text:
    Steven HAZURI, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-61.
    Supreme Court of Florida.
    May 31, 2012.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Forrest L. Andrews, Jr., and Lunar C. Alvey, Assistant Attorneys General, Miami, FL, for Respondent.
   QUINCE, J.

Steven Hazuri seeks review of the decision of the Third District Court of Appeal in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), on the ground that it expressly and directly conflicts with decisions of the Fourth and Fifth District Courts of Appeal in Barrow v. State, 27 So.3d 211 (Fla. 4th DCA), review granted, 49 So.3d 747 (Fla. 2010), Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001), and Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue before us is whether the trial court erred in failing to inform the jury of its right to request a read-back in response to the jury’s request for trial transcripts during deliberations. We conclude that the trial court erred, that the trial court’s actions constituted reversible error, and that Ha-zuri is entitled to a new trial. Accordingly, we quash the decision of the Third District below, and approve of the reasoning applied by the district courts in Barrow, Avila, and Roper, and Judge Cope’s dissent in Hazuri.

FACTS

The following facts come from the Third District Court of Appeal’s opinion in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009):

Hazuri was tried for armed robbery and aggravated battery with a weapon. After a couple hours of deliberation, the jury sent a note to the court stating the jurors were unable to reach a verdict. The parties agreed the jury should be sent home for the evening and return the next day to continue its deliberations. The next morning, after [almost] an hour of deliberations, the jury sent a note to the court requesting trial transcripts. The following transpired:
THE COURT: Back on the record. Note for the record the presence of the defendant, his attorney, the assistant state attorney. Counsel, we have a note from the jury. Could they get transcripts from the trial. State, suggestions.
[ASSISTANT STATE ATTORNEY]: My only suggestion is that we tell them they must rely on their own recollection of the testimony.
THE COURT: [Defense counsel]. [DEFENSE COUNSEL]: My answer is you should inform the jury that they are allowed to have whatever, you know, portion of the transcript read back to them if they have a question about some evidence, but to have a set of transcripts from the trial, absolutely not.
THE COURT: There are no trial transcripts of moment. Certainly portions of the record could be read, however, I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.
[DEFENSE COUNSEL]: You are not going to advise them that they have a right to have the transcript read back?
THE COURT: They don’t have a right. It is within my discretion. [DEFENSE COUNSEL]: Would you note my objection for the record.
THE COURT: I will note your objection, counselor. I will note it for the record.
[DEFENSE COUNSEL]: You are just going to send the note back?
THE COURT: Yeah. Okay. Okay. There you go. Okay.

Hazuri v. State, 23 So.3d 857, 857-58 (Fla. 3d DCA 2009). Thereafter, Hazuri was convicted of aggravated battery with a weapon, which he then appealed to the Third District Court of Appeal. Id. at 857. On appeal, Hazuri argued that the trial court abused its discretion in refusing to inform the jury that it was entitled to have portions of the trial transcript read back to it, although it could not have a copy of any transcripts. Id. at 858. The district court first quoted Florida Rule of Criminal Procedure 3.410, which governs read-backs. Id. However, the district court noted that rather than ask for a read-back, the jury asked a specific question. Id. The court determined that the trial court’s purported answer that the jurors “must rely on their own collective recollection of the evidence,” was fair and legally accurate in relation to the question posed. Id. at 858-59. Florida Rule of Criminal Procedure 3.400, which lists the items permitted in the jury room, does not contain a provision allowing transcripts in the jury room. Id. Thus, the district court reasoned that the trial court was required to reject the jury’s request. Id. at 859. Moreover, the court was not required to advise the jury that it could request a read-back of testimony. Id.

The Third District acknowledged case law prohibiting a trial court from misleading a jury into thinking that a read-back was prohibited. Id. (citing Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). However, the district court determined that the trial court never stated that it would disobey rule 3.410 and deny a read-back if requested. Id. The Third District then distinguished the cases cited by the dissent. Id. The court determined that in two of the cases, the trial court preemptively informed the jury that there was no provision permitting a read-back of trial testimony, in direct contravention of rule 3.410. Id. (citing Huhn v. State, 511 So.2d 583, 591 (Fla. 4th DCA 1987), and Biscardi v. State, 511 So.2d 575, 580 (Fla. 4th DCA 1987)). In the third case cited by the dissent, Avila, the trial court rejected a read-back based on the erroneous impression that it was not permitted to provide a read-back of testimony of only certain witnesses. Id. (citing Avila, 781 So.2d at 414-15). In contrast, in the case before the Third District, the jury requested transcripts and the district court concluded that the trial court did not abuse its discretion in informing the jury that it could not have copies of the transcripts, and therefore had to rely on its recollection of the testimony. Id. at 859-60.

In his dissent, Judge Cope asserted that the read-back instruction timely requested by the defense should have been given. Hazuri, 23 So.3d at 861 (Cope, J., dissenting). After a brief mention of Avila, Huhn, and Biscardi, Judge Cope wrote:

With all due respect, much of the majority opinion is niggling nitpicking. The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple “no.”
The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3.410, a jury may request to have “testimony read to them,” and the court may so order.

Id. In light of this reasoning, Judge Cope concluded that the defendant was entitled to a new trial. Id.

ANALYSIS

In the only issue raised before this Court, Hazuri argues that the trial court abused its discretion in its handling of the jury’s request for trial transcripts. In this case, the jury did not specifically request a read-back. It is also significant that counsel for Hazuri requested that the trial court, in response to the jury’s request, should inform the jury of the availability of read-backs. Hazuri argues that the trial court abused its discretion in failing to inquire of the jury what portion of the transcript they wanted reviewed. However, the underlying thread of Hazuri’s argument is the assumption that a transcript request constitutes a request for a read-back. Whether this assumption is true or not is an important question for this Court to consider, as the two requests receive dissimilar treatment. The standard of review for this claim is de novo. See Bordes v. State, 34 So.3d 215, 216-17 (Fla. 4th DCA 2010) (applying de novo review to an issue involving legal determinations).

A jury’s request for a read-back of trial testimony is governed by Florida Rule of Criminal Procedure 3.410, which provides:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall 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 to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

As a general rule, trial courts have wide discretion in determining whether to grant read-back requests. In re Amends, to Fla. Rules of Civil Proc., 967 So.2d 178, 183 (Fla.2007). Indeed, “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.” Francis v. State, 808 So.2d 110, 130 (Fla.2001). In 2007, we authorized the publication and use of Standard Criminal Jury Instruction 4.4, providing a framework for acknowledging and either granting, deferring, or denying a jury’s request for a read-back of testimony. In re Amends, to the Fla. Rules of Civil Proc., 967 So.2d at 183. However, we expressed no opinion on the correctness of the instructions set forth in the appendix to that opinion, which included Standard Instruction 4.4, and emphasized that the notes and comments to the instructions were not necessarily indicative of the views of the Court as to their correctness and applicability. Id. at 184. The Notes on Use of Standard Instruction 4.4 preclude the trial court from sending transcripts to the jury room. Id. at 194.

On the other hand, the general consensus is that trial judges have absolutely no discretion in permitting a jury to receive physical transcripts. Florida Rule of Criminal Procedure 3.400(a) states that the following items are permitted in the jury room: (1) a copy of the charges against the defendant; (2) verdict forms; and (3) all things received in evidence, excluding depositions. In addition, the court is required to provide a written copy of the jury instructions to be taken into the jury room. Fla. R.Crim. P. 3.400(b). The rule’s omission of transcripts from the list of permissible items indicates that transcripts are prohibited. See Janson v. State, 730 So.2d 734, 734 (Fla. 5th DCA 1999) (holding that the trial court erred in permitting transcripts of testimony of two witnesses in the jury room). This Court has held that a transcript of prior testimony which was read to the jury during trial should not be provided to the jury during deliberations. Barnes v. State, 970 So.2d 332, 338 (Fla.2007). The transcript was not permitted because “[i]f ... the jury takes the ... transcript to be read and discussed while the oral evidence contra has in a measure faded from the memory of the jurors, it is obvious that the side sustained by written evidence is given an undue advantage.” Id. (quoting Fuller v. United States, 873 A.2d 1108, 1116-17 (D.C.2005)). Although Barnes involved a transcript of prior testimony, the risk noted by the Barnes Court is still present where the jury receives transcripts of testimony it heard in the case before it as the jury may emphasize the testimony contained in the physical transcripts over the oral testimony previously heard during the trial. In light of this risk, and rule 3.400, Florida courts have consistently barred transcripts from the jury room.

Here, the trial court considered the jury’s transcript request as just that. Although the Third District in this case held that the trial court did not abuse its discretion in its literal answer to the jury’s transcript request, see also Simmons v. State, 334 So.2d 265, 267 (Fla. 3d DCA 1976) (holding that where the jury did not request to have the testimony read and the reading of the testimony was impractical, the trial court did not abuse its discretion), several cases from other district courts have held that a jury’s request for transcripts of specific witness testimony should be given a broader interpretation. For example, in Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992), a case involving the sexual abuse of a minor, the jury requested to “see” the victim’s cross-examination during deliberations. Id. at 533. The trial court interpreted the request as a literal request for something to see, and noted that there was “nothing to be seen” as there was no transcript produced or available at that time. Id. at 534. Although the defense requested a read-back of the cross-examination, the court informed the parties that a read-back request would be considered only if the jury sent another request to have the testimony read to them. Id. The trial court ultimately told the jury that a transcript had not been produced, and that there was “no way” for the jury to see the cross-examination. Id. Finally, the court instructed the jury to rely on its collective recollections and remembrances, and shortly thereafter, the jury found the defendant guilty on all charges. Id. at 534-35.

