¶1concurring in part and dissenting in part.
¶2I agree with Justice Polston that the error at issue here does not fall within the category of per se reversible error. I therefore disagree with the majority’s decision that requires a new trial. Instead, I would reverse and remand to the district court for a determination of whether the error was harmful.
¶3In State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986), we recognized that a rule of per se reversible error is a “draconian measure.” Rejecting the view that the constitutional violation at issue in DiGuiliorequired such a rule of per se reversal, we unequivocally held that “[p]er se reversible errors are limited to those errors which are ‘so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Id. at 1135 (emphasis added) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). We further acknowledged the high cost of improperly categorizing a type of error as “per se reversible”: “[I]f an error which is not always harmful is improperly categorized as per se reversible, the court will erroneously reverse an indeterminate number of convictions where the error was harmless.” Id.
¶4As indicated by our reliance on Chapman, our understanding of per se reversible error in DiGuiliowas rooted in the federal law concerning constitutional error. The United States Supreme Court has repeatedly recognized that even constitutional errors are ordinarily subject to harmless-error analysis. Only constitutional errors that “necessarily render a trial fundamentally unfair” can be held to “require reversal without regard to the evidence in the particular case.” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
¶5“Harmless-error analysis ... presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Id. at 578, 106 S.Ct. 3101. Accordingly, the denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), or the presence of a biased adjudicator, see Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), ai’e “errors that could never be *1012harmless.” Rose, 478 U.S. at 578 n. 6, 106 S.Ct. 3101. Per se reversal is an appropriate response to the absence of the “basic protections” without which a “criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Id. at 577-78, 106 S.Ct. 3101 (citation omitted).
¶6But such errors that require reversal automatically “are the exception and not the rule.” Id. at 578, 106 S.Ct. 3101. Indeed, the Supreme Court has articulated a presumption against per se reversal: “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Id. at 579, 106 S.Ct. 3101.
¶7The Supreme Court has identified errors “which defy analysis by ‘harmless-error standards’ ” as errors which result in “structural defects in the constitution of the trial mechanism” — “structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (emphasis added). The unlawful exclusion of members of the defendant’s race from a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), the denial of the right to self-representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and the denial of the right to public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), are examples of structural defects not subject to harmless-error analysis. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246.
¶8Given the nature of such structural error, it is not surprising that the Supreme Court has “found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ ” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). The Supreme Court has repeatedly rejected claims that various errors were not subject to harmless-error analysis. See, e.g., Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding that failure to submit a sentencing factor to the jury was not a structural error and thus was subject to harmless-error review); Neder, 527 U.S. at 10, 119 S.Ct. 1827 (holding that trial court’s error in omitting an element of a crime from the jury instructions was subject to harmless-error analysis); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (holding that improper denial of a defendant’s right to impeach a witness under the Confrontation Clause was subject to harmless-error analysis); United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (holding that prosecutor’s improper comments about defense’s failure to present evidence were subject to harmless-error analysis).
¶9Here, the trial court’s error did not create a “structural defeet[] in the constitution of the trial mechanism.” Fulminante, 499 U.S. at 309, 111 S.Ct. 1246. It is totally implausible to suggest that a defendant has a right to have testimony read back to the jury which is “basic to a fair trial,” DiGuilio, 491 So.2d at 1135, or that the possible failure to read back testimony that may have arisen from the trial court’s erroneous instruction “necessarily rendered] [the] trial fundamentally unfair,” Rose, 478 U.S. at 577, 106 S.Ct. 3101. As the majority acknowledges, a trial court may exercise its discretion to deny a request to have testimony read back to the *1013jury. Majority op. at 1006 n. 4 (citing State v. Riechmann, 777 So.2d 342, 365 (Fla.2000)). Since whether to have testimony read back to the jury is a discretionary matter, it cannot be the case that the erroneous instruction resulted in the denial of a “basic protection[ ]” necessary for a criminal trial to “reliably serve its function as a vehicle for determination of guilt or innocence.” Rose, 478 U.S. at 577-78, 106 S.Ct. 3101.
