Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-58 _____________________________ CARL ANTHONY WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Steven B. Whittington, Judge. May 26, 2020 PER CURIAM. Appellant, Carl Anthony Williams, appeals his convictions for kidnapping to commit or facilitate the commission of a felony, trespassing, aggravated battery with a deadly weapon, and aggravated assault with a deadly weapon. Appellant raises three issues on appeal, only one of which merits discussion. Appellant contends that the trial court erred in denying his motion for mistrial because two jurors, one of whom was the alternate, did not hear what they estimated to be twenty percent of the testimony of Tavarius Blue, a State witness and one of the alleged victims. For the reasons set forth herein, we find no abuse of discretion on the trial court’s part and affirm Appellant’s convictions and sentences. FACTUAL BACKGROUND During trial, the State presented the testimony of the four alleged victims in the case. Tavarius Blue’s grandfather and mother testified that they heard gunshots outside the family’s home on the day of the incident. When the two went outside, Appellant, who was described as Tavarius’s “associate,” pointed a gun at them while he was physically restraining Tavarius in the street in front of the home. Appellant instructed them to go back into their home and warned them not to call the police. During a subsequent 911 call, Tavarius’s grandfather told the operator that “[t]hey [Appellant and another man] got my grandson outside with a gun to him,” and he later stated that the men, including Tavarius, were gone. A third alleged victim, the mother of one of Tavarius's friends, testified about an incident occurring that same day when Tavarius, Appellant, and another man came to her house asking where her son was. The other man held a gun to her head while Tavarius and Appellant went into her garage and then went inside her home. Appellant was pointing a gun at Tavarius as he was pushing him inside. She described Appellant as acting crazy and looking for something. Appellant and the other man eventually left without Tavarius. Tavarius testified that he called Appellant on the day of the incident to purchase marijuana from him. After Appellant and the other man drove to Tavarius’s house, Appellant, according to Tavarius, put a gun to his head and asked him where his “stuff at.” The firearm “went off” at some point. Tavarius also testified that Appellant pointed the gun at his mother and grandfather when they came outside and that they then went to his friend’s house where he believed Appellant was searching for marijuana. Later in the trial, two jurors, one of whom was the alternate, expressed their difficulty in hearing some of Tavarius’s testimony. They estimated that they heard approximately eighty percent of it. The jurors were subsequently provided with listening devices, which, according to them, alleviated the issue. When the trial court later asked for the attorneys’ suggestions concerning how to ascertain what parts of Tavarius’s testimony the two jurors were unable to hear, defense counsel moved for a mistrial “because they didn’t hear a fifth of the most important witness’s testimony.” When the prosecutor requested a read-back of Tavarius’s 2 testimony, defense counsel argued that a read-back was not sufficient “because you cannot capture a person’s demeanor and attitude through a read-back.” According to counsel, if the jurors did not know what Tavarius was saying, “then they can’t realistically evaluate his demeanor either because they don’t know what his behavior was like for parts they couldn’t hear.” The prosecutor argued that from her observations of the jurors, they “appeared to be attentive in terms of their body language in looking at the witness and making observations regarding his physical presence in the courtroom.” The trial court ruled as follows: All right. I have been watching the jury all along, as I always do, and this is a jury that is certainly engaged in the trial and has been actively paying attention. But, of course, they didn’t raise their hand at the time and indicated that they could not hear. But they didn’t and they did it at the first break, which was the lunch break. I think a mistrial is far too extreme of a remedy under these circumstances. They were able to observe Mr. Blue and his demeanor and his body language, and most – the vast majority of his testimony, according to them, they heard. Only a small part, though not insignificant at 20 percent, they didn’t hear. So I’m going to deny the motion for mistrial, grant the State’s motion for a read-back. We will do that here shortly. Following the trial court’s ruling on defense counsel’s request to question Tavarius about his pending criminal charges, Tavarius was again cross-examined by defense counsel. The following day, a “read-back” of Tavarius’s direct and initial cross-examination was done by the court reporter. The trial court called Tavarius “back to do the read-back.” After the jurors acknowledged that they were able to hear the read-back, the State rested its case. Appellant later testified that on the day of the incident, he saw a car belonging to Tavarius’s friend leaving his driveway. Upon discovering that $2,000 had been stolen from his home, Appellant went to Tavarius’s house to buy marijuana and to ask him where his money was. According to Appellant, Tavarius 3 pulled a firearm out, and the two began to wrestle. He further testified that Tavarius admitted to taking the money and told him that he would show him where it was. The jury found Appellant guilty of kidnapping to commit or facilitate the commission of a