALD,                      NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D14-4458

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 7, 2017.

An appeal from the Circuit Court for Union County.
David L. Reiman, Senior Judge.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




WINOKUR, J.

      Appellant John McDonald appeals his conviction for two counts of vehicular

homicide. McDonald argues that the court violated Florida Rule of Criminal
Procedure 3.410 when it failed to consult with counsel before responding to a

question submitted by the jury during deliberations. We agree and reverse.1

      During its deliberations at trial, the jury sent a note to the court asking

“What is [McDonald’s] driving record like? Does he get tickets for speeding

often?” The judge wrote an answer, “You must rely on the evidence you have

heard.” Neither party objected. The jury then sent a second note reading, “Copy of

Trooper Bazinet’s report.” This report was not admitted at trial, so the court wrote

a reply note reading, “You must rely on the evidence admitted during the trial.”

Both the prosecutor and defense counsel assented to the response.

      The jury then sent a note with a third question, “Did the passenger in the

Toyota Corolla [the car struck by McDonald] have her seatbelt on?” The judge did

not discuss the note with counsel for either party. Instead, the court told the parties

that he was bringing the jury back in, without explanation. The court then made the

following statement to the jury:

                    Ladies and gentlemen, I have brought you back in
             because I know that you have already asked a couple
             questions and I have sent back a couple answers. I’m
             going to take a moment and—these are the jury
             instructions that you have copies back there in the jury
             room. I’m going to turn to page 2 of these jury
             instructions. Okay. And the second paragraph, I’m going
             to read it, and I’m going to reread it and I’m going to

      1
         We reject McDonald’s claim that the evidence was legally insufficient to
support the conviction. Because we are reversing McDonald’s conviction for new
trial, we need not address his remaining issues on appeal.
                                          2
             reread it and I’m going to reread it, and I want you to
             listen to me very carefully.
                     It is to the evidence introduced in this trial and to it
             alone that you are to look for that proof.
                     Let me read it again: It is to the evidence
             introduced in this trial and to it alone that you are to look
             for that proof.
                     Now, if you don’t understand that, I don’t mind
             keep on saying it, but the only thing that you are to
             consider is the evidence admitted in this trial. No other
             investigations, no other inquiries, no other matters are
             going to be submitted to you, nothing else. The only
             thing that you consider your verdict on is what you have
             heard from this witness stand and the exhibits produced
             during the course of the trial. Have I made myself clear?
                     Thank you. Please go back into the jury room and
             deliberate.

Defense counsel made no comment about the court addressing the jury in this

manner. Shortly after this instruction, the jury returned a guilty verdict on both

counts of vehicular homicide.

      McDonald moved for new trial, in part on the ground that the court violated

Rule 3.410, Florida Rules of Criminal Procedure, with regard to the third juror

question. 2 This rule provides as follows:

                    After the jurors have retired to consider their
             verdict, if they 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

      2
        Regarding his failure to object to the trial court’s statements to the jury at
the time they were made, McDonald alleged in his motion that his counsel had
been unaware of the third juror question until after trial.
                                         3
             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.[3]

(Emphasis supplied.) Violation of Rule 3.410 is reversible error. See Colbert v.

State, 569 So. 2d 433 (Fla. 1990). See also Bradley v. State, 513 So. 2d 112 (Fla.

1987) (“The right to participate, set forth in Ivory, includes the right to place

objections on the record as well as the right to make full argument as to why the

jury request should or should not be honored.”); Ivory v. State, 351 So. 2d 26, 27

(Fla. 1977) (“We now hold that it is prejudicial error for a trial judge to respond 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.”). We conclude that the

trial court violated this rule, and accordingly reverse and remand for a new trial.

      Reversed and remanded.

JAY and WINSOR, JJ., CONCUR.



      3
        Rule 3.410 was amended in 2015, after trial in this case. This provision is
now Rule 3.410(a), and contains slightly altered language. In re Amendments to
Florida Rules of Criminal Procedure, 188 So. 3d 764, 773 (Fla. 2015).
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