| [1] | Supreme Court of Florida |
| [2] | No. SC90952 |
| [3] | 2000.FL.0046086 <http://www.versuslaw.com> |
| [4] | June 15, 2000 |
| [5] | JOAQUIN J. MARTINEZ, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | An Appeal from the Circuit Court in and for Hillsborough County, Hon.
J. Rogers Padgett, Judge - Case No. 96-1465 |
| [7] | Peter Raben of the Law Offices of Peter Raben, P.A., Miami, Florida,
for Appellant Robert A. Butterworth, Attorney General, and Candace M.
Sabella, Assistant Attorney General, Tampa, Florida, for Appellee Sharon
L. Kegerreis and Mayda Prego of Hughes Hubbard & Reed, Llp, Miami,
Florida, for Ilustre Colegio De Abogados De Madrid ("Madrid Bar
Association") Amicus Curiae |
| [8] | The opinion of the court was delivered by: Per Curiam. |
| [9] | Joaquin J. Martinez appeals his convictions of armed burglary, two
counts of first-degree murder, and sentence of death. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const. |
| [10] | FACTS |
| [11] | Martinez was charged with armed burglary and two counts of
premeditated murder for the killing of Douglas Lawson and Lawson's
girlfriend Sherrie McCoy-Ward. The jury convicted Martinez of both murders
and the trial court imposed a sentence of death for the murder of
McCoy-Ward and a sentence of life imprisonment without the possibility of
parole for the murder of Lawson. |
| [12] | The bodies of the victims were found in their home on October 31,
1995, by McCoy-Ward's sister, Tina Jones. Witness testimony at trial
placed the murders as having occurred between the afternoon of October 27,
1995, and midnight on October 30, 1995. |
| [13] | Lawson died from gun-shot wounds and McCoy-Ward died from multiple
stab wounds. Although the victims had been shot and stabbed, the police
did not find any murder weapons at the scene. Forensic experts combed the
residence, lifting latent fingerprints and collecting pieces of hair,
clothing, fingernails, fiber samples and blood for examination. However,
despite the collection of more than one hundred samples of blood, hair,
fingernails, cigarette butts and similar physical evidence, no evidence
linked Martinez to the murders. |
| [14] | The initial investigation revealed no signs of forced entry and no
personal items appeared to be missing from the victims' residence.
However, investigators found two Rottweiler dogs locked away in an
upstairs bedroom, expensive music equipment and a substantial amount of
hidden money in the house. At the conclusion of the crime scene
investigation, police had no leads. Nonetheless, the police did find a
list of names and telephone numbers on a piece of paper discovered in the
kitchen. The police began telephoning the numbers listed, including a
pager number listed by the name "Joe." |
| [15] | After leaving several messages on "Joe's" pager number, the police
eventually received a call on January 27, 1996, from Sloane Martinez, the
defendant's ex-wife. Sloane Martinez informed the police that she had kept
Martinez's pager after their divorce. Detective Michael Conigliaro, the
lead investigator on the case, then went to Sloane's home where she
informed him of her growing suspicions of Martinez's involvement in the
homicides. While the detective was at her home, Sloane received a phone
call from Martinez and she invited the detective to listen in on their
conversation. Detective Conigliaro testified that he heard Sloane telling
Martinez that a homicide detective had been paging her. During that phone
conversation, Detective Conigliaro also heard Martinez tell Sloane that
"this is something that I explained to you before, and that I am going to
get the death penalty for what I did." Sloane asked Martinez if the
incident involved the Lawson case, and Martinez responded, "No, I can't
talk to you about it on the phone right now." |
| [16] | After this conversation, Sloane agreed to allow authorities to wire
her house for audio and video recording and to attempt to engage Martinez
in conversation regarding the double homicides. The following day, January
28, 1996, Martinez arrived at Sloane's house. Detective Conigliaro
testified that he, Corporal Baker, and Assistant State Attorney Karen Cox
*fn1 watched and listened to the
conversation from a remote location as it was being recorded by both audio
and videotape. Although Martinez did not confess during the conversation
with Sloane, he did make several remarks that could be interpreted as
incriminating. After leaving Sloane's home, Martinez was immediately
arrested by police. |
| [17] | The State's case at trial focused on the testimony of Sloane Martinez
and the audio-video tape. Sloane testified concerning the above-described
conversations as well as her observations of Martinez's behavior from
October 27, 1995, until the time of his arrest. She also testified about
other statements that Martinez made to her that heightened her suspicions
regarding his involvement with the murders. |
| [18] | The State introduced other circumstantial evidence. For example, Laura
Babcock, the defendant's ex-fiancee, testified. On Friday morning, October
27, 1995, Martinez left her apartment and told her that he was going to
see his brother Ronnie, and that he planned to get in touch with a friend,
"Michael," who owed him money. She also testified that when the defendant
returned to her apartment between 11 p.m. and midnight, he was wearing
clothing that did not fit him properly and he had a swollen lip and
scraped knuckles. |
| [19] | In addition to this testimony, Eden Dominick, a friend of Babcock and
Martinez, testified that Martinez arrived at her apartment around 8 p.m.
on Friday, October 27. According to Dominick, Martinez appeared as if he
had been in a fight. Before leaving, Martinez asked to leave a briefcase
at Dominick's residence, but she refused his request. |
| [20] | Several jail inmates also testified against Martinez. One jail inmate,
Neil Ebling, testified that Martinez admitted to committing the murders.