On appeal, the State argued that the trial court’s instruction to the jury in the case was not an abuse of discretion as the jury only requested to “see” a transcript and did not specifically request a read-back. Id. at 535. The Fifth District Court of Appeal rejected this argument, reasoning:

We believe the trial judge’s response to the jury’s question may well have led the jury to conclude that their only recourse was to rely upon their “collective recollections and remembrances” as to the cross-examination of the minor. Rather than weighing the pros and cons of having the cross-examination read back to the jury, as did the trial judge in Simmons, the trial judge here narrowly focused upon the word “see” (as distinguished from “hear”) in the jury’s request and deftly side-stepped the problem. As we see it, he employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410. At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them. Then, if the jury requested it, the trial court could have weighed that request in light of any applicable considerations.

Id.

In Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001), the jury sent the trial court a note during deliberations, requesting that it review a timetable presented by the testimonies of five alibi witnesses. Id. at 414. When the court asked for clarification, the jury sent another note stating that it needed a review of the timing of specific events set forth by the testimonies of four named alibi witnesses. Id. It was clear that the jury was seeking a read-back of only a portion of the witnesses’ testimonies concerning the timeline but the trial court believed it was prohibited from providing a partial read-back. Id. The court responded to the jury, in part, “We have no transcripts to submit back to you at this point ... [and] [y]ou should attempt to rely on the collective recollection of the six of you in determining what the various factual questions that you have.” Id. at 415.

In addition to noting that partial read-backs were permitted under certain circumstances, the Fourth District held that the trial court improperly responded to the jury’s request. Id. The district court explained that trial courts may not mislead a jury into believing that a read-back was prohibited. Id. The district court observed that the trial court failed to inform the jury that a method of read-back was available, stated that there were no transcripts, and told the jurors they would have to rely on their collective recollection. Id. at 415-16. In concluding that the trial court’s response may have confused the jury as to whether a read-back was permissible, the Fourth District held that the trial court had abused its discretion. Id. at 416.

The Fourth District also decided Barrow v. State, 27 So.3d 211 (Fla. 4th DCA), review granted, 49 So.3d 747 (Fla.2010), which involved a jury’s request for transcripts of the testimonies of five witnesses only ten minutes into its deliberations. Id. at 215. The trial judge told the attorneys that he would inform the jury that “there are no transcripts.” Id. Although the State suggested that the judge inform the jury they could request a read-back, the judge stated, “No, I don’t do read backs.” Id. The judge then discussed case law concerning a trial court’s broad discretion on a read-back request. Id. at 216. The defense counsel requested that the court inform the jury of the right to ask for a read-back. Id. The court denied the defense counsel’s request and sent the jury a note stating, “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id. The jury found the defendant guilty of first-degree murder. Id.

Relying on Roper and Avila, the Fourth District held that the trial court erred in its response to the jury’s request, and should have told the jury a method of read-back was available, rather than “effectively negating] an option allowed the jury under Rule 3.410.” Id. at 218 (quoting Roper, 608 So.2d at 535). The Fourth District recognized the contrary result reached by the Third District in Hazuri, and certified conflict with that decision. Id. at 218. In addition, the Fourth District noted its agreement with Judge Cope’s dissent in Hazuri. Id. at 218 n. 2.

Subsequent to Barrow, the Fourth District, in dicta, stated that the trial court correctly interpreted the jury’s request to “read [State witness’s] testimony” as a request for a read-back. See Wicklow v. State, 43 So.3d 85, 89 (Fla. 4th DCA 2010). Recently, the Fourth District issued its decision in Francois v. State, 65 So.3d 632 (Fla. 4th DCA 2011), which involved a jury’s request to see transcripts of the testimony of a witness for the State. Id. at 635. The trial court informed the jury that it was unable to grant the jury’s request notwithstanding the State and defense counsel’s agreement that the trial court should “read it back.” Id. at 636-37. The Fourth District, in reliance on Barrow, held that the trial court’s failure to inform the jury that a read-back could be available upon request was error. Id. at 637.

Interestingly, in a decision issued almost eighteen years after the Roper decision, the Fifth District declined to address whether a request for a trial transcript should give rise to the trial court’s obligation to inform the jury of its right to request a read-back. See Frasilus v. State, 46 So.3d 1028, 1030-31 (Fla. 5th DCA 2010), review denied, 69 So.3d 277 (Fla.2011). The district court concluded that the case before it was distinguishable, as the jury had asked for an answer to a specific fact question regarding the date of a photograph of the defendant, rather than a request for a transcript or the examination of testimony. Frasilus, 46 So.3d at 1029-31; compare Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992) (holding that a trial court need not answer questions of fact from a jury), with Kelley v. State, 486 So.2d 578, 583 (Fla.1986) (finding no abuse of discretion where the trial court offered to read back portions of testimony in response to the jury’s factual question).

In sum, the Fourth and Fifth Districts have essentially held that a request for transcripts triggers a trial court’s obligation to inform the jury of the possibility of a read-back. It naturally follows that these district courts also believe that a request for transcripts that would normally implicate the guidelines in rule 3.400 concerning the items permitted in a jury room would also implicate rule 3.410 and its guidelines concerning read-backs. Conversely, the Third District has held that where the jury has requested transcripts of trial testimony, there is no affirmative duty to instruct a jury of its right to request a read-back.

We agree with the reasoning of the Fourth and Fifth Districts in Barrow, Avila, and Roper, and Judge Cope’s dissent in this case. The jury’s general right to ask questions of the trial court was discussed by this Court in Sutton v. State, 51 So.2d 725 (Fla.1951):

In our system of jurisprudence, the jury is of ancient and constitutional sanction .... [I]t performs an extremely important duty and neither its duty nor that performed by the court can be done properly in the absence of mutual aid and assistance. It resolves controversies of fact about which the judge cannot speak or apply the rule of law till the jury announces its judgment. The law applied by the court arises from the factual truth adduced by the jury.... The jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.

Id. at 726. As recognized by the Sutton Court, the role of a jury as a factfinder is of utmost importance. The guilt or innocence of a defendant hinges on the facts of any given case and a courtroom trial can be a long, drawn out, and complex process, fraught with conflicting witnesses and intricate expert testimony. Thus, a jury’s accurate recollection of the testimony is crucial to its verdict. Simply put, a jury cannot properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented in a case. Thus, in order to assist the jury in completing its fact-finding mission, trial courts should apply a liberal construction to a jury’s request for transcripts. In other words, a jury’s request for transcripts of testimony should prompt a judge to inform the jury of the potential availability of a read-back of testimony.

In addition, we refrain from arriving at any legal conclusion that would essentially eviscerate the right of juries to request read-backs recognized in rule 3.410. Whether a jury asks for transcripts of witness testimony or rather uses the term “read-back,” it is clear that the jury is requesting a review of trial testimony. A jury is composed of laypersons often unfamiliar with legal terms of art, and there should be no magic words required for a read-back request, especially when the intent of the jury’s request for transcripts is clear. Failing to require further instruction concerning a read-back after a jury has requested transcripts leaves the jury without the means to refresh its memory of witness testimony — testimony that could be critical to the outcome of the verdict. Where a jury does not precisely request a “read-back,” the read-back portion of rule 3.410 is meaningless without an instruction to the jury that it can request a read-back.

We recognize that there is no requirement in the Rules of Criminal Procedure that a trial judge must advise a jury that it may request a read-back of testimony. However, this absence must be balanced against this Court’s reminder in Sutton that “mutual aid and assistance” is required for the jury to perform its duty properly. 51 So.2d at 726. In cases such as the one presently before this Court, such aid and assistance from the trial court should consist of an instruction from the court that the jury can request a read-back. This in turn helps to ensure that the jury is fulfilling its duty to discern the facts of a given case.

In light of the above discussion concerning the critical nature of the jury’s fact-finding role, and to give effect to rule 3.410, we approve of the reasoning applied by the courts in Barrow, Avila, and Roper, and Judge Cope’s dissent in the instant case. We adopt 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. A trial judge can respond to a request for transcripts in the following manner: “Transcripts are not available, but you can request to have any testimony read back to you, which may or may not be granted at the court’s discretion.” Additionally, when a jury makes a general request for trial transcripts, it is incumbent on the trial judge to instruct the jury to specify the trial testimony sought to be reviewed in the event the jury thereafter requests a read-back. This clarification is necessary so that the trial judge may properly exercise his or her discretion in granting, denying, or deferring any read-back requests.

THIS CASE

In this case, the trial court instructed the jury, in response to the jury’s request for trial transcripts, to rely on its own collective recollection of the evidence, contrary to defense counsel’s suggestion that the trial court should inform the jury of the availability of read-backs. We conclude that the trial court erred in two respects. First, the court erred in failing to inform the jury of its right to request a read-back in response to its request for trial transcripts. Second, because the jury made a general request for transcripts, the court erred in failing to instruct the jury to clarify which portion of the testimony the jury wished to review. Here, the trial court’s actions are subject to the standard pronounced in Johnson v. State, 53 So.3d 1003 (Fla.2010).

