TAIDE WISTON ASENCIO, JR. v. STATE OF FLORIDA , 244 So. 3d 294 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TAIDE WISTON ASENCIO, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-1686
[April 4, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502014CF004333A.
Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Appellant Taide Asencio appeals his conviction for shooting into an
occupied vehicle. He raises three issues on appeal, although only two of
them merit discussion. First, whether the trial court erred by admitting a
jail call made by appellant while he was in jail awaiting trial. Second,
whether the trial court erred by allowing the alternate jurors to enter the
jury room at the end of the trial, but before deliberations. We affirm on
both of these issues. On the third issue of whether the jury’s verdict was
inconsistent, we affirm without comment.
Appellant was arrested and charged with three counts of attempted
murder with a firearm and one count of shooting into an occupied vehicle.
The police investigation revealed he approached the back of a truck
stopped outside a convenience store, and shot at the occupants seated
inside. At trial, the State sought to admit into evidence the recording of a
jail call made by appellant while in custody. To lay the foundation for
admitting the call, the State called a detective to testify that she spoke to
appellant for approximately thirty minutes, and was familiar with
appellant’s voice because of his distinctive “southern drawl.” However,
when asked whose voice she recognized in the recording, she said the
name “Sanchez,” instead of appellant’s name. 1 The prosecutor then
abruptly ended direct examination of the detective without attempting to
admit the recording into evidence.
Later in the trial, a records custodian in the telecommunications
department of the Palm Beach County Sheriff’s Office was called to testify
on behalf of the State. She confirmed that, as the custodian of records,
she keeps and maintains the records of jail calls made by inmates at the
Palm Beach County Jail and that those records are kept in the ordinary
course of business. The records custodian testified that the recordings
were recorded and maintained at or near the time the calls were made,
and stored on a secure server only accessible with a username and
password.
She then explained to the jury how the jail’s call system works. Once
an inmate picks up the telephone, a recording plays and says the call may
be recorded or monitored. The recording asks the inmate to manually
enter his or her booking number plus PIN number into the phone’s keypad.
The system also requires inmates to verify their identity using a system
that employs voice recognition software to match the inmate’s voice with
his or her name as recorded during the booking process. If this three-
tiered verification process is successfully completed and the inmate dials
the phone number for the outgoing call, the parties may start speaking
once the call is accepted.
The records custodian also explained that she created a CD containing
over 100 calls made by appellant while he was in jail, and that the CD was
an accurate reflection of those calls. The State sought to admit one of the
jail calls on the CD into evidence. Defense counsel objected and argued
that the call was not properly authenticated. The trial court overruled the
objection, and admitted the recording into evidence. It reasoned that the
recording of the call was admissible because of the jail call system’s
verification process and the fact that earlier at trial the detective
recognized appellant’s voice and identified him as the speaker in the jail
call. Neither the prosecutor nor defense counsel informed the trial court
that the detective identified the speaker in the recorded jail call as
“Sanchez.”
The jail call was played for the jury. In the call, one of the speakers
admitted to the shooting, and stated, “They got me on camera. . . . I hit
1 Sanchez was the name of one of the victims in this case.
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him in the head one time and four in the back. But that mother fucker
didn’t die.”
After the jury was charged at the conclusion of trial, the trial court
addressed the alternate jurors, and allowed them to go back into the jury
room to say goodbye to the other jurors:
THE COURT: And so it is now incumbent upon me to identify
our two alternate jurors and to excuse them with my sincere
thanks. You do not know who they are. Our alternate jurors
in this case are [Hernandez] and [McCray]. Those are our two
alternates. Now, Ms. Hernandez and Ms. McCray, did you
leave personal items in the Jury room?
MS. MCCRAY: Yes.
THE COURT: Okay. You can go back – leave your personal
set of jury instructions and your personal notes on your
chairs. The rest of you can take your personal set of jury
instructions and your notes back into the jury room. Say
goodbye to Ms. Hernandez and Ms. McCray. And then they
will come right back on out and then I will excuse them with
my thanks. I want to wish the best of you the best of luck in
your deliberations. And Ms. Hernandez and Ms. McCray we
will see you right back out here in just a moment. You can go
back and get your personal items. Okay? And if you want to
exchange numbers with people that you have met you can
certainly do that in the back just for a moment. Okay? Great.
Come on out.