Two other inmates, Larry Merritt and Gerrard Jones, testified about a
scheme that Martinez designed in jail to implicate another individual for
the crimes. Jones claimed that Martinez agreed to pay Jones $400 for
assisting him with his case. |
| [21] | The defense called several witnesses to establish an alibi and to
contradict the testimony of the jail inmates. However, defense counsel
never filed a notice of an alibi defense or requested a jury instruction
on an alibi defense. *fn2 |
| [22] | Martinez raises ten issues on appeal. *fn3 Because we find that error occurred when the
prosecutor elicited testimony from Detective Conigliaro as to his opinion
of Martinez's guilt, we discuss this point first. |
| [23] | OPINION OF GUILT TESTIMONY |
| [24] | The State called the lead investigator, Detective Conigliaro, to
testify as to his investigation of the homicides. During the
investigation, Detective Conigliaro, with Sloane Martinez's permission,
listened to Sloane's telephone conversation with Martinez on January 27.
The following day, he also monitored the audio-visual surveillance of the
subsequent conversation between Sloane and Martinez that ultimately led to
his arrest. During the State's redirect examination of Detective
Conigliaro, the prosecutor asked the following: |
| [25] | A. Corporal, when you were listening to that tape live, when you were
listening to what was going on live on January 28th, right after that you
said that you were authorized to arrest? |
| [26] | A. Absolutely. |
| [27] | Q. Was there any question, not based on your memory, not based on the
transcript, was there any question in your mind that at at that time that
the Defendant had murdered Douglas Lawson? |
| [28] | The trial court overruled defense counsel's objection and the
prosecutor continued to inquire about Detective Conigliaro's opinion of
the defendant's guilt: |
| [29] | Q. Was there any doubt in your mind based on what he said then that he
was responsible for the murder of Douglas Lawson? |
| [30] | A. There was no doubt that he did it. |
| [31] | The prosecutor highlighted this opinion testimony during closing
argument: "You see, after the video tape was done, as Corporal Conigliaro
told you, and as he told you, Baker and another Assistant State Attorney,
Ms. Cox, no one had a doubt. He was arrested because nobody had a doubt
that he was guilty." (Emphasis supplied.) |
| [32] | We begin our analysis with the basic proposition that a witness's
opinion as to the guilt or innocence of the accused is not admissible. See
Glendening v. State, 536 So. 2d 212, 221 (Fla. 1988) (citing Lambrix v.
State, 494 So. 2d 1143, 1148 (Fla. 1986)); Henry v. State, 700 So. 2d 797,
798 (Fla. 4th DCA 1997); Zecchino v. State, 691 So. 2d 1197, 1198 (Fla.
4th DCA 1997); Spradley v. State, 442 So. 2d 1039, 1043 (Fla. 2d DCA
1983); Gibbs v. State, 193 So. 2d 460, 463 (Fla. 2d DCA 1967). Section
90.703, Florida Statutes (1997), which provides that "[t]estimony in the
form of an opinion or inference otherwise admissible is not objectionable
because it includes an ultimate issue to be decided by the trier of fact,"
would appear to allow opinion testimony of the defendant's guilt. However,
such testimony is precluded on the authority of section 90.403, Florida
Statutes (1997), which excludes relevant evidence on the grounds that its
probative value is substantially outweighed by unfair prejudice to the
defendant. See Glendening, 536 So. 2d at 221. "Any probative value such an
opinion may possess is clearly outweighed by the danger of unfair
prejudice." Id. We find "[i]t is clear that error is occasioned where a
witness, including a lay witness, is permitted to offer her opinion about
the guilt of the defendant." Zecchino, 691 So. 2d at 1198. |
| [33] | In Henry, the Fourth District addressed the effect of improper
testimony giving an opinion of guilt. 700 So. 2d at 798. The defendant in
Henry was charged and convicted of robbery after being identified by a
high school student who claimed that the defendant had stolen a gold chain
from the student at school. Following the incident, the student victim ran
to his mother's vehicle in the school parking lot and informed her of the
theft. After describing the perpetrator to his mother, the mother recalled
seeing a person who matched the perpetrator's description near her vehicle
just moments before the theft. See id. At trial, the prosecutor asked the
mother, "Do you have any doubt that this [defendant] is the person who
robbed your son?" and the witness answered, "No." Id. Defense counsel
objected to the question as calling for a legal conclusion concerning the
guilt of the accused and the prosecutor subsequently apologized. See id.