In Johnson, the trial court gave the jury a preemptive instruction providing that read-backs of testimony would not be permitted. 53 So.3d at 1005. The Third District Court of Appeal held that the trial court erred, but concluded that the error was harmless. Id. After agreeing that this instruction was erroneous, this Court held:

A [reviewing] court attempting to conduct a harmless error analysis [where the trial court has given an erroneous preemptive instruction] cannot know what testimony a jury would have requested to have read back or even whether a jury would have asked for a read-back at all. Therefore, a reviewing court cannot determine whether a jury was confused or needed clarification about the facts of the case, and it is impossible to discern whether the defendant was prejudiced by the error. An appellate court would be required to engage in pure speculation because if the jury followed the erroneous instruction, the jury would be misled to believe that it was not permitted to request read-backs of testimony. Because a harmless error analysis cannot be conducted when a judge preemptively instructs a jury that it cannot have any testimony read back, we hold that such error is per se reversible error.

Johnson, 53 So.3d at 1009. Similarly, in this case, we cannot ascertain which testimony the jury was interested in reviewing. Unlike Barrow, Avila, Roper, Hendricks, and Francois, where the juries requested the testimony of a specific witness or witnesses, the jury in this case merely asked for trial transcripts. Because the trial judge did not instruct the jury to clarify which portion of the transcript the jury wanted to review, we cannot determine whether the jury was confused regarding specific testimony in the case. Although the record indicates that the jury had difficulty reaching a verdict in this case, it is unclear whether this difficulty was caused by the jury’s confusion as to the facts or testimony in this case. As in Johnson, this Court would have to engage in pure speculation as to the effect of the trial court’s failure to inform the jury of the possibility of a read-back or the trial court’s failure to ask which portion of the testimony it wanted to review. Therefore, the trial court committed reversible error, and accordingly, Hazuri is entitled to a new trial.

CONCLUSION

For the reasons expressed above, we quash the Third District’s decision in Ha-zuri, and approve of the reasoning applied in Barrow, Avila, and Roper, and Judge Cope’s dissent in Hazuri. As the trial court’s response to the jury’s request for trial transcripts constituted reversible error, Hazuri is entitled to a new trial.

It is so ordered.

LEWIS and PERRY, JJ., concur.

CANADY, C.J., concurs in result.

POLSTON, J., dissents with an opinion.

PARIENTE and LABARGA, JJ., recused.

POLSTON, J.,

dissenting.

I respectfully dissent. As reasoned by both the Third and Fifth District Courts of Appeal, I would not require the trial court to advise the jury on read-backs when not requested. See Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009); see also Frasilus v. State, 46 So.3d 1028, 1032 (Fla. 5th DCA 2010) (holding that trial court’s refusal to answer a factual question from the jury and decision not to advise jurors of right to read-back was not fundamental error and reasoning that “[w]e do not think it is either necessary or desirable to impose a requirement on the trial court to inform the jury of its right to request a read-back in response to any question from the jury concerning an issue of fact that may have been the subject of testimony somewhere during the course of trial [and] [b]ecause a trial court is not required to accede to a jury’s request for a read-back of evidence it has already heard, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request a read-back could vitiate the fairness of the entire trial”). Decisions regarding read-back of trial testimony should be left to the discretion of the trial court. See Frasilus, 46 So.3d at 1029 (“Florida Rule of Criminal Procedure 3.410 provides that a trial court may, in its discretion, allow portions of the trial testimony to be read back to the jury upon their request. A trial court’s discretion over whether to allow a read-back of testimony is wide. Kelley v. State, 486 So.2d 578, 583 (Fla.1986).”).

      . The Third District pointed out that the record did not contain the written response sent to the jury. Hazuri, 23 So.3d at 858 n. 1.

      . Standard Instruction 4.4, titled "Read-Back of Testimony,” reads:
      1. Read-Back granted as requested

      Members of the jury, you have asked that the following testimony be read back to you: (describe testimony)
      The court reporter will now read the testimony which you have requested.
      OR
      2. Read-Back Deferred

      Members of the jury, I have discussed with the attorneys your request to have certain testimony read back to you. It will take approximately (amount of time) to have the court reporter prepare and read back the requested testimony.
      I now direct you to return to the jury room and discuss your request further. If you are not able to resolve your question about the requested testimony by relying on your collective memory, then you should write down as specific a description as possible of the part of the witness(es)’ testimony which you want to hear again. Make your request for reading back testimony as specific as possible.
      3. Read-Back Denied

      Members of the jury, you have asked that the following testimony be read back to you: (describe testimony) I am not able to grant your request.
      Fla. Std. Jury Instr. (Crim.) 4.4.

      . As to the trial judge’s statement that he ‘‘[did not] do read backs,” the Fourth District held it was an abuse of discretion for a trial judge to refuse to exercise discretion, i.e., rely on an inflexible rule for a decision that is to be made with discretion. Barrow, 27 So.3d at 218.

      . It is our view that the Fifth District decided this issue in Roper. See Roper, 608 So.2d at 535 ("At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them.”).

      . The First District Court of Appeal decided Hendricks v. State, 34 So.3d 819 (Fla. 1st DCA 2010), review granted, 49 So.3d 746 (Fla. 2010). In that case, the jury requested a transcript as to a portion of the victim’s testimony. Id. at 821. The attorneys did not request that the trial court inform the jury of the possibility of a read-back. Id. The trial court denied the jury’s request for the portion of the transcript and instructed the jury to rely on its recollection. Id. On appeal, the First District observed that it had not yet considered in a written opinion whether a trial court commits error when it denies a jury’s request to view a portion of the trial transcript without informing the jury that a read-back of testimony may be permissible. Id. at 829-30. Although it assumed arguendo that the instruction given was erroneous, the district court in Hendricks left that question for another day. Id. at 830.

      .The Fourth District has also held that it is error for a trial court to give a preemptive instruction to the jury that a read-back would not be permitted. See Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987); Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987). In Hahn and Biscardi, the trial court stated that "there is really no provision” for reinstruction or to have testimony read back. Hahn, 511 So.2d at 591; Biscardi, 511 So.2d at 580. In Hahn, the district court stated, ”[W]e have to assume, as reasonable people, that some, or all, of the jury so understood the trial court’s remarks to mean [a prohibition on a read-back or reinstruction] existed.” 511 So.2d at 591. In Biscardi, the Fourth District stated, ”[T]he judge’s words may reasonably have conveyed to jurors that to ask for clarification of instructions or rereading of testimony would be futile. As a result they may have reacted as they did because they misapprehended the law or had a distorted recollection of some of the testimony.” 511 So.2d at 581. In the instant case, the trial judge did not provide a preemptive instruction to the jury that a read-back of testimony would not be permitted.

      . A request for transcripts of witness testimony should not be confused with a request for an answer to a specific factual question. Pursuant to this Court’s Coleman decision, trial judges are not required to answer factual questions. 610 So.2d at 1286. Moreover, a request to review witness testimony allows the jury to fulfill its own fact-finding role, while asking a question of fact invites the trial judge to fill that role. Notably, the Fifth District in Frasilus stated that in response to a factual question, requiring the trial court to inform the jury of the right to a read-back request is neither necessary nor desirable. 46 So.3d at 1032. However, that specific issue does not need to be decided by this Court in this case.

      . Notably, in Johnson this Court recognized that a harmless error analysis is appropriate where a judge refuses a jury’s request for a specific read-back of testimony. Johnson, 53 So.3d at 1006 n. 4. Again, the jury in this case only made a general request for transcripts.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1884.
    Supreme Court of Florida.
    May 31, 2012.
    Linda McDermott of McClain and McDermott, P.A., Estero, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABÁRGA, and PERRY, JJ., concur.


author: GRIFFIN, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Michelle Ann CHERRY, Respondent.
    No. 5D11-3147.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2011.
    Stephen D. Hurm, General Counsel, and James K. Fisher and Richard M. Coin, Assistant General Counsels, Tallahassee, for Petitioner.
    Neal T. McShane, of Law Offices of Neal T. McShane, P.A., Orlando, for Respondent.
   GRIFFIN, J.

Petitioner, Department of Highway Safety and Motor Vehicles [“the Department”], seeks a writ of certiorari from this Court to quash the opinion of the circuit court, sitting in its appellate capacity. In its opinion, the circuit court held that the Department’s administrative hearing officer departed from the essential requirements of the law in sustaining the driver’s license suspension of Respondent, Michelle Ann Cherry [“Ms. Cherry”], for refusing to submit to a breath alcohol test. We grant the writ and quash the circuit court’s decision.

