source: Caselaw Access Project

author: PER CURIAM.

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text:
    Anthony SPANN, Appellant, v. STATE of Florida, Appellee.
    No. SC09-2330.
    Supreme Court of Florida.
    May 24, 2012.

      Baya Harrison, Monticello, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Anthony Spann appeals the denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. In his motion, Spann challenged his convictions and sentences, including a judgment of conviction of first-degree murder and a sentence of death, based on the recantation testimony of accomplice Lenard Philmore, which Spann submitted to the trial court as newly discovered evidence. Because this case concerns postconviction relief from a capital conviction for which a sentence of death was imposed, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the denial of postconviction relief.

I. STATEMENT OF THE CASE

Spann’s convictions and sentences stem from his participation in a November 1997 crime spree that included a pawn shop robbery, bank robbery, carjacking, and murder. Following a jury trial in November 2000, Spann was convicted of conspiracy to commit robbery with a deadly weapon, for which he received a sentence of fifteen years in prison; carjacking with a deadly weapon, for which he received life imprisonment; kidnapping, for which he received life imprisonment; robbery with a deadly weapon, for which he received life imprisonment; and grand theft, for which he received five years. For the death of the murder victim, Kazue Perron, Spann was convicted of first-degree murder and sentenced to death. This Court affirmed Spann’s convictions and sentences on direct appeal. See Spann v. State, 857 So.2d 845 (Fla.2003).

At trial, the State’s primary witness against Spann was his accomplice, Lenard Philmore. On or about September 1, 2008, Spann received an affidavit from Philmore which stated in part, “Anthony Spann didn’t have anything to do with the crime for which we are on death row for.” Spann subsequently filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Spann raised, several claims in his petition, including an “actual innocence” claim based on Philmore’s recantation. See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In response to the State’s argument that the claim was unexhausted, Spann requested that his federal petition be held in abeyance. The federal district court denied the request, explaining that “[u]pon the filing of a successive motion for post-conviction relief in state court, [Spann] may refile his request to stay the instant Petition.”

On May 4, 2009, Spann filed the instant successive rule 3.851 motion in which he argued, as his sole claim, that he is entitled to a new trial based on Philmore’s recantation. On September 1, 2009, the trial court held an evidentiary hearing on Spann’s successive motion. Spann’s sole witness at the hearing was Lenard Phil-more. In his postconviction testimony, Philmore denied that Spann had any involvement in the pawn shop robbery, the bank robbery, or the carjacking and murder of Kazue Perron. Philmore explained that he had “changed [his] life” and that he had “decided it was time to tell the truth.” Following the evidentiary hearing, the trial court issued an order denying Spann’s motion, finding Philmore’s recantation “not credible, untruthful, and exceedingly unreliable.” Spann now appeals the trial court’s denial of relief.

II. STANDARD OF REVIEW

This Court has previously held that for a conviction to be set aside based on a claim of newly discovered evidence, the defendant must meet two requirements. ■ First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (“Jones II”). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). In determining whether the newly discovered evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So.2d 911, 916 (Fla.1991) {“Jones I”).

While this Court has recognized that the recantation of a witness may under some circumstances qualify as newly discovered evidence, see Wyatt v. State, 71 So.3d 86, 100 (Fla.2011), we have also observed that recantations are, as a general matter, “exceedingly unreliable.” Bell v. State, 90 So.2d 704, 705 (Fla.1956). Our decision in Armstrong v. State, 642 So.2d 730 (Fla.1994), sets forth the principles to be followed when the testimony of a recanting witness is submitted as newly discovered evidence:

Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. In determining whether a new trial is warranted due to recantation of a witness’s testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. “Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” Only when it appears that, on a new trial, the witness’s testimony will change to such an extent as to render probable a different verdict will a new trial be granted.

Id. at 735 (citations omitted) (quoting Bell, 90 So.2d at 705); see also Lambrix v. State, 39 So.3d 260, 272 (Fla.2010); Archer v. State, 934 So.2d 1187, 1196 (Fla.2006). In accordance with Armstrong, “recanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true, and (2) the recanted testimony would probably render a different outcome in the proceeding.” Davis v. State, 26 So.3d 519, 526 (Fla.2009).

Moreover, this Court has explained that when, as in this case, “a newly discovered evidence claim relies on an admission of perjury, the critical issue of credibility necessarily arises.” Archer, 934 So.2d at 1196. Unlike this Court, “the trial judge is there and has a superior vantage point to see and hear the witnesses presenting the conflicting testimony. The cold record on appeal does not give appellate judges that type of perspective.” State v. Spaziano, 692 So.2d 174, 178 (Fla.1997); see also Nixon v. State, 2 So.3d 137, 141 (Fla.2009) (noting that appellate courts do not “reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses” (quoting Brown v. State, 959 So.2d 146, 149 (Fla. 2007))). For that reason, “[t]his Court will not substitute its judgment for that of the trial court on issues of credibility.” Johnson v. State, 769 So.2d 990, 1000 (Fla. 2000). “When reviewing a trial court’s determination relating to the credibility of a recantation, this Court is ‘highly deferential’ to the trial court and will affirm the lower court’s determination so long as it is supported by competent, substantial evidence.” Lambrix, 39 So.3d at 272 (quoting Heath v. State, 3 So.3d 1017, 1024 (Fla.2009)).

III. FACTS

At trial, Philmore described the circumstances surrounding the pawnshop robbery, the carjacking and murder of Per-ron, and the bank robbery. While the State presented numerous witnesses in support of Philmore’s account, only Phil-more conclusively identified Spann as his coperpetrator in the offenses. In his testimony at the postconviction evidentiary hearing, however, Philmore recanted those portions of his trial testimony that included Spann as his coperpetrator. Instead, Philmore now maintains that he was aided in the crime spree by an individual whom he identified as Daryl Brooks. As discussed above, the trial court rejected Phil-more’s recantation as untruthful. In order to determine whether the trial court’s finding is supported by competent and substantial evidence, it is first necessary to review the account of the crime spree that was provided by Philmore at trial, the additional evidence at trial that supported Philmore’s account, and Philmore’s revised account as well as other testimony submitted at the evidentiary hearing on Spann’s successive postconviction motion.

1. Philmore’s Trial Testimony

Philmore testified at trial that on the morning of November 13, 1997, he was sleeping at the home of Spann’s cousin Sophia Hutchins in Riviera Beach when he was awakened by Spann. Philmore explained that at that time, he and Spann were both in need of money so they could leave Florida. Spann told Philmore that he had located a pawn shop they could rob. Spann’s plan was to use his own car, a blue Subaru, as a getaway vehicle. Philmore testified that the Subaru was a stick-shift, which he did not know how to drive, so it was agreed that he and Hutchins would rob the pawn shop while Spann would act as the getaway driver.

The robbery of the pawn shop was carried out as planned. Philmore testified that immediately after the robbery, he exited the pawn shop and returned to Spann’s Subaru while Hutchins ran in another direction. Spann and Philmore then drove back to Hutchins’ house. Spann later picked up Hutchins at another location and brought her back to the house, where they reviewed the items taken in the robbery. While Philmore and Hutch-ins succeeded in taking some jewelry and four guns from the pawn shop, they obtained little cash. Philmore testified that Spann was upset because the proceeds of the robbery were not sufficient. Later that day, Philmore sold the jewelry and one of the guns. As for the remaining guns, Philmore, Spann, and Hutchins each kept one.