However, on redirect examination of the mother, the prosecutor again
asked, over the defense's objection, whether the witness had "any doubts
that we are here charging the wrong person." Id. The witness responded
that she had no doubt at all. See Henry, 700 So. 2d at 798. |
| [34] | The Fourth District concluded that the mother's improper opinion
testimony could not have been harmless because it may have impermissibly
bolstered the other evidence of identification. See id.; see also
Zecchino, 691 So. 2d at 1198 (reasoning that improper opinion testimony of
the defendant's guilt was not harmless in a circumstantial evidence case
where identity was at issue). Reversing the defendant's conviction, the
Fourth District in Henry held that the mother's opinion of guilt testimony
was improper because it invaded the province of the jury. See Henry, 700
So. 2d at 798. |
| [35] | Further, there is an increased danger of prejudice when the
investigating officer is allowed to express his or her opinion about the
defendant's guilt. In this situation, an opinion about the ultimate issue
of guilt could convey the impression that evidence not presented to the
jury, but known to the investigating officer, supports the charges against
the defendant. See United States v. Young, 470 U.S. 1, 18-19 (1985). In
the context of an improper prosecutorial argument to the jury, the United
States Supreme Court in Young explained why it is improper for a
representative of the government to express his or her personal opinion
concerning the guilt of the accused: |
| [36] | [S]uch comments can convey the impression that evidence not presented
to the jury, but known to the prosecutor, supports the charges against the
defendant and can thus jeopardize the defendant's right to be tried solely
on the basis of the evidence presented to the jury; and the prosecutor's
opinion carries with it the imprimatur of the Government and may induce
the jury to trust the Government's judgment rather than its own view of
the evidence. Id. (emphasis supplied); see also Berger v. United States,
295 U.S. 78, 88-89 (1935) (finding prosecutorial argument to be improper
because it suggested to the jury that the prosecution had personal
knowledge of the defendant's guilt). |
| [37] | Although in a different context, this Court has expressed its concern
that error in admitting improper testimony may be exacerbated where the
testimony comes from a police officer. See Rodriguez v. State, 609 So. 2d
493, 500 (Fla. 1992). In Rodriguez, a police officer corroborated a story
told by a testifying witness by discussing the witness's prior consistent
statements, which were not properly admissible. See id. We cautioned that
"[w]hen a police officer, who is generally regarded by the jury as
disinterested and objective and therefore highly credible, is the
corroborating witness, the danger of improperly influencing the jury
becomes particularly grave." Id. (quoting Carroll v. State, 497 So. 2d
253, 257 (Fla. 3d DCA 1985)). |
| [38] | In this case, it was ultimately for the jury to decide whether the
statements made by Martinez to Sloane established his guilt. The jury
heard the audio-video taped conversation and, as the trier of fact, was
charged with the responsibility of determining the weight to be given to
that evidence. It was an impermissible invasion of the province of the
jury for Detective Conigliaro, the lead investigating officer in this
case, to express his opinion that after he listened to the conversation as
it was occurring he had "no doubt" that Martinez committed the murders.
Further, the clear and equally impermissible implication in this case was
that Detective Conigliaro obtained some additional knowledge from
monitoring the surveillance live that was unavailable to the jury.
However, there was no evidence presented to the jury that Detective
Conigliaro had heard some other statement by Martinez, not recorded on the
video tape, that would lead him to have "no doubt" of Martinez's guilt.
Thus, the admission of this opinion of guilt testimony was
error. |
| [39] | Having found preserved error in the admission of Detective
Conigliaro's opinion of Martinez's guilt, we must assess whether the error
is harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
Although in some cases opinion of guilt testimony may be harmless, see
Zecchino, 691 So. 2d at 1197-98, this is not such a case. A "harmless
error analysis requires an examination of the entire record." DiGuilio,
491 So. 2d at 1135. In this case, no physical evidence linked Martinez to
the crime. By far, the most potentially damaging piece of evidence was the
surveillance audio-videotape that was monitored by Detective Conigliaro
and other State agents. In light of the lack of physical evidence in this
case, the audio-videotape was a critical piece of evidence. The
prosecution, in seeking a conviction and death sentence, relied heavily
upon the interpretation to be drawn from a series of potentially
incriminating remarks made during this conversation. |
| [40] | We find that the prejudice flowing from the erroneous admission of
this testimony was compounded by the State's closing argument. The
assistant state attorney told the jury: "You see, after the video tape was
done, as Corporal Conigliaro told you, and as he told you, Baker and
another Assistant State Attorney, Ms. Cox, no one had a doubt. He was
arrested because nobody had a doubt that he was guilty." (Emphasis
supplied.) Because no one other than Detective Congliaro had testified to
his or her opinion of guilt, this argument was not even based on evidence
in the record. Further, this argument was improper because prosecutors may
not directly or indirectly express their opinions as to the credibility of
witnesses or the guilt of the defendant. See Young, 470 U.S. at 18-19;
D'Ambrosio v. State, 736 So. 2d 44, 45-49 (Fla. 5th DCA 1999). Moreover,
as we recently expressed: |
| [41] | It is particularly improper, even pernicious, for the prosecutor to
seek to invoke his personal status as the government's attorney or the
sanction of the government itself as a basis for conviction of a criminal
defendant. |
| [42] | The power and force of the government tend to impart an implicit stamp
of believability to what the prosecutor says. That same power and force
allow him . . . to impress on the jury that the government's vast
investigatory network, apart from the orderly machinery of the trial,
knows that the accused is guilty or has non-judicially reached conclusions
on relevant facts which tend to show he is guilty. Ruiz v. State, 743 So.
2d 1, 4 (Fla. 1999) (quoting United States v. Garza, 608 F.2d 659, 662
(5th Cir. 1979)). |
| [43] | By arguing that Martinez was arrested because the State's agents who
listened to the videotape had no doubt of his guilt, the prosecutor
engaged in impermissible bolstering of the State's case by asserting the
superior knowledge and certainty of the government's agents. |
| [44] | Therefore, based on an examination of the record as a whole, we cannot
find the improper opinion of guilt testimony to be harmless beyond
reasonable doubt, especially when it was again highlighted in closing
argument. See DiGuilio, 491 So. 2d at 1138-39. In making this
determination, we further examine the other errors claimed in closing
argument because "the harmless error test requires an examination of the
entire record. The reviewing court must examine both the permissible
evidence on which the jury could have legitimately relied and the
impermissible evidence which might have influenced the jury's verdict."
