Greene v. State

765 So. 2d 971, 2000 Fla. App. LEXIS 11337
CourtDistrict Court of Appeal of Florida
DecidedSeptember 6, 2000
DocketNo. 4D99-2416
StatusPublished

This text of 765 So. 2d 971 (Greene v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. State, 765 So. 2d 971, 2000 Fla. App. LEXIS 11337 (Fla. Ct. App. 2000).

Opinion

ON MOTION TO TRANSCRIBE TAPE RECORDED STATEMENTS ADMITTED DURING TRIAL

WARNER, C.J.

The Public Defender of the Fifteenth' Circuit, appellant’s attorney, has requested that this court order the transcription of taped statements played during trial which were not reported, and thus not transcribed, by the court reporter. We requested responses from the state attorney, public defender, and Chief Judge of the Seventeenth Circuit regarding the practices employed in that circuit, and each has filed a response. In addition, while this motion was pending, the supreme court addressed the issue of taped statements played during trial in Martinez v. State, 761 So.2d 1074 (Fla.2000), which has bearing on this issue. We grant the motion in part.

The motion of the public defender provides the following statement of facts on the transcript issue:

This is an appeal from a conviction for second degree murder and a sentence of 300 months (25 years) imprisonment. During the course of appellant’s trial, a tape recorded statement by appellant to Detective Palmer was admitted into evidence and played for the jury commencing at page 368 of the record. However, the court reporter did not provide a transcript of that portion of the proceedings as the tape was played for the jury. There were objections during the playing of the tape recording relating to certain inadmissible evidence and the court’s prior ruling granting a motion in limine excluding certain areas of evidence. Although the court reporter’s transcript shows the objections that were made during the playing of state’s exhibit 4, various other remarks and a recess in the proceedings, the court reporter has not provided a transcript of state’s exhibit 4 as it was played for the jury. There is no other transcript of the state’s exhibit 4 admitted into evidence. The court reporter was required to take down everything that was heard during the course of the trial because otherwise the parties cannot tell to what and when during the playing of the tape the objections were registered.

In addition, the court reporter recorded that the jury was polled, but did not transcribe the jury poll and their responses. The public defender notes that this is a common occurrence in the Seventeenth Circuit, and the state attorney and public defender routinely agree to excuse the court reporter from having to transcribe taped statements as they are played in open court. Then, when a transcript of the proceedings is ordered for purposes of appeal, the court reporter fails to obtain the tape and transcribe the same. A motion to supplement the record with a transcript of the taped statement is then required, routinely delaying appeals while the supplemental transcript is prepared.

The Office of the Public Defender of the Seventeenth Circuit responds that it has conducted training sessions with its trial attorneys and instructed them to request that the court reporter transcribe tape recordings played during hearings or trials. On the other hand, the State Attorney of the Seventeenth Circuit asserts that whether the content of an audio or video tape published to a jury is reported is determined on a case by case basis. Many times the state attorney and public defender agree that the tape is not to be reported, which they contend is consistent with rule 2.070(c) of the Florida Rules of Judicial Administration.

[973]*973On behalf of the criminal bench of the Seventeenth Circuit, the Chief Judge’s response indicates that there is no practice of ordering court reporters not to transcribe tapes but that a majority of judges do allow court reporters not to report tapes, provided that both the defense and state agree. The Chief Judge notes some practical considerations with having a court reporter reporting each tape as it is played in open court: (1) tapes are often inaudible and difficult to transcribe in the courtroom, and a more accurate transcription can be made by a court reporter in the privacy of his or her office or home;1 (2) transcription during trial slows the trial process; (3) requiring a court reporter to transcribe a tape during trial may invite an inaccurate transcript and thus raise an artificial ground for appeal; (4) by allowing a court reporter a break from transcribing a tape, it keeps the court reporter fresh for the remainder of the trial, increasing accuracy of the court reporter.

The Chief Judge also offers the following suggestions. Usually the defendant, through discovery, has the opportunity to receive a tape prior to trial and could agree with the state and the court to enter a transcript into the record at trial. Any issues concerning irregularities could be addressed by the court prior to trial; then the transcript would already be part of the record for appeal. Second, the public defender should take the responsibility of identifying in designations on appeal the fact that a tape was played and must be recorded, thus speeding the transcription process for appeal.

We appreciate the common sense proposals of the Chief Judge. However, Martinez, recently decided by the supreme court, suggests a different response. In that case, a transcript was made of a tape prior to trial and given to the jury to follow as the tape was played. The court established the proper procedures to be followed for use of transcripts at trial. In connection with Martinez’s claim that the transcript used by the jury at trial included many inaudible portions, the court noted that in the transcript of the proceedings the court reporter simply notes portions of the tape as “inaudible.” The court observed that:

the fact that the court reporter did not transcribe all of the portions that appeared on the transcript does not establish that those portions transcribed are in fact inaudible. Rather, it may simply show that from the court reporter’s vantage point, portions of the recording were too difficult to hear to be able to simultaneously record them. While the court reporter is required to transcribe the contents of the tapes as they are played at trial, the court reporter’s transcript of the tape does not establish the inaccuracy of the transcript or the tape’s audibility. See Lawrence v. State, 632 So.2d 1099 (Fla. 1st DCA 1994).

Id. at 1087 (emphasis added).

The court’s citation to Lawrence is instructive. In Lawrence, as in this case, the court reporter did not transcribe the tape played for the jury. The court pointed to rule 2.070(b) of the Florida Rules of Judicial Administration as requiring transcription. That rule provides:

(b) When Reporting Required. All criminal and juvenile proceedings, and any other judicial proceedings required by law or court rule to be reported at public expense, shall be reported.

(Emphasis added). The court concluded that the rule required the reporting of the tape when played in court:

[ujnless the content of a tape played in open court is not a part of “the proceedings” we must conclude that the court reporter is obligated to make a good faith effort to report the tape when played to the jury and later transcribe it. Obviously, the playing of the tape [974]*974and what is heard by the jury are clearly part of trial proceedings.

Id. at 1100. The court further noted that:

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Related

Lawrence v. State
632 So. 2d 1099 (District Court of Appeal of Florida, 1994)
Jackson v. State
723 So. 2d 319 (District Court of Appeal of Florida, 1998)
Martinez v. State
761 So. 2d 1074 (Supreme Court of Florida, 2000)
Chavers v. State
775 So. 2d 328 (District Court of Appeal of Florida, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
765 So. 2d 971, 2000 Fla. App. LEXIS 11337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-state-fladistctapp-2000.