The charging affidavit prepared by Trooper Peter C. Hooker of the Florida Highway Patrol sets forth the following pertinent facts:

On Thursday, August 26, 2010 at 12:30 AM I was driving southbound on State Road 551 (Goldenrod Road) in the inside through lane. As I was just north of Valencia College Lane I was about to pass the “Betty’s Laughing Horse” bar. At that time, I[sic] white four door Pontiac Grand Am drove quickly out of the parking lot, across all northbound lanes of traffic, the center turn lane and into the path of my marked law enforcement vehicle. I quickly braked to avoid a collision with the white Pontiac Grand Am and watched it travel southbound in the inside through lane of State Road 551. Then the white Pontiac Grand Am turned quickly from the southbound through lane onto Valencia College Lane.
I followed the white Pontiac Grand Am and conducted a traffic stop on Valencia College Lane, just east of State Road 551. As I approached the vehicle on the driver’s side, the single occupant, white female shouted through the driver’s window, “I can’t unroll the window, it’s broken.” I asked her to open the door, which she complied. As the white female opened the driver’s door, she said, “Hi, Officer.” I could smell a strong odor of an alcoholic beverage coming from the inside of the passenger compartment of the vehicle. I asked the female driver if she realized that she almost struck my patrol vehicle. She replied with, “Oh shit, really? I’m so sorry.” As I looked at the white female driver, I could see her eyes were glassy, bloodshot and had a watery appearance to them. Her speech was slurred and very loud as she spoke to me.
I asked the white female driver for her license, registration and insurance. She said, “Yeah, here.” She handed me the documents as I requested. I identified the female driver as Michelle Ann Cherry (FL DL:# [ ]). I then asked her if she had anything to drink tonight. She said, ‘Yeah.” I asked her what she had to drink and she said, “About 5 or 6 draft beers, Sir.” I asked her where she was going and she said, “I’m going home. I only live two blocks from here. Please, I know I shouldn’t be driving. I’m a Class D holding Security Guard and I work at the Orange County Convention Center, this will fuck me so bad.” I asked her why she was driving if she knew she shouldn’t be. She replied with, “I got enough shit going on in my life and I don’t need this shit, please! I’m begging you.”
I looked at her and asked her to please step out of the vehicle. As she grabbed the door handle to open the door, her hand slipped off of the handle twice and she glared at the handle and said, “Damn it!” She finally opened the door using the inside door handle with her left hand. As she exited the vehicle, she grabbed the top of the door frame to steady herself. She exited the vehicle and then placed her left hand on the roof of the ear while keeping her right hand on the top of the door. Both of her knees almost buckled and she caught herself from falling on the ground. I told her that I believed that she was too intoxicated to be driving. She replied with, “Yeah, I know.”
I then asked her if she would participate in field sobriety exercises. She said, “I’d rather you let me park my car on the side of the road and let me go. I’m only two blocks from my house. PLEASE!” I told her that I could not let her do that. I asked her again if she would participate in field sobriety exercise [sic]. She replied with, “Please just let me go. This is going to fuck me, so bad, you have no idea.” I told her that I was not going to let her go and asked her a third time if she would participate in field sobriety exercises. She replied, “I’d rather you just let me go! Come on, man! We’re on the same team! I’m a Class D Security Officer, we gotta work together.” I asked her one last time if she would participate in field sobriety exercises. She replied with, “I want my lawyer! I’m not doing shit, you’re bias and you’re gonna fuck me, so I ain’t doing shit!”
I transported Michelle to the DUI Center. After the observation period, Michelle was escorted into Room 3 where she was given the opportunity to provide the required breath samples. Michelle repeatedly asked for her lawyer and failed to cooperate with providing two breath samples. She failed to follow instructions that were given to her by Officer Armani. She kept biting the mouth piece and would barely blow into the mouth piece. Michelle was advised that because she failed to comply that it was considered a refusal for the test at 01:38. She kept saying that it wasn’t her fault that the machine didn’t work and that the mouth piece became detached from the device.
Michelle was advised that her license was suspended for a period of one year. She was transported to the Orange County Jail’s central booking without further incident.[]

(Emphasis added).

Ms. Cherry invoked her right to a formal administrative hearing. At the hearing, the hearing officer entered the relevant documents into the record and heard the live testimony of Trooper Hooker and Ms. Cherry. Among the documents admitted by the hearing officer was the equipment-generated Breath Alcohol Test Affidavit [“BATA”], which reflected breath alcohol sample readings of .199 and .168, despite her lack of cooperation during the testing. However, the BATA further reflected that both samples suffered from deficient breath volume, and, therefore, were “Not Reliable to Determine Breath Alcohol Level.”

On October 7, 2010, the hearing officer entered “Findings of Fact, Conclusions of Law, and Decision,” affirming the order that suspended Ms. Cherry’s driver’s license. The hearing officer expressly found:

Consequently, [Ms. Cherry] was arrested for DUI and taken to the DUI facility and read the implied consent warnings. [Ms. Cherry] was extremely difficult and failed to follow instruction. Upon many failed attempts, her refusal to provide a chemical test of her breath was label (sic) at 1:38 a.m.

(Emphasis- added). The hearing officer then concluded:

After consideration of the foregoing, I conclude, as a matter of law, that the law enforcement officer had probable cause to believe.that [Ms. Cherry] was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances; [Ms. Cherry] refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer, subsequent to a lawful atrest; and that [Ms. Cherry] was told that if she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
I find that all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence.

(Emphasis added).

Ms. Cherry then sought first-tier certio-rari review in the circuit court for the Ninth Judicial Circuit. See § 322.2615(13), Fla. Stat. (2010). In that petition, Ms. Cherry raised the following arguments:

1) Trooper Hooker never advised Ms. Cherry that her failure to submit to field sobriety tests would be used against her, thereby creating a “safe harbor” situation.
2) Trooper Hooker did not have probable cause to believe that Ms. Cherry was driving or in actual control of a motor vehicle while impaired.
3) When Ms. Cherry requested her attorney and requested a blood test, Trooper Hooker improperly read the “Hoch” form, per State v. Hoch, 500 So.2d 597 (Fla. 3d DCA 1986).
4) When Ms. Cherry requested a blood test, she was not provided with assistance as required ' under section 316.1932(l)(f)3., Florida Statutes.
5) Ms. Cherry did not refuse to take the breath-alcohol test because she provided two breath samples as evidenced by the video tape.
6) Ms. Cherry was denied her right to counsel.

In its opinion entered August 23, 2011, a three-judge panel of the circuit court concluded that Ms. Cherry’s fourth and fifth arguments were meritorious and granted her first-tier certiorari petition. The panel concluded in pertinent part:

Argument IV: [Ms. Cherry] argues that when she requested a blood test she was not provided with assistance as required under section 316.1932(l)(f)3., Florida Statutes. Under this statute, law enforcement officers shall not interfere with a person’s opportunity to obtain an independent blood test and shall provide the person with timely telephone access to secure the test. Further, [Ms. Cherry] cites the case Unruh v. State, 669 So.2d 242 (Fla.1996) where the Florida Supreme Court held that law enforcement officers are required to render reasonable assistance in helping motorists arrested for driving under the influence to obtain an independent blood test upon request. The Department argues that before [Ms. Cherry] had the right to request a voluntary blood test, she was required first to submit to the breath-alcohol test. According to the Department, [Ms. Cherry’s] failure to provide valid samples resulted in a refusal to submit to the breath-alcohol test and thus barred her from obtaining a blood test.
This Court reviewed the video at the DUI testing center where [Ms. Cherry] repeatedly requested a blood test and was not provided with any assistance from Trooper Hooker, the breath technician, or anyone at the DUI testing center such as providing her with telephone access to make arrangements for the test. Further, this Court finds that the Department’s response to this argument is without merit because competent substantial evidence is lacking that [Ms. Cherry] refused to submit to the breath-alcohol test as addressed in argument V of her Petition.
Argument V: [Ms. Cherry] argues that she did not refuse to take the breath-alcohol test because she provided two breath samples as evidenced by the video tape. She produced two samples with results of 0.199 (volume not met) and 0.168 (volume not met) as stated in the Breath Alcohol Test Affidavit. The Department argues that [Ms. Cherry’s] low volume samples were properly construed by law enforcement and the hearing officer as a refusal to comply with breath testing pursuant to Rule 11D-8.002(12), Florida Administrative Code (2010). Rule 11D-8.002(12) states that failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath-alcohol test.
This Court observed on the video that [Ms. Cherry] did agree to take the breath-alcohol test and made several attempts to provide samples by blowing into the Intoxilyzer 8000 machine. Further, the Breath Alcohol Test Affidavit demonstrates that [Ms. Cherry] did provide two breath samples collected within fifteen minutes of each other and consistent with an approved breath-alcohol test as required under Rule 11D-8.002(13) [sic] and regulated by section 316.1932(l)(a)2., Florida Statutes. The breath-alcohol test administered on [Ms. Cherry] was made in substantial conformity with the applicable administrative rules and statutes, Dep’t of Highway Safety & Motor Vehicles v. Russell, 793 So.2d 1073 (Fla. 5th DCA 2001).
Although a majority of the cases cited by [Ms. Cherry] are not controlling in this Circuit, they are persuasive because they are very similar factually to the instant case. See Mulligan v. State, 9 Fla. L. Weekly Supp. 146a (Fla. 7th Cir.2002); Wolok v. DHSMV, 1 Fla. L. Weekly Supp. 204a (Fla. 11th Cir. 1992); and Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (Ga.1970). The Supreme Court of Georgia in Burson held that suspending a person’s driver’s license greatly hinders that person’s use and enjoyment of an item of that person’s personal property and thus, the statute providing the authority for the license suspension should be strictly construed. When statutes do not explain what constitutes a “complete” breath-alcohol test, a showing that a person did not complete the test (within the judgment of the operator) is not evidence of a refusal to submit to a breath-alcohol test within the contemplation of the statute. To consider this information as evidence, would provide the operator with an unfettered right to determine what is and what is not a complete test. Burson, 175 S.E.2d at 662.
In the instant case, the applicable Florida Statutes under chapter 316 and 322 do not explain what constitutes a “complete” breath-alcohol test. The breath technician and Trooper Hooker decided to determine an “implied refusal” after the second breath-alcohol test time frame. The Department’s argument that the samples are invalid solely because [Ms. Cherry] did not perform the test to the breath technician’s satisfaction is not persuasive. To apply the Department’s argument could open the door to a pattern of providing breath technicians and law enforcement officers with unrestrained power when determining what is and what is not a complete test. Therefore, a showing that [Ms. Cherry] did not complete the test (within the judgment of the breath technician) should not be considered as evidence of a refusal to submit to a breath-alcohol test within contemplation of the statutes. Accordingly, the Department failed to meet its burden as to the required element under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that [Ms. Cherry’s] driver’s license was suspended because she refused to submit to the breath-alcohol test after being requested to do so by the law enforcement officer.
Based upon the court record, this Court concurs with [Ms. Cherry’s] arguments IV and V and finds that the hearing officer’s decision to sustain [Ms. Cherry’s] license suspension departed from the essential requirements of the law and was not based on competent substantial evidence. Because [Ms. Cherry’s] arguments IV and V are dis-positive, the Court finds it unnecessary to address her other arguments.