Whitton v. State, 649 So. 2d 861, 865 (Fla. 1994). |
| [45] | OTHER CLOSING ARGUMENT ERRORS |
| [46] | In addition to raising the prosecutor's improper use of opinion
testimony during closing argument, Martinez also claims on appeal that the
prosecution made numerous other improper remarks in closing argument. In
particular, Martinez takes issue with an impermissible reference to the
term "injunction" and an attack on the defendant's character during
closing argument. |
| [47] | As to the prosecutor's use of the term "injunction" in closing
argument, the trial court had ruled prior to trial pursuant to a motion in
limine that the prosecutor was prohibited from using that term. *fn4 Despite the fact that the court
specifically instructed the prosecution to inform the State's witnesses
not to mention the word "injunction" during their testimony, Sloane
Martinez used the term during her direct examination. The trial court
sustained a timely objection by the defense but denied a subsequent motion
for mistrial. Later, the prosecutor himself violated the motion in limine
when he twice referred to the "injunction" during closing argument.
Although this reference was not contemporaneously objected to, the defense
subsequently made a motion for a mistrial, arguing that it created a false
impression of spousal abuse. |
| [48] | "[P]rosecutorial improprieties must be viewed in the context of the
record as a whole to determine if a new trial is warranted." Sireci v.
State, 587 So. 2d 450, 452 (Fla. 1991). We do not find that the court
abused its discretion when it refused to grant a mistrial solely on the
basis of the use of the term "injunction" by the witness and prosecution.
See Cole v. State, 701 So. 2d 845, 853 (Fla. 1997), cert. denied, 523 U.S.
1051 (1998); Sireci, 587 So. 2d at 452. However, it is of concern to this
Court that the prosecution violated the trial court's ruling. We find it
difficult to understand how the interests of justice are furthered when a
prosecutor runs the risk of reversal by twice violating a specific
pretrial ruling. |
| [49] | Further, during closing argument, the prosecutor also commented on
Martinez's character by stating: |
| [50] | You see, when you think about the defendant, you've got to realize who
you're dealing with here. You think a man who thinks about being, number
one, a man who doesn't tell the truth. He doesn't tell the truth to the
women he's involved with; he cheats on them; he runs around on them, not
just once, not just twice. That's who we're dealing with here. That's who
he's looking out for. |
| [51] | However, the well-established rule in Florida relating to character
evidence is: |
| [52] | The character of a person accused of crime is not a fact in issue, and
the state cannot, for the purpose of inducing belief in his guilt,
introduce evidence tending to show his bad character or reputation, unless
the accused, conceiving that his case will be strengthened by proof of
good character, opens the door to proof by the prosecution that his
character in fact is bad. This salutary rule is not permitted to be
violated by the state, even when the defendant offers himself as a
witness. Jordan v. State, 107 Fla. 333, 334, 144 So. 669, 669
(1932). |
| [53] | Because Martinez did not testify or present witnesses who testified
about his good character, the defense did not open the door to enable the
prosecution to present evidence of bad character. See id. The type of
character attack utilized by the prosecutor has no place in closing
argument. |
| [54] | Standing alone, these comments would not constitute fundamental error,
see Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996), nor would they have
warranted a mistrial. See Cole, 701 So. 2d at 853. Thus, neither the
improper references to the "injunction" nor the attack on Martinez's
character in closing argument would alone require reversal. However, it is
appropriate to consider both the preserved and unpreserved errors in
determining whether the preserved error was harmless beyond a reasonable
doubt. See Gore v. State, 719 So. 2d 1197, 1202 (Fla. 1998); Whitton, 649
So. 2d at 865; Jackson v. State, 575 So. 2d 181, 189 (Fla. 1991). Thus,
these additional closing argument errors further support our determination
that the error in admitting the properly preserved opinion of guilt
testimony was not harmless beyond a reasonable doubt. |
| [55] | STATE'S USE OF TRANSCRIPT |
| [56] | Although our reversal renders it unnecessary to address the remaining
points, in order to assist the trial court on remand, we deem it
appropriate to address Martinez's claims regarding the State's use of the
audio-video tape of the conversation and the use of a transcript of that
conversation by the jury as an aid while the audio-video tape was being
played. |
| [57] | Before trial, the defense unsuccessfully moved to exclude the police
recording alleging that it was "to a large extent unintelligible and
therefore incomplete." The defense also objected to a transcript of the
recording prepared to assist jurors in their review and understanding of
the audio-video tape. At the pretrial hearing, Sloane Martinez and
Detective Conigliaro testified as to how they prepared the transcript.
Over a three-day period, both Sloane Martinez and Detective Conigliaro sat
in a room where they replayed the tape making notations as to what they
heard on the recording. Sloane Martinez testified that, based on her
memory of events and having listened to the tape, the transcript was an
accurate transcription of the intercepted conversation between herself and
her ex-husband. |
| [58] | As the conversation occurred, Detective Conigliaro, Corporal Baker,
and Assistant State Attorney Karen Cox listened to the police surveillance
from a remote location through a listening device. Detective Conigliaro
also verified the accuracy of the transcript, relying on having listened
to the conversation as it was taking place as well as listening to the
videotape. Detective Conigliaro also testified that the quality of what he
heard as the conversation was taking place was better than the recorded
version. Moreover, he testified that he and Sloane Martinez were extremely
conservative in preparing the transcript and they did not include items
that they did not hear. |
| [59] | The trial court ruled that the audio-video tape could be played for
the jury and that the State could provide jurors with the copies of the
written transcript. The jurors were allowed to read the thirty-three- page
transcript as an unadmitted court exhibit while prosecutors played the
surveillance tape to the jurors. However, the trial court ruled that
jurors could not take copies of the transcript back to the jury room
during deliberations. |
| [60] | We begin first with the law concerning the use of the audio-video
tape. The general rule in Florida regarding admissibility of partially
inaudible tape recordings is that "[p]artial inaudibility or
unintelligibility is not a ground for excluding a recording if the audible
parts are relevant, authenticated, and otherwise properly admissible."