That evening, Spann and Philmore picked up their girlfriends, Keyontra “Kiki” Cooper and Latoya Stevenson, and drove to a motel, where they spent the night. At one point the women left the room, leaving Spann and Philmore alone. According to Philmore, Spann then raised the idea of robbing a bank. Philmore agreed and the two decided that they would again use the Subaru as a getaway vehicle. Since Spann and Philmore assumed the police would be looking for the Subaru, they decided that they would have to steal another car which they would use to leave the state. Philmore testified that they intended to drive to New York after the robbery.

The next morning, the group left the motel. Spann and Philmore dropped Cooper and Stevenson off at their respective homes at approximately noon. It was agreed that Spann and Philmore would pick up the women later that day to drive to New York. When they were alone, Spann and Philmore again discussed their plans concerning the robbery. According to Philmore, Spann said they should find a person getting out of a vehicle and take the car at gunpoint. Spann told Philmore that they would have to kill the driver of the vehicle so they could not be identified. Spann and Philmore first went to a shopping mall to search for a victim. They followed one potential victim to another mall, but concluded the person was not a suitable target. Spann then suggested that they go to a neighborhood in West Palm Beach where he believed they could find nice cars. Once there, they spotted a gold Lexus and followed it into a driveway. Spann and Philmore got out of the Subaru and asked the driver, Kazue Perron, if they could use her phone. Perron replied that she did not have a phone and started to leave. Philmore drew his gun and directed her to get back in the car. Phil-more sat in the driver’s seat of Perron’s Lexus, while Perron sat in the front passenger’s seat. Philmore then drove the Lexus away from West Palm Beach while Spann followed in the Subaru.

After passing through Indiantown, Phil-more pulled over to the side of the road. Spann pulled up behind Philmore, got out of his car, and came over to the Lexus. Philmore testified that Spann directed him to take the Lexus down a road they had recently passed. Philmore did so and Spann again followed in the Subaru. When they reached the end of the road, both men got out of their cars. Spann nodded his head toward Philmore, which Philmore understood to mean that he should kill Perron. Philmore told Perron to go to the side of a canal that was next to the road. Philmore testified that Perron instead began to move toward him, at which time he shot her in the forehead. Philmore picked up Perron’s body and threw it into the canal. In the process, Philmore got blood on his shirt.

Philmore and Spann drove the cars to a location near the bank they planned to rob, where they hid the Lexus. Before the robbery, Philmore threw away his bloody shirt and put on Spann’s shirt. Spann then drove Philmore to the bank in the Subaru. Philmore testified that he walked into the bank, saw a woman behind the counter holding some money, grabbed the cash, and ran back to the Subaru. Phil-more gave $500, approximately half the loot, to Spann. The two then drove back to the Lexus and hid the Subaru. Spann took the wheel of the Lexus and drove back to West Palm Beach, where they picked up Stevenson and Cooper at their homes. After stopping at a Burger King restaurant to pick up Cooper’s paycheck, the group drove back toward Sophia Hutchins’ house. As they were approaching the house, Spann and Philmore observed police officers waiting for them. Spann turned the Lexus around and the police followed. Spann subsequently led the police in a high-speed chase, first through a residential area and then onto Interstate 95, until he was forced to stop the car because of a blown tire. Spann and Philmore, each armed with a gun, fled the vehicle and went into a nearby orange grove, where they were caught five to six hours later.

In the course of his testimony, Philmore was questioned concerning his reasons for testifying against Spann. He said that he was aware the prosecution had not offered him any leniency in his own case and would be seeking the death penalty. He asserted that his decision to testify was not the result of any advice from his attorneys. Rather, Philmore explained that he felt bad about what had happened, that he was sorry, and that he wanted people to know he did not commit the crimes alone. He stated, “[Spann] formulated the plans and we both carried them out, and I feel as though the death of Ms. Kazue Perron deserves justice.” Philmore admitted that he initially lied to police about his and Spann’s involvement in the crimes and that at first he did not intend to testify against Spann. He said that he and Spann exchanged letters while incarcerated and that in one of those letters, which was admitted into evidence, Spann instructed Philmore to testify that Spann did not have anything to do with the crimes. Spann wrote that Philmore should say that he picked up Spann at the home of Spann’s aunt after the robbery, and that Philmore should “make up a name” as to who his accomplice was. Philmore said he later heard that Spann was calling him a “big dummy” in jail and had told other inmates that Philmore would do whatever Spann told him to do. Philmore’s resentment against Spann contributed to his decision to testify.

2. Additional Witnesses at Trial

Philmore’s account was supported by numerous additional witnesses at trial. Michael Buss, owner of the pawn shop, testified that he was robbed at gunpoint by Philmore and Hutchins. He observed the robbers exit the store and run toward a dark blue compact car. The car’s tinted windows were up, however, so Buss could not see the driver. Keyontra Cooper and Latoya Stevenson also testified as witnesses for the State. According to Cooper, she and Stevenson were at Hutchins’ apartment with Spann and Philmore on the evening of November 13. She saw Spann, Philmore and Hutchins with several guns, which she identified at trial. During his own testimony, Buss identified the guns as the ones stolen from the pawn shop. Cooper and Stevenson testified that they went to a motel with Spann and Phil-more later that evening. Stevenson stated that at one point she and Cooper went to a convenience store, leaving Spann and Phil-more alone in the room. The next morning, Cooper was paged by a friend, who told her that the police were looking for Philmore. On hearing this, Philmore told Spann that he was broke and that he needed money to get out of town. Spann responded, “You know what we have to do.”

Cooper and Stevenson testified that they were dropped off at their homes between noon and 12:30 p.m. Kazue Perron’s husband, Jean Claude Perron, testified that he last saw his wife at 12:40 or 12:45 p.m., when she left for a 1:00 p.m. appointment at a residence on Elizabeth Avenue in Lake Park. Martha Solis, a housekeeper at another residence in Lake Park, testified that she was driving down Elizabeth Avenue on her way back from lunch when she observed a blue car parked in a nearby driveway. At trial, she identified the car as Spann’s Subaru. One black male who matched Philmore’s description was walking over a lawn toward the Subaru, while another black male sat in the driver’s seat. As she drove away, Solis observed a gold Lexus driving some distance behind her.

The robbery of the First Bank of Indi-antown was reported in a call to 911 at 1:58 p.m. Sandra Maguire, a bank teller, testified that a man she later identified as Philmore ran into the bank and grabbed approximately $1,000 in cash that was being deposited at her window. Catherine Donnelly, who was making the deposit, saw Philmore run out of the bank and get into the passenger side of a blue car. The windows of the car were down, and Don-nelly could see another black male in the driver’s seat. Leo Gomez was driving toward the First Bank at approximately 2:00 p.m. when a car occupied by two black males, traveling in the opposite direction, nearly hit his car head-on. Several police officers testified concerning the discovery of the Subaru shortly afterward at a nearby pump station. The vehicle was registered in the name of Folia Spann, the wife of defendant Anthony Spann. Inside, police found a deposit ticket from the First Bank for $1,100.