¶10There is no principled basis for distinguishing the error here from other jury instruction errors which are subjected to harmless-error analysis. See, e.g., Hunter v. State, 8 So.3d 1052, 1071 (Fla.2008) (applying harmless-error analysis to trial court’s use of the term “and/or” in jury instructions), cert, denied, — U.S. -, 129 S.Ct. 2005, 173 L.Ed.2d 1101 (2009); Cardenas v. State, 861 So.2d 384, 393 (Fla.2004) (applying harmless-error analysis to trial court’s error in instructing the jury on the presumption of impairment in a driving with an unlawful blood — or breath — alcohol level case); Lara v. State, 699 So.2d 616, 618 (Fla.1997) (applying harmless-error analysis where the trial court gave an unconstitutional jury instruction regarding an aggravating factor).
¶11The trial court’s error therefore should be evaluated in the full context of the trial to determine if it was harmless.
¶12POLSTON and LABARGA, JJ., concur.
¶13concurring in part and dissenting in part.
¶14I disagree with the majority’s conclusion that it is per se reversible error when a trial judge instructs a jury, prior to deliberations, that it cannot have testimony read back. Although I agree that the instruction is in error, I believe that in some cases the error can be harmless. Therefore, I would quash the Third District’s decision and remand for a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, I respectfully concur in part and dissent in part.
¶15The majority holds that the read-back error here is per se reversible “because it is impossible to determine the effect of the erroneous instruction on the jury without engaging in speculation.” Majority op. at 1005. I disagree. In State v. Schopp, 653 So.2d 1016 (Fla.1995), this Court receded from a similar per se reversible error ruling based upon presumed harm from the possibility of uncertainty. Specifically, in Schopp, this Court receded from its holding in Smith v. State, 500 So.2d 125 (Fla.1986), wherein this Court held that the failure to conduct a Richardson
¶16In Schopp, the State sought to admit the testimony of a police officer who was not included on the State’s original witness list but was added to an amended witness list shortly before trial. Id.The trial court overruled defense counsel’s objection and concluded that a Richardson hearing was not required, in part because of Schopp’s request for a speedy trial. Id.The Fourth District Court of Appeal reversed based on this Court’s opinion in Smith, although it was “ ‘absolutely convinced that the admis*1014sion of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless,’ under the harmless error analysis set out in [DiGuilio ].” Id.(quoting Schopp v. State, 641 So.2d 141, 142 (Fla. 4th DCA 1994)). The Fourth District was convinced the error was harmless because “1) the undisclosed witness presented testimony that was known to the defendant, was cumulative to other testimony, and concerned facts openly admitted by the defendant; 2) defense counsel admitted during opening statement that Schopp committed the offenses of which he was ultimately convicted; and 3) Schopp was acquitted of the charged offenses and thus ‘won’ his case.” Id.
¶17This Court concluded that the circumstances in Schopp “demonstrate[d] that there are cases in which a reviewing court can determine that a discovery violation is harmless beyond a reasonable doubt, absent an adequate Richardson inquiry” because in that case it was clear “beyond a reasonable doubt that neither the discovery violation nor the trial court’s failure to inquire into whether corrective sanctions were warranted materially hindered the defendant’s trial preparation or strategy.” Id. at 1019-20.
¶18This Court reiterated that “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. at 1020 (citing DiGuilio, 491 So.2d at 1134— 35) (emphasis added). We then explained that “we have never held that the failure to conduct a Richardson hearing always results in an unfair trial. Rather, we established the per se reversal rule based on our assumption that ‘no appellate court can be certain that errors of this type are harmless.’ ” Id.(quoting Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977)). But Schopp presented a case where a review of the record revealed that this type of error could be found harmless.
¶19As in Smith, the majority has held here that the trial court’s erroneous instruction on read-backs constitutes per se reversible error based upon uncertainty in determining whether, in some cases, this procedural error could be harmful — the same reasoning that was proved to be unworkable in Schopp. In Schopp, however, the district court performed a thorough review of the record and described the circumstances present in that case. Here, the Third District’s opinion does not discuss its review of the record but simply states that the evidence against Johnson was “overwhelming.” Johnson v. State, 10 So.3d 680, 681 (Fla. 3d DCA 2009). But finding that the evidence is overwhelming is not the test for harmless error in Florida.
