Thompson v. State

507 So. 2d 1074, 12 Fla. L. Weekly 204
CourtSupreme Court of Florida
DecidedApril 23, 1987
Docket68187
StatusPublished
Cited by12 cases

This text of 507 So. 2d 1074 (Thompson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. State, 507 So. 2d 1074, 12 Fla. L. Weekly 204 (Fla. 1987).

Opinion

507 So.2d 1074 (1987)

Dennis Wayne THOMPSON, Petitioner,
v.
STATE of Florida, Respondent.

No. 68187.

Supreme Court of Florida.

April 23, 1987.
Rehearing Denied June 24, 1987.

Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, and Richard J. Preira, Sp. Asst. Public Defender of the Law Offices of Weinstein & Preira, Miami Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Randi Klayman Lazarus and Richard L. Kaplan, Asst. Attys. Gen., Miami, for respondent.

BARKETT, Justice.

We have for review Thompson v. State, 480 So.2d 179 (Fla. 3d DCA 1985), because of express and direct conflict with Bova v. State, 410 So.2d 1343 (Fla. 1982), and State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

During the trial, the court precluded the defendant from consulting with his counsel during a recess. The district court correctly determined this to be an erroneous deprivation of the defendant's right to counsel. The issue before us is whether the district court applied the appropriate test in determining that this error was harmless.

Dennis Thompson was charged with grand theft and dealing in stolen property. While testifying at trial, Thompson was asked by his lawyer if he had ever before been charged with theft, burglary, or dealing in stolen goods. Thompson answered "no." In fact, Thompson had been arrested for a theft and burglary while out on bond on the instant charges. Thompson's original negative answer was apparently given pursuant to the advice of defense counsel, who erroneously believed that despite his question this arrest could not be the subject of impeachment on cross-examination because it had occurred subsequent to (and therefore not "before") his arrest for the offenses charged in this case.

Prior to cross-examination, the state obtained a recess to research the proper method of impeaching Thompson with this subsequent arrest. During the recess, defense counsel requested the opportunity to consult with his client. The trial judge *1075 denied this request because Thompson was "still on the stand." During the subsequent cross-examination on this arrest, unexpected by the defendant and his counsel prior to the recess, Thompson gave an imprecise response to the state's first question regarding the unrelated arrest and then volunteered a summary of the facts surrounding this occurrence for which he had not yet been tried.

In affirming Thompson's conviction, the Third District acknowledged that the trial court erred in precluding the requested consultation, but found the error to be harmless because there was no "cognizable prejudice." Although our decision in Bova held that a harmless error analysis for such an error is required, the district court failed to follow the harmless error test set out in Bova.

In Bova, this Court held that a defendant's right to counsel encompasses the right to consult with his attorney during any trial recess, even if the recess is in the middle of the defendant's testimony. 410 So.2d at 1344. The Bova court, however, then employed the harmless error test set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to the deprivation of that right during a recess. The court reviewed the entire record and found beyond a reasonable doubt that the restraint on defense consultation did not contribute to the jury's verdict.

In the instant case, the district court did not apply the Chapman harmless error test. Instead, the court found the error to be harmless simply "because it resulted in no cognizable prejudice." 480 So.2d at 182. This is not the appropriate standard. As we recently explained in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986), the harmless error test

is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Applying this test to the facts of this case, we find that the trial court's error in denying attorney-client consultation during the recess in question was not harmless. Thompson's credibility was a crucial issue in his trial. The state was granted a thirty-minute recess for the sole purpose of researching ways to impeach him regarding a subsequent arrest which his lawyer had apparently advised him would be inadmissible. Thus, Thompson was denied the guidance and support of his attorney when he needed it most (i.e., when the state was preparing for a major attack on his credibility). This denial left Thompson nervous, confused, and may have contributed to his performance on cross-examination. We are not in a position to say with any certainty that a consultation with his attorney at this juncture would have made any difference. Had the attorney-client consultation been allowed, defense counsel could have advised, calmed, and reassured Thompson without violating the ethical rule against coaching witnesses. Because of the possible effect of this ruling on the perception of Thompson's credibility and the importance of his credibility to his theory of defense, we cannot say there is no reasonable possibility that the error did not affect the jury verdict. Thus, the error is harmful.

Accordingly, we disapprove the decision of the district court with directions that the case be remanded to the trial court for a new trial.

It is so ordered.

McDONALD, C.J., OVERTON, J. and ADKINS, J. (ret.), concur.

EHRLICH, J., concurs in result only with an opinion.

SHAW, J., concurs specially in result only with an opinion.

*1076 EHRLICH, Justice, concurring in result only.

I concur in result solely because of this Court's holding in Bova v. State, 410 So.2d 1343 (Fla. 1982) (Bova II). Except for Bova II, I would hold that the trial judge was correct in denying defense counsel's request to consult with his client during a brief recess while he was on the witness stand.

Cross-examination is so very critical in our adversary system. It can correctly be characterized as the crucible out of which our system expects the truth to flow. I think there is a delicate balance between a defendant's right to consult with his lawyer while he is on the witness stand, and the right of the state to proceed with its cross-examination of a defendant without the intercession of his counsel. I do not believe defendant had the right to consult with his counsel under the facts of this case, and it is my opinion that the trial judge acted properly. I agree with Justice Shaw that Bova II should be revisited.

It appears clear to me that the defendant wanted to talk to his lawyer not about strategy and tactics of the case in general, but specifically about the facts relating to his cross-examination.

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Bluebook (online)
507 So. 2d 1074, 12 Fla. L. Weekly 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-state-fla-1987.