Cooper testified that she was paged by Philmore at 2:28 p.m. She called Philmore, who told her that he and Spann were at Stevenson’s house and would pick her up in a few minutes. Stevenson testified that when Spann and Philmore picked her up in the Lexus, she asked where the car came from. Spann told her not to worry about it. Stevenson sat in the front passenger’s seat, while Spann drove and Philmore sat in the back seat. When Cooper was picked up several minutes later, she also asked about the car. Spann replied, “Just don’t worry about it, we got it.” Cooper also observed several magazines on the floor of the car with the name Kazue Per-ron on the mailing labels. Cooper asked about the magazines and, again, was told not to worry.

Cooper and Stevenson both testified that after Spann and Philmore picked them up, the group went to Burger King to eat and to pick up Cooper’s paycheck. Spann then drove the car toward Sophia Hutchins’ house. Stevenson said that on seeing the police cars in front of Hutchins’ house, Spann immediately turned the car around. When Spann saw that the police cars were following him, he began to speed. Jeffrey Nathanson of the West Palm Beach Police Department testified that the chase began at approximately 8:15 p.m. Nathanson said that the Lexus first sped through densely populated residential portions of West Palm Beach before turning onto Interstate 95, where the Lexus drove at speeds of 100 to 130 miles per hour. Stevenson testified that during the chase she opened the center console between the front seats and observed two guns. According to Cooper, Spann admitted during the chase that the Lexus was stolen.

Cooper and Stevenson each testified one of the car’s tires eventually blew out on the interstate and Spann was forced to pull the car over. Spann and Philmore jumped out of the car; Stevenson testified that each was carrying a gun as they fled. According to Cooper, Spann turned around and told the girls, ‘You better run.” The party fled into a nearby orange grove, where they encountered John Scarborough, the grove’s owner. Spann and Phil-more told Scarborough that they were running from the police because of a speeding incident, and Scarborough directed them toward a place in the grove where they could hide. When the police arrived shortly thereafter, Scarborough assisted them in the search. John Cummings of the Martin County Sherriffs Office testified concerning Spann and Philmore’s arrest several hours later. Cummings said that when they were finally discovered and arrested, Philmore was carrying $464.12 and Spann was carrying $545. Scarborough testified that he located two guns and a pager in the grove several days later near the area where Spann and Philmore were discovered. At trial, a firearm examiner identified one of the guns, a .380 caliber Tarus pistol, as the weapon used in the murder of Kazue Perron.

In a statement to law enforcement, which was played to the jury, Spann denied any involvement in the robberies and murder. He maintained that after leaving the motel on the morning of November 14, he went to the home of his aunt, Willie Brown; where he remained until Philmore picked him up that afternoon driving the Lexus. He said he did not ask Philmore where the Lexus came from; he thought that Philmore might have traded some drugs for the car. Spann said that he drove himself to his aunt’s home in his Subaru. When asked how the Subaru ended up in Indiantown, Spann responded that Sophia Hutchins had previously asked to borrow the car and that he assumed she took it. He told police that the Subaru was not his, but rather that it was a “trash car” that anyone could use. In response, the State presented testimony by Spann’s aunt, who denied he was at her home that day. Spann’s wife, Folia Spann, testified that she purchased the car, that it was registered in her name, and that to her knowledge there was only one set of keys. She said that her husband never allowed anyone else to drive the car.

3. Postconviction Evidentiary Hearing

Philmore’s testimony at the postconviction evidentiary hearing largely followed the events recounted in his trial testimony, but removed Spann from any involvement in the crimes. Philmore claimed that he fabricated the story of Spann’s involvement based on advice from counsel. He stated, “[M]y attorney had told me at the time that it would be more believable that Spann had something to do with the crime and that it would kind of take the eyes off of me some and put them on him.” Phil-more also said he was telling the truth when he testified that he was resentful against Spann for calling him a “big dummy.”

Philmore testified at the evidentiary hearing that he began the day of November 13 at the home of Sophia Hutchins. However, Philmore said he did not remember whether Spann was there when he awoke and denied that Spann came up with the plan for the pawn shop robbery. Instead, he claimed that the plan was formulated by himself and Hutchins. Phil-more also denied having any knowledge as to whether Spann needed money to leave town. Philmore agreed that Spann’s Subaru was used in the robbery and said he lied at trial when he said he could not drive a stick-shift. Philmore admitted that he stole jewelry and four guns in the pawn shop robbery with Hutchins, but disputed that Spann was the getaway driver. On cross-examination, Philmore was pressed to identify the getaway driver if it was not Spann. Philmore refused at first to do so, stating that he would not incriminate someone who had not been charged with a crime. He eventually identified the driver as “Daryl Brooks.” According to Phil-more, he, Hutchins, and Brooks drove back to Hutchins’ house in the Subaru after the robbery. Philmore and Hutchins then went to a pawn shop to sell the stolen jewelry, while Brooks stayed behind. Philmore later sold one of the guns to another person. Philmore testified that he, Hutchins, and Brooks each kept one of the three remaining guns.

That evening, Spann and Philmore picked up Latoya Stevenson and Klki Cooper in Spann’s Subaru and brought them to a hotel. When asked where Brooks was at this point, Philmore responded, “At home, I guess.” Philmore denied discussing the next day’s bank robbery with Spann at the hotel. Philmore said he did not discuss the bank robbery with anyone until the next morning, when he and Spann dropped Stevenson and Cooper off at their homes, and Philmore dropped Spann off at his aunt’s house. Philmore then took Spann’s Subaru to pick up Brooks at Brooks’ home in Riviera Beach. Philmore said it was then that he had the idea to rob the bank. He told Brooks that he needed a vehicle to leave town because the police were looking for him. Philmore then recounted the events surrounding the carjacking and murder of Perron, replacing Spann with Brooks.

Concerning the bank robbery itself, Philmore testified that he robbed the bank while Brooks waited in the Subaru. After committing the robbery, Philmore said he returned to the Subaru and gave half the money to Brooks. Brooks then drove them back to the Lexus. They hid the Subaru and fled in the Lexus, with Phil-more driving. Philmore said that he first took Brooks to a friend’s house in Riviera Beach. Philmore next picked up Spann from his aunt’s house in West Palm Beach. With Spann driving, Philmore and Spann then returned to Riviera Beach to pick up Stevenson and Cooper. The group went to pick up Cooper’s paycheck and began to drive back to Hutchins’ apartment. As Philmore recounted at Spann’s trial, the police saw the Lexus and a police chase ensued, resulting in the group’s eventual apprehension.

As its sole postconviction witness, the State presented testimony by Thomas Bakkedahl, who served as a prosecutor against both Philmore and Spann. Bakke-dahl stated that Philmore’s trial was held before Spann’s trial and that the jury recommended death by a vote of twelve to zero. Bakkedahl testified that although Philmore at first denied involvement, Phil-more admitted during a polygraph examination on November 23, 1997, that he and Spann murdered Perron. Philmore subsequently provided a full confession on November 26, which Bakkedahl testified was consistent with Philmore’s testimony at Spann’s trial. Bakkedahl stated that Phil-more initially refused to testify against Spann. After Philmore was tried and convicted but before he was sentenced, Phil-more changed his mind and agreed to testify at Spann’s trial. Bakkedahl said that he believed Philmore changed his mind because he was offended by comments that Spann had been making about him to other inmates. Bakkedahl also believed that Philmore was genuinely remorseful concerning his role in the death of Kazue Perron. When asked why Philmore would now recant his testimony, Bakkedahl expressed the opinion that Philmore was playing games with the court.