Odom v. State, 403 So. 2d 936, 940 (Fla. 1981). Such recordings are
admissible unless the inaudible and intelligible portions are so
substantial as to deprive the audible portions of relevance. See id.;
Henry v. State, 629 So. 2d 1058, 1059 (Fla. 5th DCA 1993); Harris v.
State, 619 So. 2d 340, 342 (Fla. 1st DCA 1993). |
| [61] | On appeal, Martinez does not assert that the trial court improperly
admitted the audio-video tape but asserts error with regard to the jurors'
use of the transcript. Martinez argues that the transcript should not have
been used at trial because: (1) it was not properly authenticated; (2) it
included portions that were inaudible on the tape; and (3) the trial court
did not give a jury instruction limiting the jury's consideration of the
transcript. |
| [62] | The Fourth District has explained the general law in Florida that the
jury may "view an accurate transcript of an admitted tape recording as an
aid in understanding the tape so long as the unadmitted transcript does
not go back to the jury room or become a focal point of the trial." Macht
v. State, 642 So. 2d 1137, 1138 (Fla. 4th DCA 1994). In Hill v. State, 549
So. 2d 179, 182 (Fla. 1989), we found no error where the jury utilized a
transcript. In Hill, the defendant did not claim that the transcript was
inaccurate, the jury did not carry the transcript into the jury room, and
the transcript did not become a focal point of the proceeding. Therefore,
the transcript did not displace the actual tape as the evidence upon which
the jury relied. |
| [63] | Similarly, in Grimes v. State, 244 So. 2d 130, 135 (Fla. 1971), the
accuracy of the transcript was not an issue. In Grimes, the transcript of
the defendant's tape-recorded statement had been properly authenticated by
the officer who recorded it. We thus explained that "the transcription was
properly authenticated by the person who took the statement and who
verified that the transcript was the same evidence as the recording." 244
So. 2d at 135. Therefore, this Court found no error where the transcript
was published to the jury, but not admitted into evidence or used by the
jurors during deliberations. See id.; see also Hill, 549 So. 2d at
182. |
| [64] | In this case, Martinez claims that it was improper to allow jurors to
use the transcript because it contained many statements that could not
actually be heard on the tape. In explaining the potential dangers from a
transcript, the United States Court of Appeals for the District of
Columbia observed: |
| [65] | A transcript repeating in written form a conversation recorded on tape
may help a juror listening to the tape follow the conversation when the
tape is of questionable clarity, or contains the voices of multiple
speakers who talk over each other or speak in quick succession.
Ironically, the same circumstances that make a transcript helpful to a
juror may prejudice the defendant if it is presented without proper
safeguards, for the only transcripts worth fighting
about are those on which important words may be susceptible to different
interpretations. After all, the jurors are likely to notice a clear
discrepancy between a tape and a transcript. United States v.
Holton, 116 F.3d 1536, 1540 (D.C. Cir. 1997) (emphasis
supplied) (citations omitted), cert denied, 522 U.S. 1067
(1998). |
| [66] | One of the primary dangers of allowing the jury to use an unadmitted
transcript is that it may become the evidence that the jury relies upon
rather than the tape itself: |
| [67] | The principal risk of indiscriminately permitting the use of
transcripts by jurors is that in the case of a poor quality or
unintelligible recording, the jurors may substitute the contents of the
more accessible, printed dialogue for the sounds they cannot readily hear
or distinguish on the tape and, in so doing, transform the transcript into
independent evidence of the recorded statements. A related risk arises
when a transcript attributes incriminating statements to a defendant that
the defendant does not admit making. Placing a transcript in the jury room
during deliberations--after the completion of the supervised, adversarial
portion of the trial--opens up the possibility that jurors will see the
transcript as a neutral exhibit placed before them by the court and
increases the chance that the document will be read without the tape
recording playing alongside for the purpose of comparison. Id. at 1540-41
(citations omitted). |
| [68] | In fact, precautionary procedures have been developed by the federal
courts to decrease the risk that jurors will rely more heavily on the
unadmitted transcript than admitted taped recordings. See, e.g., United
States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983); United States v.