felony, trespassing, aggravated battery with a deadly weapon, and three counts of aggravated assault with a deadly weapon. The trial court adjudicated Appellant guilty and imposed concurrent sentences of twenty, fifteen, and five years’ imprisonment. This appeal followed. ANALYSIS Appellant argues on appeal that the trial court erred in denying his motion for mistrial. Generally, a ruling on such a motion is reviewed on appeal for an abuse of discretion. Heady v. State, 215 So. 3d 164, 165 (Fla. 1st DCA 2017). A trial court should only grant a motion for mistrial when an error is deemed so prejudicial that it vitiates the entire trial and deprives the defendant of a fair trial. Id. at 165–66. In addressing this issue, we first note that while Appellant challenges on appeal the jurors’ claim that they heard eighty percent of Tavarius’s testimony, defense counsel did not challenge that claim below. Instead, she accepted that percentage as a basis for moving for a mistrial. Although Appellant also argues on appeal that the read-back was improper because it allowed the other jurors to hear Tavarius’s testimony a second time, thereby giving it greater weight and attention, that argument was not made below either and was, thus, not preserved. See State v. Currilly, 126 So. 3d 1244, 1245 (Fla. 1st DCA 2013) (noting that in order to preserve an argument for appeal, it must be the specific argument that was raised below). Turning to the arguments that were raised below, defense counsel asserted in favor of the motion for mistrial that “you cannot capture a person’s demeanor and attitude through a read- back” and “if the jurors didn’t know what he was saying when he was saying it, then they can’t realistically evaluate his demeanor either because they don’t know what his behavior was like for parts they couldn’t hear.” Appellant and the State agree that the specific issue of a juror’s inability to hear a certain portion of a witness’s 4 testimony has not yet been addressed in a Florida appellate opinion. Appellant relies upon a number of out-of-state cases in support of his argument. For instance, in State v. Turner, 521 N.W.2d 148, 149 (Wis. Ct. App. 1994), the defendant, who was found guilty of three counts of first-degree sexual assault of a child, argued that because two jurors were hearing impaired and did not hear some of the testimony of the two children, he was denied his right to an impartial jury and the right to a unanimous jury verdict. The appellate court agreed with the appellant and reversed. Id. at 151. In doing so, the appellate court explained that on twenty-three occasions during the trial, the court or the attorneys noted that the jury was having trouble hearing the two child victims. Id. at 150. It was further noted that the trial court explained that at least two of the jurors could not hear the testimony and there were “a number of them, possibly six, who were having difficulty hearing the testimony.” Id. In People v. Miller, 725 N.E.2d 48, 53 (Ill. App. Ct. 2000), the jury, during deliberations on the charge of predatory criminal sexual assault of a child, sent a note to the judge explaining that the “T.V. kept going out during [the child victim’s] testimony” and “[t]here were parts of her testimony we did not see.” The jurors asked if the tape picked up all the testimony and, if so, could they review the tape. Id. After the trial court told the jurors that there should be no gaps in what they heard, the jury sent a second note, raising “great concern” over the child’s testimony and requesting a copy of such because of the poor quality of the video. Id. The trial court subsequently read the transcript of the child’s testimony to the jury and denied the defendant’s “posttrial motion” regarding the issue. Id. The appellate court reversed because it could not be certain from the record if the jury had any basis upon which to rationally evaluate the child victim’s credibility and if the jurors were influenced to give greater credibility to the testimony because the judge read it to them. Id. at 56–57; see also State v. Hayes, 17 P.3d 317, 321 (Kan. 2001) (holding that the lower court erred in refusing to declare a mistrial where the juror at issue heard none of the defendant’s testimony). In contrast to Turner and Hayes, this case presents a situation where only two jurors, one of whom was the alternate who was discharged prior to jury deliberations, estimated that they heard 5 eighty percent of Tavarius’s testimony. The trial court ordered a read-back of the testimony, something that was not mentioned in Turner. Unlike the situation in Miller, not only were the jurors able to see Tavarius testify and observe his body language and demeanor on two occasions, but he was also recalled for the read- back of his testimony. ∗ Moreover, the read-back was done by the court reporter and not the trial court. The trial court found that “this is a jury that is certainly engaged in the trial and has been actively paying attention” and that a mistrial was “far too extreme of a remedy” given that the jurors “were able to observe [Tavarius] and his demeanor and his body language, and most – the vast . . . majority of his testimony . . . .” Under these circumstances, we find no abuse of discretion in the trial court’s ruling. Accordingly, we affirm Appellant’s convictions and sentences. AFFIRMED. LEWIS, ROWE, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee. ∗ It is for these reasons that we reject the State’s attempt to liken this situation to one where a juror sleeps through testimony and neither hears nor sees a witness testify. See Ortiz v. State, 835 So. 2d 1250 (Fla. 4th DCA 2003); Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980). 6