IV. ANALYSIS

To succeed in his motion for a new trial based on newly discovered evidence, Spann must satisfy both prongs of the test set forth in Jones II. “First, in order to be considered newly discovered evidence, the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that [the] defendant or his counsel could not have known [of it] by the use of diligence.’ ” Jones II, 709 So.2d at 521 (quoting Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994)). Here, Philmore’s recantation did not become known to Spann until after Spann’s initial postconviction proceedings were completed. As the trial court stated, “It is uncontested that Philmore’s recantation is newly discovered evidence.”

Under the second prong of Jones II, Spann must establish that “the newly discovered evidence [is] of such nature that it would probably produce an acquittal on retrial.” 709 So.2d at 521. When a claim of newly discovered evidence is based upon the recantation of testimony by a witness for the prosecution, the second prong of Jones II is met only where the defendant first establishes that the recanted testimony is truthful. See Davis, 26 So.3d at 526. In this case, on reviewing the evidence presented both at trial and in postconviction, the trial court determined that Philmore’s recantation was “not credible, untruthful, and exceedingly unreliable.” On review, we find ample evidence in the record to support the trial court’s finding.

In rejecting Philmore’s recanted testimony, the trial court first observed that Philmore’s recantation conflicted with the timeline of events and additional corroborating evidence established by other witnesses at trial. With regard to the time-line of events, a 911 call placed the time of the bank robbery at 1:58 p.m. Thirty minutes later, at 2:28 p.m., Cooper received a page from Philmore, who told her that he and Spann had arrived at Stevenson’s residence in Riviera Beach. This evidence was generally consistent with the testimony of Rebecca Bagley, a crime scene investigator. At trial, Bagley testified that the distance between the hiding place of the vehicles near Indiantown and Stevenson’s residence was 80.6 miles and took approximately 31 minutes to drive. Thus, Phil-more’s original testimony that he and Spann drove directly from Indiantown to Stevenson’s residence was consistent with the timeline established by other evidence at trial.

In his recanting testimony, Philmore claimed that he drove from Indiantown to Riviera Beach, dropped off Brooks at a friend’s house, drove to the home of Willie Brown in West Palm Beach to pick up Spann, then returned with Spann to Riviera Beach to pick up Stevenson and Cooper. The trial court concluded that “this could not have been accomplished in the 30-minute period [between the bank robbery and Spann and Philmore’s arrival at Stevenson’s house] where the distance from Indiantown to Stevenson’s house alone was clocked at 30.6 miles taking 31 minutes to drive.” The trial court’s finding is supported by the trial testimony of Thomas Ranew, an investigator for the State. Ranew testified that he was asked to measure distances and travel times from the pump station where the Subaru was found, to the homes of Sophia Hutch-ins and Willie Brown in West Palm Beach, and then to Stevenson’s home in Riviera Beach. Ranew stated that the total distance was 39.9 miles and took fifty-four minutes to drive. While the route given in Philmore’s recantation was somewhat different from the route Ranew traveled, we note that Ranew also testified he did not believe it was possible to drive from Indi-antown to West Palm Beach to Riviera Beach in only thirty minutes.

Philmore’s recantation conflicts with other evidence presented at trial. First, despite Philmore’s current claim that he drove Spann’s Subaru on several occasions, Philmore himself, as well as several additional witnesses, testified at trial that he could not drive a stick-shift vehicle. Second, Philmore now claims that he gave half the proceeds of the bank robbery, approximately $500, to Brooks rather than to Spann. Yet when Philmore and Spann were arrested, $545 was recovered from Spann. At the evidentiary hearing, Phil-more could not explain why Spann was in possession of nearly the exact amount he claimed to have given to Brooks. Additionally, although Philmore now claims to be telling the truth, it is notable that his recantation is also inconsistent with the alibi Spann gave to law enforcement after his arrest. Spann claimed that he drove himself to his aunt’s house in his Subaru and that Sophia Hutchins came by shortly thereafter and took the car. In Philmore’s recantation, however, he claimed that he dropped Spann off in the Subaru and then drove to Brooks’ house.

Furthermore, the trial court found that Philmore’s recantation was not supported by independent evidence. Although Phil-more was the only witness to directly identify Spann as his coperpetrator in the offenses, significant circumstantial evidence pointed to Spann’s involvement. Philmore now claims that his accomplice was an individual named Daryl Brooks. However, the record contains no evidence to support Brooks’ involvement in the crimes, or even his existence. No witnesses at trial ever connected Brooks with the pawn shop robbery, the murder of Perron, or the bank robbery. At the postconviction evidentia-ry hearing, Philmore was evasive when asked to identify his accomplice to the offenses if Spann was not involved. The trial court wrote in its order that “Phil-more did not identify Brooks until after the threat that his recantation testimony could be stricken.” When pressed to explain how he knew Brooks, Philmore said only that he and Brooks were “in a relationship.” Spann presented no evidence in postconviction beyond Philmore’s testimony to support Philmore’s identification of Brooks.

Finally, this Court gives great deference to the trial court’s determination that Phil-more was not a credible witness. Initially, we take note of the evidence in the trial record concerning Spann’s efforts to influence Philmore’s testimony. Philmore testified at trial that Spann had instructed him in a letter to testify consistently with Spann’s original statement to law enforcement. In the letter submitted into evidence at trial, Spann wrote:

You have to tell them I didn’t have anything to do with it, and that you picked me up at Aunt Willie’s house in the LX. I don’t remember the time so don’t sweat that, but they also want to know who was with you if I wasn’t. So all you have to do is make up a name to tell them. Any name will do, the n* * * * can be dead it doesn’t matter. You remember Aunt Willie stays off of Tamarind on Adams St.... Oh yeah after you picked me up we go to Toya’s house, then Keykey’s [sic], after that Sophia’s and everything after that you know.

(Emphasis in original.) At the postcon-viction hearing, prosecutor Thomas Bakke-dahl testified that Spann initially denied writing the letter, and admitted to doing so only after handwriting experts were retained. That Spann previously sought to convince Philmore to alter his testimony clearly calls into question the veracity of Philmore’s recantation. Spann’s exhortation to Philmore to “make up a name” further undermines confidence in the truthfulness of Philmore’s current statements, particularly in light of Philmore’s unwillingness at the evidentiary hearing to provide information concerning Daryl Brooks.