Slade, 627 F.2d 293, 302 (D.C. Cir. 1980). Because of the danger that the
jury might rely on an unadmitted transcript that contains statements
attributed to the defendant that cannot be heard on the tape, we deem it
appropriate to discuss procedures for trial courts to follow when faced
with this circumstance in the future. |
| [69] | For example, as set forth in Slade, the "ideal procedure for testing
accuracy is to have the prosecution and defense attorneys stipulate to a
transcript." 627 F.2d at 302. If they cannot agree, "the second best
alternative is for the trial court to make a pretrial determination of
accuracy by reading the transcript against the tapes" to ascertain whether
the transcript is accurate. Id. |
| [70] | A third alternative is to present the jury with two transcripts,
containing both sides' versions, and let the jury determine which is more
accurate. In this situation, because no one transcript is presented as
"correct," the judge "need not necessarily listen to the tapes or pass on
the accuracy of any transcript." Id. (quoting United States v. Onori, 535
F.2d 938, 948 (5th Cir. 1976)); see also Robinson, 707 F.2d at 876 (noting
that the third method is the "least preferred method" to use during
trial). |
| [71] | While the Eighth Circuit's procedures for use of transcripts are
slightly different, its goal is consistent with the other circuits, which
is to set forth procedures to ensure the accuracy and fairness of the
transcripts. See United States v. McMillan, 508 F.2d 101, 105 (8th Cir.
1974). First, the "transcript should normally be used only after the
defendant has had an opportunity to verify its accuracy and then only to
assist the jury as it listens to the tape." Id. In cases where a defendant
disputes the accuracy of the transcript, "a foundation may first be laid
by having the person who prepared the transcripts testify that he has
listened to the recordings and accurately transcribed their contents."
Id. |
| [72] | Reviewing the available procedures for allowing juries to use
transcripts, the Sixth Circuit in Robinson ultimately
concluded: |
| [73] | We therefore reiterate our preference for using a transcript when the
parties stipulate to its accuracy. But in the absence of a stipulation, we
hold that the transcriber should verify that he or she has listened to the
tape and accurately transcribed its content. The court should also make an
independent determination of accuracy by reading the transcript against
the tape. Where, as here, there are inaudible portions of the tape, the
court should direct the deletion of the unreliable portion of the
transcript. This, however, assumes that the court has predetermined that
unintelligible portions of the tape do not render the whole recording
untrustworthy. Finally, we find submission of two versions of the
transcript prejudicial when the tape is significantly inaudible. Such a
practice would undoubtedly inspire wholesale speculation by the parties
and engender jury confusion. It would be entirely too difficult for the
jury to read two separate transcripts while listening to the tape
recording. Furthermore, this method is impractical in cases such as this
where the defendant has asserted his fifth amendment right to remain
silent. Robinson, 707 F.2d at 878-79 (emphasis supplied). |
| [74] | In recognition of the case law in this State that has allowed the use
of transcripts under certain circumstances, we set forth guidance for
trial courts facing this situation in the future. The goal is for the
trial court to balance the benefit of giving the jury an aid to
understanding the tape against the danger of allowing an unadmitted
transcript to become the evidence upon which the jury relies where neither
the judge nor jury would be able to verify the accuracy of what is
contained on the transcript. |
| [75] | Preliminarily, the trial court must determine that the unintelligible
portions of the tape do not render the whole recording untrustworthy. See
Odom, 403 So. 2d at 940; Henry, 629 So. 2d at 1059; Harris, 619 So. 2d at
342. As for the transcript, trial courts should exercise extreme caution
before allowing transcripts of recordings to be viewed by the jury. See
Robinson, 707 F.2d at 876; Slade, 627 F.2d at 302. The preferred approach
is for the parties to stipulate to the accuracy of the transcript. See
Slade, 627 F.2d at 302. If there is a dispute as to the accuracy, the
trial court should make an independent pretrial determination of the
accuracy of the transcript after hearing from persons who can properly
testify as to its accuracy. See Robinson, 707 F.2d at 876; Slade, 627 F.2d
at 302. Those who may be able to verify the accuracy of the transcript
are: (1) the actual participants to the conversation; or (2) those who
listened to or overheard the conversation as it was being recorded, so
long as such persons can establish that the quality of the conversation
that they overheard or listened to was better at the time they overheard
it than the quality of the tape recording. *fn5 |
| [76] | We emphasize that there may be a difference between tape recordings
that are difficult to hear and of poor quality and those that contain
inaudible portions. Where the tapes are partially inaudible, jurors will
be unable to make an intelligent comparison between the recording and the
transcript. Under such circumstances, "[t]he practical effect of using an
aid to comprehend unintelligible matter is that the aid becomes the
evidence." Robinson, 707 F.2d at 878. Accordingly,if the trial court
determines that there are inaudible portions of the tape, the trial court
should delete the inaudible portions from the transcript before submitting
the transcript to the jury. See id. |
| [77] | In addition, as in this case, where a transcribed version of an
audio-video tape is used as an aid to the jury and there is no stipulation
as to its accuracy, trial courts should give a cautionary instruction to
the jury regarding the limited use to be made of the transcript. *fn6 See Slade, 627 F.2d at 303. For example,
the following instruction, quoted with approval by the Fourth District,
was given by the trial court in Macht: |
| [78] | This transcript is not admitted and won't be admitted into evidence.
The evidence is what's on the tape recording. If there's a conflict
between what the transcript says and what you hear the tape says[,] the
evidence is the tape, not the transcript and if you're-if you hear a
conflict[,] what's on the tape is what the evidence is. 642 So. 2d at 1138
(alteration in original). *fn7 |
| [79] | The federal circuits that have considered this issue agree that
whenever a transcript is allowed by the trial court, it is "important that
the judge instruct the jurors that their personal understanding of the
tape supersedes the text in a transcript." Slade, 627 F.2d at 302; see
Holton, 116 F.3d at 1541; Onori, 535 F.2d at 949; McMillan,
508 F.2d at 106. In this regard, although the trial court should provide
jurors with cautionary instructions, we also note that such instructions
are "only viable when the tape is clear enough for a juror to detect that
the tape is at variance with the transcript." Robinson, 707 F.2d at
878. |
| [80] | Having reviewed the proper procedures to be employed prospectively for
using transcripts at trial, we now turn to the transcript in this case.
