Aundra JOHNSON, Petitioner, v. STATE of Florida, Respondent, 53 So. 3d 1003

PER CURIAM. Aundra Johnson seeks review of the decision of the Third District Court of Appeal in Johnson v. State, 10 So.3d 680 (Fla.3d DCA 2009), on the basis that it expressly and directly conflicts with decisions of the Fourth District Court of Appeal in Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987); Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987); and Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993). The issue before this Court is whether it is per se reversible error when a judge erroneously instructs a jury prior to deliberations that it cannot have any testimony read back.

We hold that the error, if preserved, is per se reversible because it is impossible to determine the effect of the erroneous instruction on the jury without engaging in speculation, and thus a reviewing court is unable to conduct a harmless error analysis. Accordingly, we quash the Third District’s decision in Johnson and approve of the Fourth District’s decisions in Biscardi, Huhn, and Rigdon. FACTS Aundra Johnson was tried on charges of burglary and fleeing a police officer.

At trial, prior to jury deliberation, the judge read a set of standard jury instructions that were compiled with the approval of the State and the defense. The judge then added the following instruction not previously mentioned at the charge conference: Now let me caution you regarding the communication, if you want to ask a question regarding the facts, let me caution you that we don’t have I [sic] simultaneous transcript of these proceedings so we don’t have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

The judge went on to instruct the jury: “If you have a question regarding the law, I will tell you that you have all the laws that pertains to this ease in those instructions, there are no other laws.” Johnson specifically objected' to the judge’s instruction that the jury could not have testimony read back, stating that the jury has a right to have testimony read back. The judge overruled the objection, and prior to the jury retiring to deliberate, the judge once again instructed the jury: Ladies and gentlemen and, again, if you have a question regarding the facts, I cannot reopen the facts.

I cannot explain the evidence to you. The normal answer that I give you is that you must rely upon your own recollection of the evidence. If you have differences of opinion you must hash them out amongst yourselves. After deliberations without any questions being asked by the jury or any requests for the read-back of testimony, the jury convicted Johnson of the crime of fleeing a police officer, but acquitted him of the burglary charge. On appeal to the Third District, Johnson claimed that the trial judge erred in instructing the jury that the law did not permit him to read back testimony.

The Third District agreed and concluded that the trial court erred by discouraging the jury from requesting any read-back of testimony, which the State conceded. In particular, the Third District stated: “[W]hile the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a read-back is prohibited.” Johnson, 10 So.3d at 681 (quoting Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). However, the Third District held that the error was harmless based upon its conclusion that the evidence against Johnson was “overwhelming.” Id.

Consequently, the Third District affirmed Johnson’s conviction and sentence. Id. at 682. Judge Cope dissented to the use of a harmless error test and alternatively disagreed that the error could be deemed harmless in this case: We should order a new trial. Defense counsel timely and correctly objected to the trial court’s instruction. Neither the State nor the majority opinion has cited any authority for the proposition that this type of error is subject to harmless error analysis.

Assuming arguendo that such an analysis could be applied, it is inappropriate here, where the jury had enough reasonable doubt about the State’s case to acquit the defendant on a number of charges. Id. The Third District’s holding that the error was harmless conflicts with the Fourth District’s decisions in Biscardi, Huhn, and Rigdon, all cases in which the Fourth District applied the per se reversible error rule to similar misleading jury instructions.

ANALYSIS The issue before this Court is whether a trial court’s erroneous instruction that the jury is not permitted to request read-backs of testimony is per se reversible or whether a reviewing court can determine that the error was harmless. To resolve the issue, we first explain why the trial court’s instruction was erroneous. Next, we discuss the harmless error test and per se reversible error. We then discuss the situations in which Florida courts apply the per se reversible error rule and review the reasoning of the Fourth District cases that are in conflict with the decision on review in this case.

We conclude that when a judge erroneously instructs a jury that it may not request to have testimony read back, a reviewing court is unable to conduct a harmless error analysis because it is impossible to determine the effect of the erroneous instruction on the jury. The reviewing court cannot determine what testimony the jurors might have requested to have read back, and thus it is impossible to determine the effect of the error on the jury without engaging in speculation. Accordingly, we must hold that such error is per se reversible.