The trial court provided an additional reason for finding Philmore not credible as a witness. Toward the end of the postcon-viction evidentiary hearing, the State questioned Philmore concerning his behavior during cross-examination. The State asked Philmore why he was smiling and why he appeared to be, in the State’s words, “kind of laughing” throughout the proceeding. Philmore responded that it was because the State kept asking him the same questions in different ways. The trial court addressed the exchange in its order:

As the State noted during the eviden-tiary hearing, the court observed multiple times when Philmore was smiling during his testimony and seemed amused by what was happening. He was also evasive in some of his answers. For example, when questioned as to how he met Daryl Brooks, he smiled and responded, “It is personal.” He continued to evade answering the question, all the time smiling, until he finally admitted that he had a “relationship” with Brooks. On another occasion, Philmore started smiling as he testified “something happened along the way,” referring to the chain of events when he had Perron step out of her car and then shot her in the forehead. There were other times when Philmore smiled during his testimony, and the court finds that his demeanor was such that he was not taking his testimony seriously.
There are times when witnesses smile inappropriately during testimony out of nervousness. When Philmore was confronted with his smiling behavior, rather than explaining that he was nervous, he instead explained that he thought it was amusing that the State was asking him the same question multiple ways. That was not the impression of the court. Instead of taking his testimony seriously, it appeared to the court that Phil-more was amused about sparring with the State.

As this Court has observed, “the trial judge is there and has a superior vantage point to see and hear the witnesses presenting the conflicting testimony. The cold record on appeal does not give appellate judges that type of perspective.” Spaziano, 692 So.2d at 178. Thus, in determining whether the record supports the trial court’s finding that the recantation was not credible, we give great deference to the trial judge’s observations concerning Philmore’s demeanor.

Spann cites Johnson v. Singletary, 647 So.2d 106 (Fla.1994), in support of his claim that the trial court erred in denying his motion for a new trial. In Johnson, the defendant filed a motion for postcon-vietion relief, raising in part claims of newly discovered evidence. As attachments to his motion, Johnson submitted statements from four affiants claiming that another individual, who had previously died in federal prison, had admitted on more than one occasion to the killing of the victim. The trial court denied the claim without an evidentiary hearing. Id. at 109-10. On appeal, this Court reversed the trial court’s ruling and remanded for an eviden-tiary hearing on the claims concerning the newly discovered confessions. In doing so, however, we emphasized that our conclusion was based on the fact that, absent an evidentiary hearing, the additional evidence left open “at least a possibility of factual innocence.” Id. at 111. We further emphasized that our ruling did not pass upon the credibility of the affiants or the truthfulness or admissibility of the new evidence, and that we “reach[ed] no conclusion with respect to whether [the statements] would probably result in a new trial even if they are admissible.” Id.

The instant case is in a different procedural posture and involves a different standard of review. Here, unlike the trial court in Johnson, the trial court granted the request for an evidentiary hearing and evaluated the reliability of the newly discovered evidence and the credibility of the defendant’s witness. Thus, the sole question before this Court is whether the trial court’s decision is supported by competent, substantial evidence. See Lambrix, 39 So.3d at 272. Because we find competent and substantial evidence in the record to support the trial court’s conclusion that Philmore’s recantation is untruthful, the trial court’s denial of relief must be affirmed.

V. CONCLUSION

For the reasons expressed in this opinion, we affirm the trial court’s denial of Spann’s successive motion for postconviction relief.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA and PERRY, JJ., concur.

CANADY, C.J., concurs in result.

      . On August 2, 2004, Spann filed his initial motion for postconviction relief pursuant to rule 3.851. After holding a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), as well an evidentiary hearing, and after permitting several amendments to the motion, the trial court denied all claims. This Court affirmed the trial court’s denial of postconviction relief. See Spann v. State, 985 So.2d 1059 (Fla.2008).

      . Philmore himself was convicted of first-degree murder and sentenced to death, although his trial was severed from Spann's trial. This Court affirmed Philmore's convictions and death sentence on direct appeal. See Philmore v. State, 820 So.2d 919 (Fla.2002).

      . While this Court’s opinion on direct appeal set forth a composite description of the offenses based on the evidence presented at trial, it was not necessary at that time to specifically identify which evidence came from Philmore and which evidence was presented through other witnesses. See Spann, 857 So.2d at 849-50.

      . Philmore did not explain at trial why he and Spann wanted to leave Florida. Other evidence, presented both at trial and in postcon-viction, indicated that there were serious criminal charges pending against Philmore and Spann at the time these events took place.

      . Ranew was asked to measure the distance to Hutchins’ house in West Palm Beach in response to an argument by Spann's counsel that the black male observed with Philmore by several witnesses was in fact Hutchins. Although these witnesses could not conclusively identify the individual they observed as Spann, they stated unequivocally that it was not Hutchins.

      . Spann wrote in the margin next to the underlined portion of the letter, “This is a big deal right here.''

      . The admissibility of handwriting expert testimony was an issue in Spann’s direct appeal. See Spann, 857 So.2d at 851.


author: QUINCE, J. POLSTON, J.,

text:
    STATE of Florida, Petitioner, v. Mark BARROW, Respondent.
    No. SC10-529.
    Supreme Court of Florida.
    May 31, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL, Daniel P. Hyndman and James J. Carney, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Fredrick R. Susaneck and Donna P. Levine of Levine and Susaneck, P.A., West Palm Beach, FL, for Respondent.
   QUINCE, J.

We have for review Barrow v. State, 27 So.3d 211 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal certified conflict with the decision of the Third District Court of Appeal in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), quashed, 91 So.3d 836 (Fla.2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The question before us is whether the trial court abused its discretion when it denied the jury’s request for specific trial transcripts during deliberations without advising the jury of the possibility of a read-back. Finding that the trial court erred, we approve the Fourth District’s decision in Barrow. Because we are unable to find beyond a reasonable doubt that the error did not contribute to the guilty verdict, Barrow is entitled to a new trial.

FACTS

Mark Barrow (Barrow) was charged with the first-degree murder of Rae Michelle Tener, whose body was never discovered. At the time of the murder, Barrow and his then girlfriend, Peggy LaSalle, were living together in a trailer along with Peggy’s two daughters. In a nearby trailer located in the same trailer park, the victim resided with her thirteen-year-old son, Zack. On the evening of August 24, 2004, Barrow hosted a party at his trailer which was attended by the following individuals: Zack, Shannon Rasmussen, Mark Jones, and Dave Barrow (Barrow’s nephew). Peggy did not attend the party because earlier that day Barrow had taken her to a rehabilitation facility, where she spent the night. The State’s theory at trial was that Barrow had killed the victim during the early morning hours of August 25, 2004, after the party had ended.

Rasmussen, Jones, and Zack each testified at trial for the State. The key points of Rasmussen’s testimony were as follows. She and Jones were drinking alcohol and smoking marijuana at the party. Barrow was also smoking marijuana. The victim came to Barrow’s trailer to take Zack, who had passed out, home. Barrow then asked Rasmussen to watch one of Peggy’s daughters for a while, which she agreed to do. Then, Barrow left his trailer with the victim and Zack. The victim and Barrow returned to his trailer, without Zack, about an hour or two later. Upon their return, although initially stating that the victim had asked that she and Jones leave the trailer, Rasmussen testified that Barrow had asked for them to leave because it was late. Jones and Rasmussen complied with the request and left Barrow’s trailer.

Jones’ testimony corroborated Rasmussen’s account of the events transpiring during the course of Barrow’s party. Jones stated that the victim came over to get Zack, and that Barrow went to the victim’s trailer with the victim and Zack. After they had left Barrow’s trailer, Jones and Dave Barrow walked over to the victim’s trailer where Jones observed Barrow and the victim sitting on a bed. Jones also saw that Zack was sleeping on the couch. When Barrow and the victim returned to Barrow’s trailer after being gone for a “couple hours,” they appeared “pretty buzzed” according to Jones. The victim and Barrow were the only people left in Barrow’s trailer when Jones and Rasmussen left.