The jury exited the courtroom, and approximately two minutes later,
the alternate jurors came back to the courtroom. The court thanked them
for their service and officially discharged them. The jury ultimately
acquitted appellant on the three attempted murder counts, but found him
guilty of shooting into an occupied vehicle. This appeal followed.
Admissibility of the Jail Call
“The standard of review of a trial court’s evidentiary rulings is abuse of
discretion.” McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007).
“Authentication or identification of evidence is required as a condition
precedent to its admissibility. The requirements of this section are
satisfied by evidence sufficient to support a finding that the matter in
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question is what its proponent claims.” § 90.901, Fla. Stat. (2016). “[T]he
authentication should be made by the technician who operated the
recording device or a person with knowledge of the conversation that was
recorded.” Santana v. State, 191 So. 3d 946, 948 (Fla. 4th DCA 2016).
“[T]here is no specific list of requirements for authentication, and each
case must be determined on its own merits.” Vilsaint v. State, 127 So. 3d
647, 650 (Fla. 4th DCA 2013). The question for the trial court is not
whether the evidence is authentic, but whether evidence exists from which
the jury could reasonably conclude that it is authentic.
An audio recording may be authenticated by a witness who has some
“prior special familiarity” with the defendant’s voice, or by a witness that
has “special training in voice recognition.” Evans v. State, 177 So. 3d
1219, 1230 (Fla. 2015); see also Vilsaint, 127 So. 3d at 650 (holding that
a recording was sufficiently authenticated by a detective who purportedly
recognized the defendant’s voice on the recording because “the detective
spoke to appellant for approximately ten to fifteen minutes prior to
appellant being put in the cell”).
Alternatively, an audio recording may be authenticated by a records
custodian of the jail calls, even if that custodian is not personally familiar
with the defendant’s voice. In United States v. Harris, 338 F. App’x 892,
894 (11th Cir. 2009), defendant Harris argued that the State failed to
properly authenticate a jail call. The Eleventh Circuit disagreed:
Although no witness identified the voice as Harris’s, the
evidence showed that the recording was associated with
Harris’s jail identification number, which corresponded with
the unique I–PIN number assigned to Harris. Moreover, the
speaker identified himself as “Michael,” which is Harris’s first
name. The inmate speaker in the recording also makes
reference to the actual facts at the time of the motorcycle
accident that were within the Defendant Harris’s knowledge,
further corroborating that the Defendant is the speaker. As
such, the government met its burden of authentication by
providing sufficient evidence to make out a prima facie case
that the speaker in the recording is Michael Harris.
Id. at 895; see also State v. Norah, 131 So. 3d 172, 193 (La. Ct. App. 2013)
(admitting jail call with telecommunications supervisor of jail on witness
stand was proper because “the recordings were directly tied to the
defendants by their unique folder numbers”).
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Here, the trial court did not base its ruling regarding authenticity solely
on the assumption that the detective properly identified appellant on the
jail call. As in Harris, other sufficient indicia of reliability were present to
admit the recording into evidence. 338 F. App’x at 895.
The records custodian thoroughly explained how the system used the
inmate’s booking number, PIN number, and voice recognition software to
identify the individual placing the call. This three-tiered verification
process was used to identify appellant as the inmate who made the call
that was ultimately admitted into evidence and played for the jury.
Additionally, a speaker on the recorded jail call referenced facts of the
alleged crime that would be within the perpetrator’s knowledge.
When considered together, these facts provided sufficient evidence for
the recording’s authentication and admittance into evidence. Thus, we
conclude that the trial court did not abuse its discretion by admitting the
recording over appellant’s objection.
Alternate Jurors in the Jury Room
Appellant also argues that the trial court erred by allowing the alternate
jurors to briefly enter the jury room just prior to deliberations. We first
note that defense counsel’s failure to object when the judge allowed the
alternate jurors to briefly return to the jury room renders this issue
unpreserved for appellate review. See James v. State, 843 So. 2d 933, 936
(Fla. 4th DCA 2003) (holding that because the defendant failed to file a
motion for a new trial based on juror misconduct, the alleged error was
not preserved for appellate review).
If the trial court was informed when this occurred, remedial options
were available to prevent any real or perceived prejudice. If defense
counsel made a timely objection, he could have requested that the court
conduct an inquiry as to whether any of the jurors had improper contact
with the alternate jurors during that time. Defense counsel could have
also requested that the court give special instructions to the jurors
regarding the presence of the alternate jurors, or requested a mistrial.