It is undisputed that it is error for a judge to instruct a jury, prior to deliberations, that it cannot have any testimony or instruction read back. Florida Rule of Criminal Procedure 3.410 states: 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.

Because the rule provides that juries may have testimony read back, it is clearly error for a trial judge to advise a jury otherwise. Johnson objected to the erroneous instruction, thereby preserving the error for review. When an error is preserved for appellate review by a proper objection, an appellate court applies either a harmless error test or a per se reversible error rule. Although a defendant is not entitled to a completely error-free trial, he or she has a constitutional right to a fair trial free of harmful error. See Goodwin v. State, 751 So.2d 537, 538-39, 541 (Fla.1999).

Thus, the role of the appellate courts is to ensure that criminal trials are free of harmful error, the presence of which would require reversal. The harmless error rule is “concerned with the due process right to a fair trial” and “preserves the accused’s constitutional right to a fair trial by requiring the state to show beyond a reasonable doubt that the specific [errors] did not contribute to the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135-36 (Fla.1986). The test for harmless error focuses on the effect of the error on the trier of fact.

Id. at 1139. “The question is whether there is a reasonable possibility that the error affected the verdict.” Id. The burden is on the State to prove beyond a reasonable doubt that the error did not contribute to the outcome. Id. 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.

Id.; see also Ventura, 29 So.3d at 1089-90; Cuervo v. State, 967 So.2d 155, 167 (Fla.2007); Cardenas v. State, 867 So.2d 384, 395 (Fla.2004); Williams, 863 So.2d at 1189-90. Thus, to apply the harmless error test, the reviewing court must be able to determine the effect of the error on the trier of fact. Like the harmless error test, the per se reversible error rule is concerned with the right to a fair trial.

DiGuilio, 491 So.2d at 1135. “The test of whether a given type of error can be properly categorized as per se reversible is the harmless error test itself.” Id. “If application of the test to the type of error involved will always result in a finding that the error is harmful, then it is proper to categorize the error as per se reversible.” Id.

This Court has also applied the per se reversible error rule to those cases where the appellate court is unable to conduct a harmless error analysis because it would have to engage in pure speculation in order to attempt to determine the potential effect of the error on the jury. These circumstances include when a trial judge “respond[s] to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request.” Ivory v.

State, 351 So.2d 26, 28 (Fla.1977); see also Bradley v. State, 513 So.2d 112, 113-14 (Fla.1987) (“[Bjoth the state and the defendant must have the opportunity to participate, regardless of the subject matter of the jury’s inquiry. Without this process, preserved in the record, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.” (emphasis omitted) (quoting Curtis v. State, 480 So.2d 1277, 1279 (Fla.1985))). This Court has more recently applied the per se reversible error rule when a bailiff has unsupervised communications with a jury. See State v.

Merricks, 831 So.2d 156, 161 (Fla.2002) (“To apply a harmless error analysis to such improper communications as the State proposes would ‘unnecessarily embroil trial counsel, trial judges and appellate courts in a search for evanescent harm, real or fancied.’ ”) (quoting Ivory, 351 So.2d at 28 (England, J., concurring)).

Per se reversible error also occurs when a sitting juror is substituted after deliberations begin because it is “nearly impossible to perform a harmless error analysis” since “any well-intentioned questioning of the jurors, original or alternate, in a good-faith attempt to provide those safeguards recognized under such an analysis is itself fraught with potential to contaminate the jury process.” Williams v. State, 792 So.2d 1207, 1210 (Fla.2001).

Another circumstance in which this Court has held that an error is per se reversible because the reviewing court cannot conduct a harmless error analysis is when a jury is not instructed on a lesser-included offense one step removed from the charged offense. In such a situation, the reviewing court cannot determine the effect of the error on the jury because the court cannot know whether the jury would have convicted the defendant of the next lesser included offense if the jury had been given the option.

As explained by this Court: “If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Pena v. State, 901 So.2d 781, 787 (Fla.2005) (citing State v. Abreau, 363 So.2d 1063 (Fla.1978)). To conduct a harmless error analysis in that situation would be to engage in pure speculation.

Similar to the reasoning in these cases, the Fourth District concluded in Biscardi, Huhn, and Rigdon that when a trial judge indicates in his or her instruction to the jury that it will not be allowed to have testimony read back, reversible error occurs because it conveys to the jury that asking for rereading of testimony is prohibited. Thus, it is impossible to determine what testimony the jurors might have requested to have read back.