Contrary to Rasmussen and Jones’ testimonies, Zack testified that he did not fall asleep at Barrow’s trailer and denied that his mother came by to take him home. Instead, Zack said at trial that he drank too much at the party and walked back to his trailer on his own to sleep. Zack testified that after he returned to his trailer, but before falling asleep, he noticed that both his mother and Barrow were present. Around seven or eight o’clock in the morning, Zack woke up and discovered that his mother was not home. He then walked over to Barrow’s trailer where he observed Barrow, through a window, appearing to be asleep on his couch. Zack knocked on Barrow’s trailer, which proved to be unsuccessful in getting Barrow’s attention. As he was leaving Barrow’s trailer, Zack discovered on the ground two packs of cigars which belonged to his mother, as well as a lighter. Zack testified at trial that his mother would drink — sometimes daily. Zack divulged that his mother had left him alone on three or four different occasions, with the longest absence consisting of about three days. Zack added that most of the time she would take her car with her. No witness testified that there was any violence between Barrow and the victim during the course of the party.

Approximately four days after the party was held, the victim’s mother went to her daughter’s trailer. The State called the victim’s mother to testify as to the observations she made. The victim’s car was parked in her driveway. Her bedroom was in disarray. The victim’s pants were located on the bedroom floor, with the pockets containing her driver’s license and money. The victim’s jewelry remained in her trailer. The victim’s keys could not be located. The victim’s mother testified that her daughter would drink.

After the testimonies of Rasmussen, Jones, Zack, and the victim’s mother, the State called Peggy as a witness. Anticipating that Peggy would testify as to statements allegedly made to her by Barrow regarding the victim’s death, counsel for the defense objected to the admission of such statements. The basis of the objection was that the State had not established the corpus delicti of the crime. The trial court overruled the objection.

Peggy’s' crucial testimony is detailed as follows. Barrow picked up Peggy from the rehabilitation facility in his van on August 25, 2004. There was a stench in the van which was not there the day before. Peggy noticed that Barrow was not acting normal and seemed angry. When Peggy asked Barrow what was wrong, Barrow cried and punched the steering wheel. Upon Peggy’s return to their trailer, Peggy noticed that it was “trashed” unlike the prior day. Barrow told Peggy that he had a party and disclosed that the victim came by.

Peggy found keys in Barrow’s van which turned out to belong to the victim. While cleaning inside- the trailer, Peggy came into contact again with the same stench she had smelled earlier in the van, although more potent inside the trailer. The stench originated from bloodied jeans which were contained in a paper bag. Peggy presented this discovery to Barrow who later admitted to her that he had placed the jeans in a dumpster which he set on fire. This testimony conflicted with Peggy’s statement to the police, in which she stated it was Barrow who discovered the bloodied jeans.

Barrow eventually confessed to Peggy and one of her daughters that he had killed the victim. Barrow explained to Peggy that when the guests left the party, the victim was there and made sexual advances toward him. This caused Barrow to become angry. Barrow then took the victim by the neck, kicked the door open, and threw her out of the trailer. The victim cracked her head on a railing causing her to bleed. The victim then threatened to call the police which made Barrow “snap” because he did not want to go to jail. Barrow then proceeded to pick her up and hit her head on a rock. Subsequently, he placed the victim inside a trash bag which was then placed on the passenger seat of his van. Barrow then drove to a body of water after first stopping for gasoline.

Before throwing the victim into the water, Barrow hit her with a sledgehammer, placed a zip tie around her neck, and broke her neck. Peggy believed that Barrow said that he had thrown the sledgehammer into the water as well. For the purpose of hiding any evidence, Barrow threw the clothes he was wearing out of the window on his way home. Barrow admitted that the passenger seat of the van was covered with blood which he wiped up with a towel prior to picking up Peggy from the rehabilitation facility. Barrow also admitted to Peggy that what she smelled in the van on their way home from rehab was the victim. Peggy told an ex-boyfriend about Barrow’s incriminating statements, who then notified the police. Peggy testified that she was with Barrow at a car wash where she witnessed him scrubbing the seats of his van, but Peggy did not convey this information to the police before trial. It also came out during trial — through a detective’s testimony — that Peggy told the police that Barrow told her he wanted to leave the state for what he had done.

Peggy’s credibility was called into question. Peggy said that she spent the night in rehab because she had taken too many Xanax, and she acknowledged that she had a bad memory. On cross-examination, Peggy admitted she was abusing Xanax and alcohol at the time Barrow made the incriminating statements to her. She would also sometimes smoke marijuana while abusing Xanax and alcohol. Despite testifying that she had known the victim since eighth or ninth grade, Peggy apparently told the police that she had known the victim since fifth grade. Peggy considered the victim to be a “whore” and informed the police that she would break her kneecaps if she was sleeping with Barrow. Also on cross-examination, Peggy admitted that she had previously filed a domestic violence complaint against Barrow for pushing her into a railing — the same railing the victim hit her head on. Peggy was aware that Barrow had obtained a restraining order against her.

A crime scene investigator testified that a presumptive test was administered in several areas of Barrow’s van, indicating the possible presence of blood in the passenger’s seat and door, the driver’s seat, and the screw areas of a cell phone discovered in the back of the van. A screening test of several areas of the front quadrant of the van established that blood, although not visible, was previously present in the seatbelt receptacle area on the passenger’s side, the passenger side’s front console, the dashboard area, the right side of the driver’s seat, the back portion of the driver’s seat, and the right side of the driver’s side floor. The investigator acknowledged that the screening test gives “quite a few false positives” and stated that a screening test involves chemical reactions. Counsel for Barrow then asked if the van was filled with different bottles of chemicals and whether the van was a work van. The investigator responded that the van appeared to be a work van. The investigator was unable to state how long the blood found in the seats had actually been there. No blood stains were detected in the foam rubber underneath the cushions of the seats.

DNA profiles were obtained from the swabbing of three locations within the van: the interior passenger door, the screw hole of the cell phone, and the left side of the passenger seat. At trial, the forensic technician could not confirm the presence of blood on the swabs of the interior passenger door, but the samples from the screw hole of the cell phone and the left side of the passenger seat were identified as coming from blood. The DNA profiles were the same and thus originated from one contributor. For comparative analysis purposes, DNA samples were taken from Barrow, Zack, and the victim’s parents. As testified by the technician, the results of the analysis were as follows: Barrow was excluded as the donor; Zack could not be excluded as the biological child of the DNA donor profile; and the victim’s parents could not be excluded as the biological parents of the DNA donor profile. The technician sent these materials to a professor of biological sciences, who after evaluating the information and applying a kinship identity analysis, concluded that the victim was the donor of the DNA profiles found in the three stains taken from Barrow’s van. No fingerprint evidence was offered at trial.

Barrow was interviewed by the police. These interviews were recorded, and the State published two recorded interviews to the jury. Defense counsel objected to the playing of the recordings, asserting that the corpus delicti of murder had not been proven by the State. The trial judge reserved ruling on both objections.