(Emphasis added).

The Department now seeks second-tier review of this decision. Where a license is suspended for refusal to submit to a breath test, the hearing officer’s review at a formal review hearing includes the following:

1.Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or coirectional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

§ 322.2615(7)(b), Fla. Stat. (2010) (emphasis added). “The hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7), Fla. Stat. (2010).

On first-tier certiorari review from the hearing officer’s decision to sustain the suspension, “[t]he circuit court’s standard of review was limited to a determination whether procedural due process was accorded, whether the essential requirements of law had been observed, and whether the administrative order was supported by competent substantial evidence.” See Dep’t of High. Saf. & Motor Veh. v. Marshall, 848 So.2d 482, 485 (Fla. 5th DCA 2003). Thereafter, this Court’s review of a second-tier certiorari petition “is limited to determining whether the circuit court afforded procedural due process and applied the correct law.” Id.; see State, Dep’t of High. Saf. & Motor Veh. v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011).

This Court has granted certiorari relief where a circuit court, sitting in its appellate capacity, improperly reweighs the evi-denee considered by the hearing officer at a license suspension hearing. See Marshall, 848 So.2d at 485-86; see also Dep’t of High. Saf. & Motor Veh. v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).

As an initial matter, we observe that the correctness of the circuit court’s conclusion as to Ms. Cherry’s fourth issue is dependent on the correctness of its conclusion as to Ms. Cherry’s fifth issue. The right to an independent blood test only matures after the DUI arrestee submits to the DUI breath test and desires to obtain an independent test. See Dep’t of High. Saf. & Motor Veh. v. Green, 702 So.2d 584, 586 (Fla. 2d DCA 1997). Thus, in this case, if the hearing officer was correct in her determination that Ms. Cherry’s actions constituted a refusal to submit to a breath test, it then follows that her right to seek an independent blood test did not arise. Id.

In this case, there was competent, substantial evidence in the record from which the hearing officer could conclude that, although Ms. Cherry did not expressly refuse to submit to a breath alcohol test, she did so by purposely avoiding the submission of valid samples. Despite her evasion, the BATA did report two breath alcohol readings; however, the same BATA also registered that these two readings were unreliable for purposes of determining breath alcohol level due to Ms. Cherry’s failure to supply sufficient breath volume during each of her sample submissions.

Florida Administrative Code Rule 11D-8.002(12) defines an “Approved Breath Alcohol Test” as follows:

[A] minimum of two samples of breath collected within 15 minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the results) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.

(Emphasis added). The language of the rule clearly establishes that in order for a breath sample to be a valid breath sample it must be reliable. The BATA generated by the testing device reported that neither of Ms. Cherry’s breath samples met the minimum requirements for volume; therefore, neither was reliable, and neither was valid. Because Rule 11D-8.002(12) clearly provides that a “[r]efusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test,” it follows that there was competent, substantial evidence to support the hearing officer’s determination that Ms. Cherry had refused to submit to a breath test. See § 322.2615(11), Fla. Stat. (2010); Fla. Admin. Code R. 15A-6.013 (5); Dep’t of High. Saf. & Motor Veh. v. Swegheimer, 847 So.2d 545, 546 (Fla. 5th DCA 2008). This competent, substantial evidence of a refusal was buttressed by the breath test video and Trooper Hooker’s charging affidavit.

The circuit court both improperly reweighed the evidence before the hearing officer and applied the wrong law by engaging in its own review of Ms. Cherry’s breath test video and determining that Ms. Cherry had complied with the law simply by “providfing] two breath samples collected within fifteen minutes of each other and consistent with an approved breath-alcohol test as required under Rule 11D-8.002(13)(sic) and regulated by section 316.1932(l)(a)2., Florida Statutes.” The circuit court attempted to substantiate this conclusion by relying upon the BATA, without assigning any significance to the “volume not met” language that was co-located with each breath test result on the BATA form itself. The circuit court’s opinion fails even to mention the express language on the BATA that neither of Ms. Cherry’s breath samples was “Reliable to Determine Breath Alcohol Level.”

The circuit court’s erroneous conclusion appears to have been based upon its incorrect reliance on the circuit court appellate decision in Mulligan v. State, 9 Fla. L. Weekly Supp. 146a (Fla. 7th Cir.Ct.2002). To be sure, the holding in Mulligan involved a factual scenario similar to the facts at issue in this case, but there was one key difference. The petitioner in Mulligan provided his breath test samples on an Intoxilyzer 5000 series, not an Intoxi-lyzer 8000 series; thus, instead of registering a reading of “volume not met,” as occurred in the instant case, the results of Mulligan’s Intoxilyzer simply indicated that “the test had low sample volume— value printed was highest obtained.”

There have been numerous cases where the courts of this State have concluded that the designation “low sample volume— value printed was highest obtained,” was not an impediment to the introduction of the breath sample at trial. See State v. Davis, 3 Fla. L. Weekly. Supp. 522a (Fla. Polk Cty. Ct.1995), aff'd, Davis v. State, 4 Fla. L. Weekly Supp. 501a (Fla. 10th Cir. Ct.1997) (“Current Florida law has found that low sample volume results are not facially invalid, and that they are an accurate reflection of the amount of alcohol in a person’s breath sample.”); see also State v. Conyers, 2 Fla. L. Weekly Supp. 439a (Fla. Dade Cty. Ct.1994); State v. Willis, 1 Fla. L. Weekly Supp. 118a (Fla. Palm Beach Cty. Ct.1992). In cases where the Intoxi-lyzer 8000 registered a reading or readings of “volume not met,” however, it appears that the circuit courts have routinely concluded that such a reading was unreliable and, therefore, not valid. See Kenyon v. Dep’t of High. Saf. & Motor Veh, 16 Fla. L. Weekly Supp. 899a (Fla. 4th Cir.Ct. 2009) (“The machine produced a print-out that read “volume not met” , which means that Petitioner was not providing a sufficient amount of breath in order for the machine to produce a valid test result.”); Underwood v. Dep’t of High. Saf. & Motor Veh., 15 Fla. L. Weekly Supp. 299a (Fla. 4th Cir.Ct.2008) (“The printout from the machine established that both of the samples given by Petitioner were designated as ‘Volume Not Met,’ and the machine indicated that because of this, both samples were not reliable to determine breath alcohol level”); Saladino v. State of Florida, Dep’t of High. Saf. & Motor Veh, 15 Fla. L. Weekly Supp. 222a (Fla. 12th Cir. Ct.2008) (“The Petitioner submitted two breath samples, but the results for both indicated Volume not met,’ meaning the samples were insufficient to determine Petitioner’s breath alcohol level.”). The circuit court’s reliance on Mulligan was misplaced given that each case involved a different version of the Intoxilyzer. Breath volume is a key value for the Intox-ilyzer 8000, but not for the 5000.

Finally, there is the circuit court’s reliance on a 1970 decision of the Georgia Supreme Court in Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (1970). Burson dealt with a Georgia statute that authorized a license suspension for refusal to submit to a chemical test. Notably, unlike the instant case where the test at issue was a breath test utilizing the Intoxilyzer 8000, the test in Burson involved the usage of a balloon and the driver’s attempts to inflate the balloon. The technician declared that the driver in Burson had “refused” to complete the test by failing to sufficiently inflate the balloon. Ultimately, the Supreme Court of Georgia rejected this approach because the relevant statute did not define what constituted a “complete” test and the supreme court did not “think it a salutary practice to let the Intoximeter operator have an unfettered right to determine what is or is not a complete test.” Id., 75 S.E.2d at 662 (emphasis added). The operator’s subjective judgment in the Burson case about whether the test was “complete” bears almost no similarity to the read-out on the Intoxilyzer 8000 equipment that breath volume was not met. Besides, unlike the law in Georgia, Florida law does not concern itself with whether the test was “complete.” Rather, Florida law is concerned with whether Ms. Cherry provided the “required number of valid breath samples.” Fla. Admin. Code R. 11D-8.002(12). Here, without any credible excuse, Ms. Cherry provided no valid breath samples, which “constitute^] a refusal to submit to the breath test.” Id.

The decision of the circuit appellate panel is quashed.

QUASHED.

SAWAYA and PALMER, JJ„ concur.

      . At the administrative hearing that ultimately followed, Trooper Hooker appeared and testified that the statements he made in this affidavit were "true and correct.”