In Biscardi, the Fourth District held that a trial judge committed reversible error by telling the jury in the course of providing instructions that “ ‘there is really no provision’ for reinstruction or to have testimony read back.” 511 So.2d at 580. The Fourth District reasoned: [T]he judge’s words may reasonably have conveyed to jurors that to ask for clarification of instructions or rereading of testimony would be futile. As a result they may have reacted as they did because they misapprehended the law or had a distorted recollection of some of the testimony. Id. at 581.

In response to the State’s argument that prejudice must be shown, the Fourth District disagreed, stating, “Obviously, without going into the jurors’ heads or their communication with each other appellant cannot demonstrate prejudice.” Id. In Huhn, which was issued on the same day as Biscardi, the Fourth District held that the trial judge committed harmful error by indicating to the jury during instruction that it could not have instructions repeated or testimony reread. Huhn, 511 So.2d at 591.

Specifically, the trial judge stated: Also, there is really no provision for me to either reinstruct you after I instruct you or certainly to have any testimony read back or certainly to call any witnesses back. You are going to have to remember the testimony and the instructions on the law as best you can and probably the next time we hear from you will be when that buzzer in there rings and we all jump about a foot up in the air and then, you have a verdict. Id.

The Fourth District reasoned that these remarks led at least some of the jurors to understand that they were prohibited from asking for further instruction or for a read-back. Id. It concluded: “[Pjerhaps jurors would have ... sought to have certain testimony read to them if they had thought it possible. In our view, the error was harmful.” Id. In Rigdon, the Fourth District again stated that it was reversible error “for the trial court to instruct the jury that any request to have testimony read back would be refused.” 621 So.2d at 479.

It reasoned: [Wjhile the instruction given contains indications that there remained a possibility of having testimony read back, it nevertheless resembles the instruction condemned in [Biscardi and Huhn ] because the trial judge’s comments may reasonably have conveyed to the jurors that to ask for rereading of testimony would be futile or was prohibited. This was reversible error. Id. at 480. We agree with the Fourth District’s approach.

We conclude that when a judge preemptively and erroneously instructs a jury that it cannot have any testimony read back, a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury- A court attempting to conduct a harmless error analysis cannot know what testimony a jury would have requested to have read back or even whether a jury would have asked for a read-back at all.

Therefore, a reviewing court cannot determine whether a jury was confused or needed clarification about the facts of the case, and it is impossible to discern whether the defendant was prejudiced by the error. An appellate court would be required to engage in pure speculation because if the jury followed the erroneous instruction, the jury would be misled to believe that it was not permitted to request read-backs of testimony.

Because a harmless error analysis cannot be conducted when a judge preemptively instructs a jury that it cannot have any testimony read back, we hold that such error is per se reversible error. In this case, the trial court preemptively instructed the jury as follows: [I]f you want to ask a question regarding the facts, let me caution you that we don’t have I [sic] simultaneous transcript of these proceedings so we don’t have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

This may have misled the jury to erroneously believe that it could not request read-backs of testimony. During deliberations, the jury did not ask questions or request read-backs of testimony. Because of the trial court’s erroneous instructions in this case, it is impossible to determine whether the jury would have requested a read-back of testimony and thus impossible to determine whether or how the defendant may have been prejudiced by the erroneous instruction. The United States Circuit Court of Appeals for the Second Circuit has applied a per se rule for the same reasons we do here. In United States v.

Criollo, 962 F.2d 241 (2d Cir.1992), the trial lasted only two days and involved few witnesses. Nevertheless, the Second Circuit reasoned: We have no way of determining whether the jury wanted to request a read-back, but was chilled from doing so by the court’s prohibition against read-backs stated in the midst of defense counsel’s summation.

Since this ease was so short and involved only a few witnesses, we might well conjecture that any request for a read-back would not be the result of a confused jury attempting to sort through reams of evidence, but rather such a request could indicate that the jury had a genuine inability to resolve serious questions of fact. Id. at 244; see also United States v. White, 23 F.3d 404, 1994 WL 177280, at *6 (4th Cir. May 11, 1994) (unpublished) (Phillips, J., specially concurring) (“[Tjhere’s much to be said for ... declaring [the error] not subject to harmless error excuse — prejudicial per se error.