The first interview occurred one week after Barrow’s party. Barrow explained in the interview that he last saw the victim the night of the party at around eleven o’clock or midnight when she came to his trailer looking for Peggy. Barrow told the victim that Peggy was in rehab, and then the victim left. According to Barrow, the victim was in his trailer for less than two minutes. He maintained that he never had a sexual relationship with the victim, and he denied going to the victim’s trailer the night of the party. Barrow expressed his dislike for the victim because she had offered Xanax to Peggy even though she was aware of Peggy’s pill problem.

The second recorded interview of Barrow took place nine days after the first interview. In the period between the two interviews, Peggy’s ex-boyfriend informed the police of Barrow’s incriminating statements. The police spoke with Peggy earlier in the day before Barrow was interviewed for the second time.

Barrow stated during the second interview that the victim was not at his party, although she came to his trailer once looking for Zack, and another time, around midnight, looking for Peggy. The latter occurrence was the last time Barrow saw the victim and she left by herself after she was informed that Peggy was in rehab. Later in the interview, Barrow disclosed that when the victim came over to his trailer for the first time the night of the party, she went on a “beer run” with him and Dave Barrow. Barrow admitted he was drunk at his party. After initially denying that the victim had ever made advances toward him, Barrow later said that on three prior occasions the victim had done so, but maintained that the victim did not attempt to do so the night of his party. Barrow did tell Peggy that the victim had made advances toward him in the past. Barrow described the victim as a “slut,” and he was upset that the victim would bring pills to Peggy. At first Barrow stated that he did not remember having a conversation with Peggy about the victim, but then said that he and Peggy only made comments concerning her sexual habits.

Before the State rested, the trial judge found that the State had established the corpus delicti of murder. The defense did not present a case. The jury then retired to deliberate.

Ten minutes into deliberations, the jury submitted a note to the court requesting “all the transcripts of the witnesses’ testimonies, Zack, Shannon, Peggy, Mark Jones, Mark Barrow.” The trial judge informed the lawyers that because there were no transcripts, the court would tell the jury that “there are no transcripts.” The State then suggested that the trial judge advise the jury that they could request read-backs, but the trial judge said, “No, I don’t do read backs.” The trial court explained that case law establishes that the jury is not entitled to a read-back because the issue is within the broad discretion of the trial court. The trial court specifically found that allowing read-backs would be impractical. After informing the attorneys that the court intended to submit a response to the jury stating that “there are no transcripts, please rely on your own recollection of the proceedings,” counsel for Barrow asked the judge to instruct the jurors that they have a right to ask the court for a read-back. That request was denied. The trial court’s written response to the jury read as follows: “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Hours later, the jury found Barrow guilty of first-degree murder. The court sentenced Barrow to life imprisonment.

Barrow appealed his first-degree murder conviction to the Fourth District Court of Appeal, where he first argued that the trial court abused its discretion in its handling of the jury’s request for transcripts. Barrow v. State, 27 So.3d 211 (Fla. 4th DCA 2010). In addressing this claimed error, the district court noted that trial courts have “wide latitude in the area of the reading of testimony to the jury” pursuant to Florida Rulé of Criminal Procedure 3.410. Id. at 216 (quoting Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). The district court went on to discuss the Fifth District Court of Appeal’s decision in Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992), as well as its prior decision in Avila. Barrow, 27 So.3d at 217.

In Roper, in responding to the deliberating jury’s request to “see” the victim’s cross-examination, the trial court told the jury that a transcript had not been produced and instructed it to rely on its collective recollection. Roper, 608 So.2d at 533-34. On appeal, the Fifth District rejected the State’s contention that if a jury requests to see a transcript but not to have testimony read back, a trial court does not abuse its discretion instructing the jury to rely upon its recollections. Id. at 535. The Fifth District reasoned that trial court’s response

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.... 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.

Id. Unable to find that the trial court’s refusal to even consider the reading of this testimony was harmless, the Fifth District reversed and remanded the case for a new trial. Id. at 536.

In Avila, the jury requested to “review the timing of specific events set forth by the testimonies of four named alibi witnesses.” 781 So.2d at 414. The trial judge informed the jury that there were no transcripts available and instructed the jury to rely upon its collective recollection. Id. at 415. In reviewing that response, the Fourth District stated that the trial court “without mentioning that a method of readback was available, informed the jury that there were no transcripts and that the jury members should rely upon their collective recollection.” Id. at 415-16 (emphasis added). The Fourth District held that the trial court abused its discretion because the response “may have confused the jury as to whether a readback of testimony was permissible.” Id. at 416.

In addition to discussing Roper and Avila, the district court below explained the contrary decision from the Third District in Hazuri. 27 So.3d at 218. In Hazuri, the Third District held that the trial court’s instruction to the jury to “rely on their own recollection of the evidence” was a “fair and legally accurate” response to the jury’s request for trial transcripts.1 23 So.3d at 858. In concluding that the trial court did not abuse its discretion, the Third District specifically found that the trial court was under no obligation to tell the jury that a read-back might be available upon request. Id. at 859-60.

The Fourth District below in Barrow found the Roper and Avila decisions to be “more in harmony with Florida’s view of a jury’s role in a criminal trial.” 27 So.3d at 218. The district court explained:

Florida law encourages a jury to make a considered, careful evaluation of detailed evidence. As the Supreme Court has written, 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.” Sutton v. State, 51 So.2d 725, 726 (Fla.1951). Part of a trial judge’s role is to forthrightly make the jury aware of those tools available under the rules of criminal procedure that will assist the jury in arriving at its decision. The judge’s role is to facilitate careful deliberation. Deference should be accorded to a jury’s request to more closely examine the trial testimony.

Id. The district court found that the trial judge’s response to the jury’s request for transcripts that no transcripts were available “effectively negat[ed] an option allowed the jury under Rule 3.410.” Id. (quoting Roper, 608 So.2d at 535). The district court held that the trial court abused its discretion because it denied the jury’s request for transcripts without informing the jury about the potential for read-backs of witnesses’ testimony. Id. at 213. Accordingly, the district court certified conflict with Hazuri. Id. at 218. The district court observed that the jury sought to review the trial transcripts of key witnesses who attended Barrow’s party on the night in question, as well as the transcript of Peggy, who testified as to the incriminating statements allegedly made to her by Barrow. Id. at 219. In addition, the jury was interested in reviewing the statements Barrow had made to the police. Id. Noting the conflicting evidence presented in a case where details were crucial, the district court found that the error committed by the trial court was not harmless, and accordingly, reversed and remanded the case for a new trial. Id. at 213, 219.

The State filed a notice to invoke this Court’s discretionary jurisdiction on the basis of certified conflict. This Court accepted jurisdiction.

ANALYSIS

The issue before us is whether the trial court abused its discretion in failing to inform the jury of the possibility of a read-back when it denied the jury’s request for transcripts. We recently decided Hazuri v. State, 91 So.3d 836 (Fla.2012), which involved a jury’s general request for trial transcripts during deliberations; the jury did not expressly request a “read-back.” Id., 91 So.3d at 840. In response to the jury’s request, the trial court instructed the jury to rely on its own collective recollection of the evidence. Id., 91 So.3d at 839-40. On appeal, the Third District found the response “fair and legally accurate,” and therefore held that the trial court did not abuse its discretion. Id.