        . There is a legitimate question whether Ms. Cherry actually sought an independent blood test during the proceedings at the breath test center. The video reveals that she repeatedly asked for a blood test, however, it appears that this request was in the context of seeking a blood test in lieu of a breath test, not in addition to a breath test. Ms. Cherry never asked for an "independent” blood test. See Dep’t of High. Saf. & Motor Veh. v. Green, 702 So.2d 584, 586 (Fla. 2d DCA 1997) ("Mr. Green had no right to demand a blood test instead of a breath test.”).

      . It may also be that the Mulligan court was relying on the version of Rule 11D-8.002(16) in effect prior to November 5, 2002. That version of the rule expressly said that two results within the 0.020g taken within fifteen minutes of each other was "acceptable as a valid breath test.” That language was removed from the rule in 2002. Since that time, it appears that a breath sample is not valid unless it satisfies the minimum breath volume requirements of the Intoxilyzer 8000.

      . In 2008, Judge Wayne Miller wrote an excellent and informative order that detailed differences between the Intoxilyzer 5000 and the Intoxilyzer 8000. State v. Harris, 15 Fla. L. Weekly Supp. 486a (Fla. Monroe Cty. Ct.2008). It also addressed the mode of operation of the Intoxilyzer 8000, including reliability of results where adequate volume, constant slope and sufficient time are met. Judge Miller explained,
      In order to be considered a valid breath sample, a minimum of 1.1 liters of air must enter the instrument’s testing chamber for at least one second, and a sufficient slope plateau must be reached. A subject is given three minutes to supply a valid breath sample that meets all the above requirements. A minimum of . 17 liters of breath is needed to trigger the flow meter. A minimum of .15 liters is needed to maintain it. Without either, a valid breath test cannot be completed. When a sufficient amount is emitted into the mouthpiece to trigger the flow meter, a pressure switch introduces the breath sample into the sample chamber. The amount of air emitted in each breath sample must meet a sufficient slope level. In other words, the breath sample is given, the alcohol content is read, and that alcohol content must reach a point where it levels off at substantially the same reading. The alcohol content must reach a relatively level plane before a test can be considered valid.

        Id.

      .In a more recent Georgia appellate opinion, Thomas v. State, 226 Ga.App. 1, 485 S.E.2d 246 (1997), the defendant appealed his conviction for DUI, arguing, inter alia, "that the trial court erred in finding [Defendant] refused to complete the breath test, and that he therefore had a right to a blood test.” Id. at 248. In rejecting this argument, the appellate court said:
      We note, however, that there was conflicting testimony regarding the sincerity of Thomas' efforts to perform the breath test. Finding he intentionally failed to supply a sufficient breath sample was therefore within the purview of the factfinder as judge of the witnesses' credibility.
      Thomas relies upon Burson v. Collier, 226 Ga. 427, 428-429(1)(a), (2), 175 S.E.2d 660 (1970), for the proposition that failure to supply a sufficient breath sample may not be considered a refusal. Burson, however, is distinguishable. In that case, the accused motorist suffered from emphysema, and the trier of fact did not find he had refused to complete the test. Id. Here, however, the evidence would support a finding that Thomas intentionally refused to complete the test designated by the state, and therefore had no right to obtain a test of his own choosing. See Duckett, supra.

        Id. (emphasis added); see Bartnick v. State, 203 Ga.App. 369, 416 S.E.2d 739 (Ga.Ct.App. 1992).


author: SILBERMAN, Chief Judge.

text:
    Jarrod Chancellor DEVOE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1595.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2011.
    Rehearing Denied July 31, 2012.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

We affirm the order revoking Jarrod Chancellor Devoe’s probation and the resulting sentences in three circuit court cases, except that we remand for correction of the amended sentencing documents to delete two possession of cocaine counts.

After multiple violations of probation, Devoe’s probation was revoked in case numbers 04-CF-17906, 05-CF-2716, and 07-CF-4654 in March 2010. After sentencing, the trial court recognized that two possession of cocaine counts had been improperly included because Devoe’s probation for those offenses had been terminated in July 2008. The trial court resen-tenced Devoe with a corrected scoresheet that properly reflected the two possession of cocaine offenses as prior record rather than as additional offenses. However, the amended judgments, the sentences, and the revocation of probation order continue to show the two possession of cocaine counts.

Therefore, we remand for the trial court to correct the amended documents entered on November 3, 2010, and rendered on November 16 and 17, 2010, to delete the offenses of possession of cocaine in count two of case number 04-CF-17906 and count three of case number 05-CF-2716.

Affirmed and remanded for correction of documents.

WALLACE and MORRIS, JJ., Concur.


author: VAN NORTWICK, J. CLARK, J.,

text:
    Cameron A. HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4536.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Rehearing Denied July 18, 2012.
    Terry P. Roberts, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Cameron A. Holmes appeals his conviction for manslaughter and carrying a concealed weapon. He raises six issues, five of which we affirm without discussion. We write to address his contention that the trial court erred in denying his motions in limine and allowing evidence that he was a drug dealer and that police found drugs in his room on the date of his arrest. We hold this evidence of his drug dealing was inextricably intertwined with evidence of the crime and, further, that it was relevant to explain his state of mind when he returned armed to the scene of an earlier altercation with the victim. Accordingly, we affirm.

On May 17, 2006, Ronald Rawlinson, an admitted crack user, met appellant at the end of Sue Lane, where Rawlinson lived, and negotiated the purchase of some cocaine. Rawlinson could not pay the full price for the cocaine, and appellant agreed to take a small sum, accepting Rawlinson’s promise that he would pay the remainder the next day. Appellant gave Rawlinson a piece of paper with the name T.Z. on it and two telephone numbers.

When Rawlinson did not call him the next day, appellant returned to Rawlin-son’s neighborhood. There was evidence that he was looking in the windows of the home belonging to Joe Lloyd, the victim. Lloyd confronted appellant, pushed him, and told him to get out of the neighborhood while picking up appellant’s bicycle and throwing it. Matt Arnold, a neighbor, heard appellant tell Lloyd, “I’ll be back with my boys.” Rawlinson watched the encounter from his window, but did not come out and admit his involvement with appellant. Lloyd called the police. Approximately 15 minutes later, appellant returned on foot. Lloyd, Arnold, and Raw-linson were standing together in Lloyd’s driveway. Arnold testified that appellant asked Lloyd, “Why did you put your hands on me?”

Words were exchanged between Lloyd and appellant, with Lloyd being loud and aggressive. Lloyd told appellant that the police had arrived. When appellant turned his head, Lloyd wrapped his arms around appellant and appellant began to backpedal. They traveled approximately 30 feet. Appellant lost his footing and he and Lloyd fell into the bushes. Arnold turned to Rawlinson to inquire if they should intervene. He did not witness the actual shooting. The accounts of Lloyd, Rawlinson, and appellant differ about what happened next.

Arnold testified that Lloyd did not have any weapons and, when he tackled appellant, Lloyd did not punch him. He described Lloyd’s move toward appellant as a “football tackle.” He heard Rawlinson say that appellant had a gun and he looked at Rawlinson at that point and missed the actual shooting. He saw appellant slide out from under Lloyd, turn around like he was putting something in his back pocket, and run off.

Rawlinson testified that appellant was not underneath Lloyd, but was halfway up and shot Lloyd as he was in the process of standing up. He said appellant “reached around for his back pocket and shot the gun off, just that quick” and then “he trotted off.” Lloyd was shot at pointblank range with the bullet entering near the top of the head and traveling front to back and downward. Both men testified the shooter had short dreadlocks. Both men testified Lloyd had not taken any action that posed a threat of death to appellant.

A neighbor heard the gunshot and saw appellant jogging down the lane. His right hand was behind his back where she could not see it. He got within five feet of her and she got a good look at him. There was no blood on his clothes. She described appellant as “calm.” He got on his bicycle which was concealed under a bush and rode off. The gun was never recovered.

Although not immediately forthcoming, Rawlinson told the police that evening that “the same person that he observed shoot the victim was the same person that he had bought drugs from previously.” Raw-linson placed two controlled calls to appellant. He identified appellant and someone else from a photo spread on May 31, 2006. Several months later, he picked appellant’s picture from a photo spread.

Appellant was interviewed June 1 and, though admitting he had been a drug dealer in the past, repeatedly denied his involvement in this shooting. However, appellant’s cell phone records placed him in the vicinity of the shooting on May 18 and were inconsistent with his explanation of where he was at the time of the shooting.

Appellant was arrested at an apartment approximately one-half mile from Sue Lane. When police arrested appellant, they found a bicycle, packaged substances they believed to be cocaine, bullets, cell phones, and a holster, but no gun. Appellant’s driver’s license which was recovered showed closely cut hair. Appellant was charged with second degree murder and carrying a concealed firearm.

For the next four years, appellant maintained his innocence, claimed an alibi, and wrote several letters to the judge and one to the state attorney, denying his involvement and claiming he did not meet the description of the shooter. He filed a petition in the Florida Supreme Court claiming that police had arrested the wrong person. On the eve of trial, he switched strategies and claimed self defense. He filed two motions in limine seeking to exclude the evidence of the alleged cocaine found in a drawer when he was arrested and evidence that he sold drugs at any point, particularly to state witness Rawlinson, or that he was attempting to collect a drug debt when the shooting occurred.

The trial court agreed with the State’s argument that evidence of the alleged cocaine which was found when appellant was arrested, a few weeks after appellant claimed to have ceased his drug activity in his police interview, would be a factor which the jury could weigh in determining appellant’s credibility. Further, the court ruled the other drug evidence was inextricably intertwined with the evidence of the crime and the credibility of the State’s principal witness Rawlinson.