The Second Circuit recently has done just that in United States v. Criollo, 962 F.2d 241, 244 (2d Cir.1992), for the very good reason that principled harmless error analysis is impossible, there being no way, given the prohibition, ever to know whether a jury may have felt the need for a clarification that could have avoided a prejudice now forever hidden.”). Justice Polston’s dissent relies on State v. Schopp, 653 So.2d 1016 (Fla.1995), and Galindez v.

State, 955 So.2d 517 (Fla.2007), cases in which this Court applied a harmless error analysis to situations where a trial court failed to hold a Richardson hearing and where an Apprendi error occurred, respectively. However, the rationales for applying a harmless error analysis to those errors are not applicable here.

In Sehopp, we receded from the rule that a trial court’s failure to hold a Richardson hearing concerning a discovery violation is per se reversible error because there we determined it was clear from the record that the violation did not “materially hinder[ ] the defendant’s trial preparation or strategy” and thus was harmless. Schopp, 653 So.2d at 1020. However, here, unless the jurors request a read-back despite the preemptive ban, the reviewing court cannot determine from the record whether the jurors would have asked for a read-back had they been given the opportunity.

Such a determination would be speculation, even if the trial was short or there were few witnesses who all gave consistent testimony. Indeed, in such a situation, a jury’s request for a read-back may indicate that the jury was particularly confused and unable to resolve issues of fact. This is distinguishable from discovery violations, where the reviewing court will sometimes have enough information from the record, even absent an adequate Richardson inquiry, to make a harmless error determination. The issue in this case is likewise distinguishable from Apprendi errors.

As with discovery violations, Apprendi errors are evaluated for harmlessness based on information contained in the record. Galindez, 955 So.2d at 523 (evaluating whether Ap-prendi error was harmless based on “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found” the fact). This is in contrast to the error at issue here, where any harmless error determination would be based on speculation.

CONCLUSION For the reasons stated above, we hold that it is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. Accordingly, we quash the Third District’s decision in Johnson and remand for proceedings consistent with this opinion. We also approve of the Fourth District’s decisions in Biscardi, Huhn, and Rigdon. It is so ordered. PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur. CANADY, C.

J., concurs in part and dissents in part with an opinion, in which POLSTON and LABARGA, JJ., concur. POLSTON, J., concurs in part and dissents in part with an opinion, in which LABARGA, J., concurs. . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. . We recognize that this instruction was not objected to and thus any error is not preserved. Therefore, we do not discuss this instruction further. . The Third District actually used an incorrect harmless error test by focusing only on the “overwhelming evidence.” As recently emphasized by this Court in Ventura v.

State, 29 So.3d 1086, 1089 (Fla.2010), an "overwhelming evidence” test is not the correct test for determining whether an error was harmless. See also Williams v. State, 863 So.2d 1189, 1189-90 (Fla.2003). . We note, however, that if a jury requests a specific read-back, a trial judge has broad discretion in deciding whether to grant the jury’s request. State v. Riechmann, 777 So.2d 342, 365 (Fla.2000). Refusing a jury's specific request for a read-back is distinguishable from the preemptive ban at issue here.

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. Thus, if a trial judge refuses a jury's request for a specific read-back of testimony, the refusal is reviewed for abuse of discretion and is subject to a harmless error analysis, provided the issue is preserved. See Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992). . Both per se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v.

State, 967 So.2d 444, 446-47 (Fla. 4th DCA 2007) ("There is a difference between ‘per se reversible error’ and 'fundamental error.’ The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved by a timely objection in the trial court. A fundamental error is an exception to the contemporaneous objection rule.... A per se reversible error means that a reviewing court does not undertake harmless error analysis.... A per se reversible error is not necessarily a fundamental one.” (citations omitted)).

This is in contrast to fundamental error, which applies when an issue is not preserved. Cox v. State, 966 So.2d 337, 347 (Fla.2007) ("[A] claim of error that is not preserved by an objection during trial is procedurally barred on appeal unless it constitutes fundamental error.”). . Richardson v. State, 246 So.2d 771 (Fla.1971). . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).