In deciding whether the trial court’s response to the jury’s request constituted error, we noted that physical transcripts are prohibited in the jury room as it is omitted from the list of items specified in Florida Rule of Criminal Procedure 3.400, whereas read-backs are authorized pursuant to Florida Rule of Criminal Procedure 3.410, which provides as follows:

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.

Hazuri 91 So.3d at 840-41. Trial courts have broad discretion in deciding whether to allow a read-back request. Id., 91 So.3d at 840-41 (citing In re Amends, to Fla. Rules of Civil Proa, 967 So.2d 178, 183 (Fla.2007)).

Whether the request is called a transcript request or a “read-back” request, the jury — ordinarily composed of individuals unfamiliar with legal terms of art— clearly has the intention to review trial testimony. Id., 91 So.3d at 845. We stressed that trial courts ought to liberally interpret a jury’s request for transcripts so that it may assist the jury in completing its fact-finding duty. Id., 91 So.3d at 845-46. Thus, we adopted the following two rules in order to give the proper effect to rule 3.410: “(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.” Id. Further, if the jury made a general request for trial transcripts, the trial court must also instruct the jury that any subsequent read-back request shall clarify which portion or portions of trial testimony the jury seeks to review. Id.

We held that the trial court in Hazuri erred in instructing the jury that it was to rely on its own recollection of the evidence without informing the jury of its right to request a read-back, as well as in failing to instruct the jury to clarify its general request for transcripts. Id., 91 So.3d at 846. Because determining the effect of the errors would amount to pure speculation, the trial court committed reversible error, entitling Hazuri to a new trial. Id., 91 So.3d at 846-47 (citing to Johnson v. State, 53 So.3d 1003 (Fla.2010)). As a result of our holding, we quashed the district court’s decision in Hazuri, and approved of the reasoning of the district courts of appeal in Barrow, Avila, and Roper. Id., 91 So.3d at 847.

In the instant case, during deliberations, the jury requested transcripts pertaining to the testimonies of Zack, Rasmussen, Peggy, Jones, and Barrow. In response, the trial court told the jury that there were no transcripts available and instructed the jury to “rely on the evidence presented during the proceedings.” In light of our decision in Hazuri, the trial court improperly (1) used language that may have misled the jury into believing read-backs were prohibited; and (2) informed the jury that there were no transcripts available without informing the jury of the availability of a read-back request. Notwithstanding that this Court decided Hazuri years after Barrow was tried for murder, the trial court abused its discretion as it was bound to follow the Fourth District’s decision in Avila. See Avila, 781 So.2d at 415-16 (finding the trial court’s instruction to the jurors that there were no transcripts and for them to rely upon their collective recollection without informing them about the potential availability of a read-back was an abuse of discretion because it “may have confused the jury as to whether a readback of testimony was permissible”). Because Barrow’s defense counsel had requested the trial court to inform the jury of the availability of a read-back, this error was preserved for review.

Next, we determine whether the trial court’s abuse of discretion warrants a new trial. During deliberations, the jury’s transcript request listed specific witnesses whose testimonies it sought to review. “When a specific request from the jury to read back testimony is at issue, a reviewing court is able to conduct a harmless error analysis.” Johnson, 53 So.3d at 1006 n. 4. Because a jury seeks to review trial testimony whether the request is characterized as a request for a trial transcript or for a “read-back,” it must follow that an improper denial of a jury’s request for trial transcripts of the testimonies of specific witnesses is also subject to a harmless error analysis. The harmless error test requires the State “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Ventu-ra v. State, 29 So.3d 1086, 1089 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)).

Applying the harmless error test, it is significant here that the testimonies sought to be reviewed by the jury included the testimonies from the only witnesses at trial who saw the victim the night of Barrow’s party, as well as Barrow’s own statements made to the police. Because the testimonies of these witnesses conflicted on certain points, a review of the testimonies could have been most helpful to the jury. Undoubtedly, Peggy’s testimony was the most damaging because she said that Barrow admitted to her that he killed the victim and disposed of her body. A review of Peggy’s testimony, and its inherent conflicts and questionable statements, would have been helpful to the jury’s determination of her credibility. Peggy admitted that at the time Barrow allegedly made the incriminating statements, she was abusing alcohol and Xanax, which, in her words, “makes you forget.” Furthermore, Peggy testified that she had previously accused Barrow of domestic battery, including an accusation that he pushed her, causing her to hit her head against a railing — an incident similar to the alleged altercation between Barrow and the victim. Peggy also acknowledged that Barrow had obtained a restraining order against her. Based on the quality of the testimonies presented at trial, and the fact that witness credibility was extremely important in this case, we cannot conclude beyond a reasonable doubt that the absence of a review of the testimonies sought by the jury did not contribute to the guilty verdict. Finding the error was not harmless, we conclude that Barrow is entitled to a new trial.

CONCLUSION

For the reasons expressed above, we approve the decision of the Fourth District in this case.

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. The jury requested transcripts. The trial court sent a proper note to the jury saying: “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” No read-backs were requested and no instructions given on read-backs. 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 a 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).”).

      . By the time of trial, Peggy's last name had changed to Reedy.

      . The trial judge considered giving the jury the tapes of Barrow's statements to the police, but defense counsel did not agree.

      . As to the trial judge’s statement to counsel that he "do[es]n’t do read backs,” the Fourth District noted, "It is an abuse of discretion for a trial judge to refuse to exercise discretion, to rely on an inflexible rule for a decision that the law places in the judge’s discretion.” Id. at 218. The district court found that the lower court's "apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area.” Id. at 213.

      . In addition to the read-back issue, Barrow argued in the district court that his alleged confession — which came by way of Peggy’s testimony — was improperly admitted because the State had failed to establish corpus delicti at trial. See id. In addressing this issue, the district court explained that in order to satisfy corpus delicti in a homicide, the State must prove: "(1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person.” Id. at 220 (quoting Meyers v. State, 704 So.2d 1368, 1369 (Fla. 1997)). Ultimately, the district court found that corpus delicti had been established, based on the following evidence presented: (1) the victim had not taken her identification, money, and other belongings with her; (2) three years had transpired between the night of Barrow’s party and the murder trial; (3) the victim was last seen with Barrow; (4) the victim’s blood was discovered in Barrow’s van; and (5) the story Barrow told changed and was contradicted by witnesses at trial. Id.

      .A copy of the charges, verdict forms, and all things received in evidence (other than depositions) are permitted in the jury room, while jury instructions must be taken into the jury room. Fla. R.Crim. P. 3.400(a)-(b).

      . If thereafter a read-back is requested by the jury, the granting of such is still within the trial court’s broad discretion.

      . We also approved of Judge Cope's dissent in Hazuri. Id.

      . As noted earlier, at trial the State also suggested that the trial court inform the jury that it could request a read-back.

      . We do not decide whether the trial judge’s statement, "I don’t do read backs” was a refusal to exercise discretion which constituted error. See Steinmann v. State, 839 So.2d 832, 832 (Fla. 4th DCA 2003) ("It is error for the trial court to refuse or fail to exercise its discretion.”). In addition, we also refrain from deciding whether the corpus delicti of murder was established in the instant case, but do note that the State was required to show: "(1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person.” Meyers v. State, 704 So.2d 1368, 1369 (Fla. 1997).