Martinez admits that Sloane Martinez could authenticate the transcript
because she participated in the recorded conversation. See Grimes, 244 So.
2d at 135; Macht, 642 So. 2d at 1138. However, Martinez claims that the
transcript could not be used at trial because Sloane Martinez admitted
that she alone did not prepare the transcript. Although Sloane was not
solely responsible for the preparation of the transcript, she was able to
verify its accuracy. Specifically, she testified that she recalled the
original conversation while making the transcript. In addition, she stated
that the transcript only included words that she could actually make out
from the tape. |
| [81] | Furthermore, we find no error in also allowing Detective Conigliaro to
authenticate the transcript. Detective Conigliaro testified at trial that
the conversation between Sloane and Martinez "sounded so much clearer"
from the surveillance van than it did on the audio-video taped recording.
Nevertheless, we caution that the trial court should not allow the
validity of the transcript to be bolstered by testimony from those who
simply listened to the tape after it was made. As discussed by First
District in Harris, if the authenticating witness neither participated in
nor overheard the recorded conversation as it was taking place, the
authenticating witness would be "in no better position than the jury to
determine the contents of the tape recording." Harris, 619 So. 2d at 343;
see Henry, 629 So. 2d at 1059 ("[I]t was error for the trial court to
allow the transcript to be used by the jury" where the transcript was
prepared by a person who did not witness the events recited in
transcript.). |
| [82] | We next turn to Martinez's claims that the transcript includes many
inaudible portions. In support of this, he points to comments made by the
trial court and the prosecutor as well as portions of the tape the court
reporter shows as "inaudible" that appear on the transcript. However, the
fact that the court reporter did not transcribe all of the portions that
appeared on the transcript does not establish that those portions
transcribed are in fact inaudible. Rather, it may simply show that from
the court reporter's vantage point, portions of the recording were too
difficult to hear to be able to simultaneously record them. While the
court reporter is required to transcribe the contents of the tapes as they
are played at trial, the court reporter's transcript of the tape does not
establish the inaccuracy of the transcript or the tape's audibility. See
Lawrence v. State, 632 So. 2d 1099, 1100 (Fla. 1st DCA
1994). |
| [83] | The videotape is part of the record on appeal on this case. We agree
that the videotape is of poor quality and portions of the conversation are
difficult to hear for a variety of reasons, including young children
crying, occasional passing trains, and background interference on the
tape. Thus, if upon remand Martinez is able to establish that there is an
inaccuracy in the transcript or that a portion of the tape is inaudible
(as opposed to difficult to hear), the court should exercise its
discretion in deleting those portions of the transcript. However, because
Sloane Martinez participated in the actual conversation, she would be able
to testify to what Martinez actually said. See § 90.803(18)(a), Fla. Stat.
(1995). As for the use of the transcript by the jury, the transcript was
not admitted into evidence and jurors were not allowed to use the
transcript during their deliberations. Nevertheless, the transcript was
available to the jury during the playing of the video taped conversation.
It appears that the transcript was also available during Sloane Martinez's
direct examination, including when she testified as to her personal
knowledge of what was on the inaudible portions of the recorded
conversation after prosecutors played the tape to the jury. Allowing
jurors to review the transcript during both the playing of the audio-video
tape and during Sloane Martinez's testimony could have placed undue
emphasis on the transcript and we caution the trial court to ensure that
the transcript's use is limited. |
| [84] | Although the trial court did not give a cautionary instruction, we
also note that none was requested and the failure to give such an
instruction would not rise to the level of fundamental error. See Archer
v. State, 673 So. 2d 20, 20-21 (Fla. 1996). However, because we are
reversing for other reasons, we direct that if, upon remand, the trial
court again decides it permissible to allow the jury to use a transcript
of the conversation as an aid to understanding, a cautionary instruction
should be given. |
| [85] | Accordingly, for the reasons stated in this opinion, we reverse
Martinez's convictions, vacate his sentences, and remand for a new
trial. |
| [86] | It is so ordered. |
| [87] | HARDING, C.J., and SHAW, PARIENTE, LEWIS and QUINCE, JJ.,
concur. |
| [88] | ANSTEAD, J., specially concurs with an opinion. |
| [89] | WELLS, J., concurs in result only with an opinion. |
| [90] | ANSTEAD, J., specially concurring. |
| [91] | I concur in the majority opinion and write separately only to note my
view that while it is clear that the tape recording was sufficiently
audible to be admitted, a transcript of the tape recording made in this
case should not be used for any purpose upon retrial. It is for the jury
to determine what is contained in the tape recording. Of course, those
that listened to the conversation being recorded can testify to what they
heard. But permitting that testimony is far different than presenting the
jury with a tangible transcript that contains statements that the jurors
themselves cannot hear when listening to the recording. The recording
"speaks for itself," and is the best evidence of what it
says. |
| [92] | WELLS, J., concurring in result only. |
| [93] | I concur only in the result in this case. I conclude that the opinion
of the police officer does create the same serious adverse effect which
concerned the United States Supreme Court in United States v. Young, 470
U.S. 1, 18-19 (1985). At trial, the force of the police officer's opinion