¶20In Florida, an error is harmless if there is no reasonable possibility that the error affected the verdict. DiGuilio, 491 So.2d at 1139. As this Court has explained,
[Hjarmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence....
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The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the eiror contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict....
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... The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The 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.
¶21Ventura v. State, 29 So.3d 1086, 1089-90 (Fla.2010) (quoting DiGuilio, 491 So.2d at 1138-39). ' I believe this Court should refrain from rejecting a harmless error standard in favor of creating this per se reversible error rule when a harmless error analysis under DiGuiliowas not performed or reviewed by this Court.
¶22In Galindez v. State, 955 So.2d 517, 518 (Fla.2007), this Court held that violations of Apprendi and Blakely are subject to a harmless error analysis.
¶23In Galindez, this Court applied a harmless error analysis even though the fact that led to the enhanced sentence had never been submitted to the jury. Although we did not know what the jury would have actually determined or what questions the jury would have asked if the fact enhancing the sentence had been submitted to the jury, we held that a harmless error analysis was appropriate. Similarly, here we do not know what the jury would have done absent the erroneous read-back instruction. We do not know what, if any, questions the jury would have had regarding the facts submitted to it for its consideration. And just as we perform a harmless error analysis when faced with the uncertainty surrounding an Apprendi violation, we should perform a harmless error analysis when faced with an erroneous read-back instruction.
¶24*1016I believe that, just as with violations of Apprendi, there are circumstances under which an erroneous read-back instruction can be harmless. At least one federal court has concluded that the specific read-back error at issue here can be harmless. In United States v. White, 23 F.3d 404, 1994 WL 177280 (4th Cir.1994) (unpublished), the Fourth Circuit concluded that an erroneous read-back instruction was harmless based upon its observations that the appellant’s trial lasted just one-and-one-half days, and he was the only defendant; the announcement prohibiting read-backs was made after all the evidence was presented; four incriminating witnesses told consistent stories; the defense was not based on fine distinctions; and the appellant “point[ed] to nothing, either in general or in particular, that might have generated confusion among the jurors.” White, 1994 WL 177280 at *3. The Fourth Circuit explained:
Of course we have no way of knowing whether the jury in White’s trial would have asked for a read-back of any testimony, just as a reviewing court can never know with absolute certainty what weight a jury put on an erroneously admitted piece of evidence. It is difficult, and no doubt sometimes nigh impossible, to gauge the effect on a jury’s verdict of, say, a coerced confession, but we are bound to do so when presented with such a case. The difficulty of applying the harmless error test in some (or even most) cases, however, is an inadequate basis for declaring a per se rule for all cases.
¶26As in White, a proper review of the record here may have revealed the error was harmless, that is, that there was no reasonable possibility that the error affected the verdict. For example, it is possible that several witnesses gave consistent testimony, or that Johnson or his counsel admitted that he fled from a police officer, or that all the facts in the case were undisputed, or any number of other possible scenarios which could have led the Third District to conclude beyond a reasonable doubt that the read-back error did not contribute to the verdict.
¶27On the other hand, a proper analysis could have led to the conclusion that the error was harmful. Maybe a review would have revealed the presence of conflicting testimony, or an exceptionally lengthy jury deliberation, or some questionable admission of evidence, or any number of other circumstances which could have led the Third District to conclude that the error was harmful. But even finding the error harmful in this case does not mean that the error could not be found harmless in another case. As in Smith, the majority is assuming that “no appellate court can be certain that errors of this type are harmless.” Schopp, 653 So.2d at 1020 (quoting Cumbie, 345 So.2d at 1062). But “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id.(emphasis added) (citing DiGuilio, 491 So.2d at 1134-35). That this type of error is always harmful has not been proven here. Therefore, this case does not present a sufficient basis for creating a per se reversible rule, especially considering that this Court has not been apprised of all the facts. Instead, in my view, this case should be reversed and remanded so that the Third District can perform a harmless error analysis under the standards adopted by this Court in DiGuilio.
¶28Accordingly, I respectfully concur in part and dissent in part.
¶29LABARGA, J., concurs.
¶30. Richardson v. State, 246 So.2d 771 (Fla.1971).
¶31. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).