At the subsequent trial, before the jury heard the police interview of the appellant and before the detective testified about the powdered substance which was found in appellant’s drawer, the jury was instructed that appellant was not on trial for selling drugs and that the evidence of drug dealing should have no place in their deliberations but should “be considered by you for the limited purpose of proving either motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident on the part of the defendant and [you] should consider it only as it relates to those issues.”

Appellant testified in his defense that he went to Sue Lane to obtain the money he was owed. He testified that, though he had a gun in his front pocket, he did not use it in the first encounter because his life was not in danger and he could leave. When he returned the second time to collect his money, Lloyd tackled him into the bushes and he could not breathe or get him off. He said: “I tried to get his arms from around me but he was too strong and I pulled out the gun and shot him.” On cross-examination, he added that Lloyd tried to choke him. He admitted that he had denied any involvement in this shooting to family and friends and law enforcement for over four years. He acknowledged that his defense that he shot in self defense “depends completely on [his] word about ... what’s going through [his] mind.”

This case came down to the credibility of two people: Ronald Rawlinson and appellant. Defense counsel argued that appellant, who was only 17, was faced with an older man who outweighed him by seventy-five pounds, who had been drinking (Lloyd had a blood alcohol level of .11), and who attacked him and tried to choke him. Only then did appellant shoot in self defense. Defense counsel argued that Raw-linson could not be believed because he was a drug user and was not initially forthcoming with the police about his part in this incident.

The State countered that, although appellant may have been young, he was a streetwise drug dealer, who brought a gun to a shoving match because he had been disrespected by Lloyd. The testimony concerning appellant’s actions as a drug dealer, which comprises only a few pages in a nearly 700 page transcript, was elicited to prove that as a drug dealer, appellant would be armed, would expect payment when he fronted drugs, and would not tolerate being disrespected in front of his customers. Defense counsel did not object and did not argue that the relevance of this testimony was outweighed by its prejudicial effect. The State argued that it was only after the considerable damaging evidence was elicited that appellant switched his strategy from arguing innocence to arguing self defense.

“A trial court has wide discretion concerning the admissibility of evidence, and a ruling on admissibility will not be disturbed unless there has been an abuse of discretion.” Irving v. State, 627 So.2d 92, 94 (Fla. 3d DCA 1993). Evidence of other crimes, wrongs or bad acts is admissible if it is relevant and probative of a material issue and not used for the purpose of demonstrating bad character or propensity. Williams v. State, 110 So.2d 654, 662 (Fla.1959).

Typically, there are three reasons for admitting inextricably intertwined collateral crime evidence: (1) it is necessary to establish the entire context out of which the charged crimes arose; (2) it is necessary to provide an intelligent account of the crimes charged; and (3) it is necessary to adequately describe the events leading up to the crimes. State v. Rambaran, 975 So.2d 519, 524 (Fla. 3d DCA 2008). “[T]o prove its case, the State is entitled to present evidence which paints an accurate picture of the events surrounding the crimes charged.” Griffin v. State, 639 So.2d 966, 970 (Fla.1994). As explained more fully in Griffin:

Thus, evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Id. at 968. (Citations omitted). In short, “[inseparable crime evidence is admitted not under 90.404(2)(a) as similar fact evidence but under section 90.402 because it is relevant.” Hunter v. State, 660 So.2d 244, 251 (Fla.1995). However, section 90.408, Florida Statutes (2010) requires exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice....” (Emphasis added).

The evidence which appellant sought to exclude “showed a continuing chain of chronological events,” Foster v. State, 679 So.2d 747, 753 (Fla.1996), without which “an intelligent account of the criminal episode could not have been given,” Austin v. State, 500 So.2d 262, 265 (Fla. 1st DCA 1986), and was necessary for the State to be able to show appellant’s state of mind when he returned a second time to collect his drug debt. Specifically, it was the State’s theory of the case that, after Lloyd disrespected appellant when he came to collect his drug debt, appellant went to his home, got his gun, and returned to the scene to settle his argument with Lloyd. Although this evidence was prejudicial to appellant, “almost all evidence introduced by the State in a criminal prosecution is prejudicial to the defense.” Griffin, 639 So.2d at 970. Appellant’s credibility was at the heart of this case and it would have prevented the State from fairly and adequately making its case against appellant if the drug evidence was excluded. The State did not argue that appellant should be convicted because he was a drug dealer, but rather that his credibility was undermined by his many lies and his version of the shooting should not be believed by the jury.

AFFIRMED.

DAVIS, J., concurs and CLARK, J., dissents with written opinion.

CLARK, J.,

dissenting.

I respectfully dissent. The admission of the irrelevant evidence of Appellant’s involvement with drugs and the State’s emphasis on this evidence at trial denied Appellant a fair trial on the charges. While Appellant was not entitled to a perfect trial, he was entitled to a fair one. See Matthews v. State, 772 So.2d 600 (Fla. 5th DCA 2000).

A defendant is presumed innocent until proven guilty. In contrast to the legal systems of some nations, “[i]n this country, a person ... must be tried for his conduct, not his character — i.e., for ‘what he did, not for who he is.’ United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977).” Jeffrey Cole, “Bad Acts” Evidence in Civil Cases Under Rule JfiMb): It’s Not Just For Prosecutors Anymore, 37 No. 3 Litigation, Spring 2011, at 47, 48. The trial court’s denial of the motions in limine in this ease allowed the State to try Appellant for his character — as a gun-toting, drug-selling, juvenile delinquent evil-doer to whom ordinary rules of reasonableness and self-defense did not apply — rather than for what he did. The State proceeded on a theory that Appellant was not eligible to assert self-defense because he was a drug dealer with no legitimate business in the neighborhood and certainly no legitimate fear of the victim.

The trial court abused its discretion by denying the motions in limine. Dessaure v. State, 891 So.2d 455 (Fla.2004) (standard of review for rulings on motions in limine is abuse of discretion); Leon v. State, 68 So.3d 351 (Fla. 1st DCA 2011). During the trial, it was reversible error to admit the evidence of possible drugs found at Appellant’s residence weeks after the shooting; Appellant’s sales of drugs at any time; and that Appellant was in the neighborhood at the time of the shooting in order to collect a drug debt from State’s witness Rawlinson. This error, combined with the other improper character evidence allowed, amounted to fundamental error by depriving Appellant of a fail' trial.

First, the evidence sought to be excluded was not relevant, and thus not admissible. Appellant was not charged with any drug offense. “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. The evidence of white powder found in a drawer where Appellant resided approximately six weeks after the shooting was in no way connected to the murder or the defense of self-defense. Likewise, the evidence given by State’s witness Rawlinson about his drug transaction with Appellant did not tend to prove or disprove a fact material to any element of murder of Mr. Lloyd or Appellant’s claim of self-defense. Mr. Lloyd was not a drug customer and there was no evidence indicating that drugs were present or a factor during the shooting incident. Because Appellant’s defense at trial was that he shot Lloyd in self-defense, his identity,' motive, opportunity, knowledge, and lack of mistake or accident were effectively admitted, and thus not material facts at issue. The evidence of Appellant’s involvement in drug sales at times other than the day of the shooting, particularly several weeks after the shooting when the drawer was photographed, and evidence of Appellant’s drug-related interaction with persons other than the deceased was offered solely to show Appellant’s bad character and propensity to commit crimes. This evidence was thus not admissible. § 90.404(2)(a), Fla. Stat.; Agatheas v. State, 77 So.3d 1232 (Fla.2011) (revolver found in defendant’s backpack upon his arrest 5 yrs. after the murder not relevant to the crime or as corroboration of witness’ testimony; State cannot rely on law of impeachment to introduce impermissible collateral crimes evidence).

Second, any minimal relevance of the evidence pertaining to Rawlinson’s drug purchase and the general circumstances prior to Appellant’s shooting of Mr. Lloyd was clearly outweighed by the “danger of unfair prejudice, confusion of issues, [or] misleading the jury.” § 90.403, Fla. Stat. Actual confusion of the issues and misleading of the jury were demonstrated in the record of this case by the jury’s mid-deliberation question about the legality of Appellant’s pursuit of payment for a drug sale to the witness — not the victim — at the time of the incident. As noted above, the material facts at issue in the trial were not whether Appellant was a drug dealer or had committed other bad acts at other times with other people, but whether or not Appellant shot Mr. Lloyd in self-defense.

Third, neither the photograph of the drawer containing white powder nor the testimony about Rawlinson’s earlier drug transaction with Appellant, constituted “similar . fact evidence of other crimes, wrongs, or acts,” commonly referred to as “Williams Rule” evidence, admissible under section 90.404(2)(a), Florida Statutes. For evidence of other crimes to be admissible, the evidence must be relevant due to “a close similarity of facts, a unique or ‘fingerprint’ type of information.” State v. Savino, 567 So.2d 892, 894 (Fla.1990). Evidence of Appellant’s drug activity is not similar to the shooting charged here. See McCray v. State, 71 So.3d 848 (Fla.2011) (collateral crime evidence that McCray was a drug dealer arrested at murder site was not similar fact evidence, thus s. 90.404, Fla. Stat. did not apply; only general rule of relevancy applied). Because Appellant was not on trial for any drug offense, the evidence in question was not “Williams rule” evidence and the State’s presentation of this evidence could not be remedied by the “Williams rule” instructions to the jury. Not only was the evidence of Appellant’s drug activities not “similar fact” evidence in relation to the offenses charged, it was “relevant solely to prove bad character or propensity” and was thus inadmissible under section 90.404(2)(a), Florida Statutes.