of guilt is prejudicially irrelevant in favor of the unique responsibility
of the jury to make that decision. |
| [94] | I do not join in the argument portion of the opinion. I do not join in
what I am concerned is an expansion of the doctrine of fundamental error
as it relates to closing argument. |
| [95] | I do not join in that portion of the opinion with respect to the use
of a transcript that sets out a procedure for the future use of such
transcripts. While I do not take particular issue with any part of the
procedure, I believe the establishment of such procedures should be done
by rule and not by opinion. By proposing a rule, the pros and cons of
various parts of a procedure are able to be thought through so that
potential problems with the procedure will be better understood. That does
not happen when we do this in an opinion. I am wary of unintended
consequences. Therefore, I cannot join. |
|
| |
| Opinion Footnotes | |
|
| |
| [96] | *fn1 Although Assistant State Attorney
Karen Cox, the wife of lead prosecutor Nicholas Cox, was apparently
involved in the investigation of the murders, she did not participate in
the prosecution of Martinez during the trial. In addition, neither
Assistant State Attorney Karen Cox nor Corporal Baker testified as
witnesses at trial. |
| [97] | *fn2 Martinez raises his trial
attorney's failure to request an instruction as a claim of ineffective
assistance of counsel as part of his first point on appeal. With rare
exception, ineffective assistance of counsel claims are not cognizable on
direct appeal. See Kelley v. State, 486 So. 2d 578, 585 (Fla. 1986); State
v. Barber, 301 So. 2d 7, 9 (Fla. 1974); see also Blanco v. Wainwright, 507
So. 2d 1377, 1384 (Fla. 1982) ("There are rare exceptions where appellate
counsel may successfully raise the issue on direct appeal because the
ineffectiveness is apparent on the face of the record and it would be a
waste of judicial resources to require the trial court to address the
issue.") Because we are not presented with a case where ineffective
assistance of counsel is apparent on the face of the record and are
reversing for a new trial on the basis of other errors, we do not need to
address this point. |
| [98] | *fn3 The claims are: (1) the
cumulative nature of trial court errors, discovery violations,
prosecutorial misconduct, and ineffective assistance of counsel resulted
in a fundamentally flawed trial and denied the defendant his
constitutional right to a fair proceeding; (2) the prosecutor violated the
discovery rules, specifically Florida Rule of Criminal Procedure 3.220(j),
by failing to advise the defense of changes in witnesses' testimony; (3)
the trial court erred in failing to instruct the jury regarding the
defendant's alibi defense; (4) Martinez was deprived of effective
assistance of trial counsel in violation of his constitutional rights; (5)
the trial court erred in permitting jurors to view a state- prepared
transcript of an audio-video tape that contained the defendant's
incriminating remarks; (6) the prosecutor committed misconduct violating
Martinez's right to a fair trial by (a) eliciting Detective Conigliaro's
opinion as to the defendant's guilt; (b) referring to Detective
Conigliaro's opinion of defendant's guilt during closing argument; (c)
making false representations during closing argument regarding the motive
for the crimes; (d) improperly attacking Martinez's character during
summation; and (e) admitting prejudicial autopsy photographs of the
victims; (7) the trial court erred in finding Martinez guilty of burglary
and in finding the burglary to be an applicable aggravating circumstance;
(8) Florida's capital sentencing statute is unconstitutional; (9) the
trial court erred in finding the heinous, atrocious, or cruel aggravating
circumstance to be applicable; and (10) the imposition of the death
penalty is disproportionate in this case. |
| [99] | *fn4 Martinez filed a motion in limine
before trial to prevent the State from referring to the word "injunction"
out of fear that it would prejudice him because the jury would infer that
the injunction referred to spousal abuse or stalking. The Court granted
Martinez's motion. |
| [100] | *fn5 We do not address the situation
where an expert witness professionally skilled in understanding inaudible
and indistinguishable tape recordings testifies that the transcript is an
accurate rendition of the tape recording. See Henry v. State, 629 So. 2d
1058, 1059 (Fla. 5th DCA 1993); Harris v. State, 619 So. 2d 340, 343 (Fla.
1st DCA 1993). The considerations and procedures used in such cases to
determine if a transcript is admissible are beyond the scope of this
opinion. |
| [101] | *fn6 Because there is no standard
cautionary jury instruction on the use of transcripts, we request that the
Committee on Standard Jury Instructions in Criminal Cases study this issue
and recommend a proposed instruction. |
| [102] | *fn7 A similar admonition is found in
the Eleventh Circuit Court of Appeal Standard Instruction: Members of the
Jury: As you have heard, Exhibit has been identified as a typewritten
transcript [and partial translation from Spanish into English] of the oral
conversation which can be heard on the tape recording received in evidence
as Exhibit . [The transcript also purports to identify the speakers
engaged in such conversation.] I have admitted the transcript for the
limited and secondary purpose of aiding you in following the content of
the conversation as you listen to the tape recording, [particularly those
portions spoken in Spanish,] [and also to aid you in identifying the
speakers.] However, you are specifically instructed that whether the
transcript correctly or incorrectly reflects the content of the
conversation [or the identity of the speakers] is entirely for you to
determine based upon your own examination of the transcript in relation to
your hearing of the tape recording itself as the primary evidence of its
own contents; and, if you should determine that the transcript is in any
respect incorrect or unreliable, you should disregard it to that extent.
Eleventh Circuit Standard Trial Instruction 5 at
512-13. |