Frasilus v. State, ___ So. 3d ___, 35 Fla. L. Weekly D2597 (Fla. 5th DCA 9/10/10)
The trial court was not required to inform the jury of its right to request a read-back of testimony when the jury “asked for an answer to a fact question” after it retired to deliberate. The trial court proposed to instruct the jury, “You will have to use your best recollection of the evidence. You have received all the evidence we can give you. The [trial] court asked counsel if that was acceptable, and both [the defendant] and the State agreed.” After the defendant was convicted of first degree murder, however, he contended that “the trial court committed fundamental error by failing to inform the jury that it was entitled to a read-back of portions of the testimony.” “We do not think it is either necessary or desirable to impose a requirement on the trial court to inform the 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. Nor would such a requirement take into account that a defendant’s failure to request a read-back in such a circumstance might well be strategic. Because 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,” thus, constituting fundamental error.