The evidence pertaining to Appellant’s drug activity generally and with witness Rawlinson in particular did not tend to prove or disprove Appellant’s motive for shooting Mr. Lloyd. This case is not similar to those cases where motive for murder was a material issue and the victim’s participation in the defendant’s drug activities produced the motive. Jackson v. State, 25 So.3d 518 (Fla.2009) (evidence that defendant sold drugs was relevant to support motive; state’s theory was that victim stole defendant’s drugs and money); Jorgenson v. State, 714 So.2d 423 (Fla.1998) (evidence that victim assisted defendant in drug sales, stole from defendant, and threatened to turn defendant in if defendant cut off victim’s drug supply was relevant and admissible to support motive under s. 90.402, Fla. Stat.); see also McCray v. State, 71 So.3d 848 (Fla.2011) (though s. 90.404, Fla. Stat. did not apply, evidence was relevant under s. 90.402 to prove McCray’s motive for charged crimes — revenge for victims’ role in his previous drug arrest).

Even if the evidence challenged here had any probative value to show the general circumstances of Appellant’s presence in the neighborhood or his mental state at the time of the shooting, the evidence of Appellant’s drug-related activities was im-permissibly made a “feature of the trial” by the State. As explained in Peterson v. State, 2 So.3d 146, 155 (Fla.2009), relevant evidence of collateral crimes impermissibly becomes a feature of the trial when the evidence “transcends the bounds of relevancy to the charge being tried” and the prosecution “devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.” The charges in this case were not drug-related offenses. Nonetheless, the State was allowed to introduce Appellant’s statement to police, which, though partially redacted, retained references to Appellant’s past drug activities. The State also introduced extensive testimony of Ronald Rawlinson about his arrangement with Appellant to obtain cocaine and pay Appellant afterwards. Finally, the State introduced the testimony of an investigator who searched Appellant’s residence several weeks after the shooting and photographed a drawer containing a white powder and a gun which was never alleged to be the murder weapon. The investigator did not test the powder, but surmised in his testimony that it was cocaine.

In addition, the prosecutor’s cross-examination of Appellant was dominated by questions regarding his drug business, as illustrated by the following excerpt:

THE STATE: Sir, when you engage in the business of selling drugs, you have to be careful about who’s the police and who’s a customer?
DEFENDANT: Yes, sir.
DEFENSE COUNSEL: Objection, compound question.
THE COURT: I’ll overrule that.
THE STATE: Is that a yes?
DEFENDANT: Yes, sir.
THE STATE: And when you met Mr. Rawlinson, obviously he would have been a potential customer?
DEFENDANT: Yes, sir.
THE STATE: And, of course, in that business you would need to get new customers when you can; right?
DEFENDANT: Yes, sir.
THE STATE: Okay. Because some of the old ones might get clean; right?
DEFENSE COUNSEL: Objection, speculation.
THE COURT: I’ll overrule.
THE STATE: You lose customers because they get off crack, as Mr. Rawlin-son did?
DEFENDANT: I mean, not necessarily-
THE STATE: Okay. Has that ever happened in your experience?
DEFENDANT: Yes, sir.
THE STATE: Okay. Some of them die; right?
DEFENDANT: I would guess so.
THE STATE: Some of them get arrested?
DEFENDANT: Yes, sir.
DEFENSE COUNSEL: Objection, calls for speculation, Judge.
THE COURT: I’ll overrule.
THE STATE: Is that a yes?
DEFENDANT: Yes, sir.
THE STATE: And some of them occasionally might use a competitor of yours, right, they might get their cocaine somewhere else?
DEFENDANT: Yes, sir.
THE STATE: Would it be, then, sir, the good business plan to, as you did, front cocaine to someone like Mr. Rawlinson in the hopes that you could make them into a new customer?
DEFENDANT: Yes, sir.
THE STATE: Okay. Because the profit you might make from future sales might outweigh the risk of fronting him; right?
DEFENDANT: Yes, sir.
THE STATE: And the typical rock that you might sell someone weighs about what, a tenth of a gram?
DEFENDANT: Yes, sir.
THE STATE: Now, when you are in the business of selling drugs, though, you have to keep both the drugs and the money usually on your person or nearby; right?
DEFENDANT: In a sense.
THE STATE: Okay. And you also have to worry about getting robbed or jacked, you know, either by people who want the drugs, people who want the money, or other dealers and stuff like that, right, that’s a concern?
DEFENDANT: Yes, sir.
THE STATE: Okay. So part of the making sure that you can be secure is having weapons and ammunition available or on you; right?
DEFENDANT: In a sense.
THE STATE: Okay. Part of it also is kind of having a reputation that will maybe keep you from getting messed with in the first place; right? People less likely to jack you if they are afraid? Yes? No? You don’t know?
DEFENDANT: I don’t know.
THE STATE: Okay. You would agree with me, though, that it is not sort of a good business model to front a drug user and then let him get away without paying you?
DEFENDANT: That depends on — I don’t know.
THE STATE: Depends on what?
DEFENDANT: It depends on the dealer.
THE STATE: Okay. Would you ever let that happen?
DEFENDANT: I mean, it has, it’s happened.
THE STATE: Okay. And you just let them walk away and didn’t care?
DEFENDANT: I mean, it depends on how much money it is. But what can I do?
THE STATE: Let me ask you, the only reason you went down Sue Lane the next day was in fact to do exactly that, collect the money that you had fronted?
DEFENDANT: Yes, sir.
THE STATE: Okay. And it’s also not good business when you’re in that line of work to let somebody embarrass you, kind of punk you, make you look bad in front of your customers; right?
DEFENDANT: Why would that be? THE STATE: That would be bad for business?
DEFENDANT: I don’t understand why.
THE STATE: You don’t think that would be bad for business?
DEFENDANT: What does somebody punking you have to do with you—
THE STATE: Do you think that makes it more or less likely that you would have a reputation?
DEFENDANT: A reputation of — ?
THE STATE: We talked about earlier, you don’t think when something happens in front of your customers — never mind. You know what, we’ll just go on.
THE STATE: You would agree with me that when you’re dealing drugs it kind of makes sense to take some precautions in case you run into the police?
DEFENDANT: Yes, sir.
THE STATE: What sorts of precautions would be necessary?

While discounted by the majority as “only a few pages in a nearly 700 page transcript,” the State was allowed to continue this line of questioning for several more pages as transcribed, without any reference to Appellant’s interaction with the victim during the shooting incident. Finally, during closing argument, the State referenced Appellant’s status and expertise as a drug dealer no less than fourteen times, arguing to the jury that self-defense was not available to law breakers and that the reasonable person standard did not equate to what was reasonable for a drug dealer. Defense counsel’s objections to the argument were overruled.

I disagree with the majority’s conclusion that the State’s evidence of Cameron Holmes’ drug activities was admissible as “inextricably intertwined” collateral crime evidence. The evidence sought to be excluded in the second motion in limine— that the defendant sold drugs at any point and that defendant was attempting to collect a drug debt from Mr. Rawlinson at the time he shot Mr. Lloyd — was not evidence of an inseparable crime “inextricably intertwined” with the charged crime. See Canion v. State, 793 So.2d 80, 81 (Fla. 4th DCA 2001). This is not a case where the evidence of uncharged crimes is admissible because “it is a relevant and inseparable part of the act which is in issue” and “it is necessary to admit the evidence to adequately describe the deed.” Griffin v. State, 639 So.2d 966, 968 (Fla.1994); see also, Thomas v. State, 959 So.2d 427 (Fla. 2d DCA 2007); Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006). Here, the evidence of Appellant’s involvement with drugs and his previous contact with witness Rawlinson was separate from and extraneous to the altercation with Mr. Lloyd and the crimes with which Appellant was charged. See Parker v. State, 20 So.3d 966 (Fla. 3d DCA 2009) (reversing convictions for possession of drugs; evidence of prior drug transactions was not relevant to or inextricably intertwined with charged drug crimes). The evidence was not necessary to adequately describe the shooting or the moments immediately preceding it, when self-defense might have come into play. Mr. Rawlinson could easily have told his story without saying why he owed Appellant money, and Appellant’s redacted statement to the police could easily have been further redacted to omit references to past bad acts not charged in this case. Appellant’s credibility could easily have been challenged without reference to any drug activity and the State presented no link at all between the charge of murder of the victim and the powder found in a drawer at Appellant’s residence several weeks after the shooting. The exclusion of the evidence at issue would not have “unreasonably hampered” the State in explaining how the charged crime took place. See McCall v. State, 941 So.2d 1280 (Fla. 4th DCA 2006).

For all the foregoing reasons, Appellant is entitled to a new trial. I would reverse.

      . Appellant admitted at trial that he threw the gun, a 357 magnum, into the dumpster at his apartment.

      . This charge was given again before the jury retired to deliberate. The trial court recognized that the drug evidence was not so-called Williams rule evidence, Williams v. State, 110 So.2d 654 (FIa.1959), which is limited to "similar fact evidence" under section 90.404(2)(a), but was instead relevant evidence admissible under section 90.402, as explained infra at pages 8-9. The court stated that it gave the Williams rule instruction, however, to caution the jury that evidence of appellant's drug dealing should not be used for an impermissible purpose.

      . Williams v. State, 110 So.2d 654 (Fla.1959).