Because appellant failed to object or move for a mistrial, this issue is
reviewed under the fundamental error standard. “Fundamental error is
error that ‘goes to the foundation of the case or the merits of the cause of
action.’” James v. State, 843 So. 2d 933, 937 (Fla. 4th DCA 2003) (quoting
J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). For the reasons set forth
below, we find that the trial court did not commit fundamental error by
allowing the alternate jurors to briefly return to the jury room.
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Florida Rule of Criminal Procedure 3.280(a) specifically provides that
“an alternate juror who does not replace a principal juror shall be
discharged at the same time the jury retires to consider its verdict.” We
have long held that jury deliberations must be impartial, private, and
secret. See Berry v. State, 298 So. 2d 491, 493 (Fla. 4th DCA 1974).
However, Florida courts have made an important distinction between what
constitutes jury deliberations as opposed to preliminary organizational
decisions. Cases discussing this distinction have generally held that trial
courts do not assume prejudice to the defendant whenever an alternate
juror briefly enters the jury room at the conclusion of trial.
For example, in Jacksonville Racing Ass’n, Inc. v. Harrison, 530 So. 2d
1001, 1004 (Fla. 1st DCA 1988), the trial court asked the jury to retire,
select a foreperson, and decide whether to begin deliberations that night
or the next day. The trial court, however, failed to discharge the alternate
juror, who remained present when the jury elected their foreperson. Id.On appeal, the First District affirmed the verdict, holding that “there
appears to be no reasonable possibility that the alternate participated in
any substantive deliberations, but was present during the foreperson’s
election and the decision on whether to begin deliberations.” Id.In this case, there is no indication that the jury was, or reasonably
could have been, compromised. Even though the alternate jurors were not
formally discharged before the jury retired to the jury room, they were not
physically present in the jury room during actual deliberations. Therefore,
we do not presume that the alternate jurors’ brief return to the jury room
constituted an external influence that amounted to prejudice. As the First
District explained in Morgan v. State, 212 So. 3d 1104, 1106 (Fla. 1st DCA
2017):
The jury was instructed that it must follow the law as set out
in the instructions. Those instructions included an
instruction that the “first thing” the jury should do was to
select a foreperson. It is well-established that “‘[a]bsent a
finding to the contrary, juries are presumed to follow the
instructions given them.’” Johnson v. State, 164 So. 3d 794,
797 (Fla. 1st DCA 2015) (quoting Carter v. Brown & Williamson
Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000)).
Id.Because the jury’s first point of business in this case would have been
to elect a foreperson, the alternate jurors’ presence in the jury room for
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two minutes certainly occurred before deliberations. Thus, we conclude
that the alternate jurors’ presence in the jury room was not so egregious
as to require a reversal of appellant’s conviction. See Jennings v. State,
512 So. 2d 169, 174 (Fla. 1987) (holding that no error occurred when the
alternate juror was allowed to momentarily retire to the jury room because
the record showed that “the alternate juror did not participate in the jury
deliberations”); see also Boblitt v. State, 175 So. 3d 891, 893 (Fla. 1st DCA
2015) (“Only where the jury is engaged in pre-deliberation organizational
activity may the alternate’s presence be deemed harmless error.”); Bouey
v. State, 762 So. 2d 537, 540 (Fla. 5th DCA 2000) (stating that “a
distinction should be made between instances where the alternate juror
was present while the jury actually deliberated on its verdict and instances
where the alternate juror was present only during the limited
organizational activity that the jurors typically engage in before actual
deliberations begin”).
We agree with appellant that, as a general rule, a defendant is entitled
to a mistrial if an alternate juror is present for any part of jury
deliberations. See Tello-Lugo v. State, 47 So. 3d 968, 969 (Fla. 2d DCA
2010). There is, however, no substitute for common sense. This rule has
no application where the defendant fails to object and the alternate jurors’
presence in the jury room is inadvertent and momentary, occurring before
the jury has commenced deliberations. We therefore reject appellant’s
contention that jury deliberations effectively begin at the moment in time
when the jury retires from the courtroom, and that any incidental or brief
contact between jurors and alternate jurors immediately after leaving the
courtroom following the jury charge prejudicially contaminates the entire
deliberative process.
In sum, the trial court did not err by allowing the alternate jurors to
briefly enter the jury room before the jury effectively began deliberations.
Because appellant has not shown that the alternate jurors’ authorized
presence in the jury room was anything other than (at worst) a brief
intrusion, he is not entitled to a new trial.
Affirmed.
WARNER and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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