Alfonso v. State, 82-738
| Decision Date | 13 December 1983 |
| Docket Number | No. 82-738,82-738 |
| Citation | 443 So.2d 176 |
| Parties | Raymundo ALFONSO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Carol R. Gersten, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
Before HENDRY, HUBBART and JORGENSON, JJ.
Raymundo Alfonso appeals from his conviction of burglary of a structure and carrying a concealed firearm following the denial of his motions for a mistrial. We affirm.
On the second day of trial, an incident occurred which gave rise to appellant's motions for a mistrial, and thus, to this appeal. On that day, Officer Beard, the City of Miami police officer who initially apprehended appellant, was seen talking with two of the jurors in the case. 1 The trial court was notified and appellant immediately moved for a mistrial. The trial court denied the motion and proceeded to question the jurors about the incident. One juror, Mr. Dunlevy, was dismissed when it was learned that Officer Beard had commented on the case to him. Mr. Shoaf was allowed to remain on the jury because the only conversation he had with Officer Beard concerned fishing and boats. The other members of the jury were also questioned. They all stated that they heard the conversation and that it involved fishing. No one, other than Mr. Dunlevy, heard Officer Beard comment on the case. Appellant again moved for a mistrial when it was learned that all of the jurors heard the conversation about fishing, arguing that the members would be more sympathetic to the police officer (and thus prejudiced against the appellant) because of it. The trial court again denied the motion and proceeded to question each juror individually as to his or her ability to render a fair and impartial judgment in the case. All of the jurors stated that the conversation would have no effect on their deliberations or verdict. Thus satisfied, the trial court seated the alternate juror in place of Mr. Dunlevy and the trial resumed.
The procedure to be followed when there has been an impermissible contact with the jury or when the jury may have had access to potentially prejudicial material (such as a television or newspaper report) regarding the case is set out in United States v. Herring, 568 F.2d 1099 (5th Cir.1978). The issue which must first be resolved in such an instance is whether the material or contact raises serious questions of possible prejudice to the litigants. If so, the trial court must determine whether the material has actually reached the jury or whether members of the jury have knowledge of the impermissible contact. If, in the court's view, there are serious questions of possible prejudice, the court must question the members of the jury on their ability to render an impartial verdict. Id. at 1104-1105. This procedure is now followed by the federal courts in the Fifth Circuit Court of Appeals, United States v. Pecora, 693 F.2d 421 (5th Cir.1982); United States v. Phillips, 664 F.2d 971, 997-1000 (5th Cir.1981); United States v. Forrest, 620 F.2d 446 (5th Cir.1980), appeal after remand, 649 F.2d 355 (5th Cir.1981); Dorminey v. United States, 546 F.Supp. 702 (M.D.Ga.1982), and by our state courts. Jones v. State, 411 So.2d 165 (Fla.1982); Diaz v. State, 435 So.2d 911 (Fla. 4th DCA 1983); State v. Tresvant, 359 So.2d 524 (Fla. 3d DCA 1978).
While the conduct of the jury is the responsibility of the trial court and the court is allowed discretion in dealing with any problems that arise, Orosz v. State, 389 So.2d 1199 (Fla. 1st DCA 1980), due process and the sixth amendment to the United States Constitution require that the verdict in a criminal trial be rendered by a fair and impartial jury. The court in Herring set out a procedure whereby all of these concerns are satisfied. Since the...
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Marshall v. State
...affected the verdict," Powell v. Allstate Ins., 652 So.2d 354, 357 (Fla.1995), and a juror interview is not required. Cf. Alfonso v. State, 443 So.2d at 177 ("If ... there are serious questions of possible prejudice, the court must question the members of the jury on the ability to render a......
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Washington v. State
...jurors, the trial court determined that they had not read newspaper articles in violation of a court order); Alfonso v. State, 443 So.2d 176 (Fla. 3d DCA 1983) (the trial judge questioned a juror and determined that he did not have improper contact with a police officer during the course of......
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Scott v. State, 92-1537
...1199 (Fla. 1st DCA 1980). The defendant was in no way denied his constitutional right to a fair and impartial trial. Alfonso v. State, 443 So.2d 176 (Fla. 3d DCA 1983). Next, at trial, a contemporaneous objection and request for curative instruction are required to place the court on notice......
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Dolan v. State
...to the trial court's ruling regarding the two television programs which aired during the course of the trial. See Alfonso v. State, 443 So.2d 176, 177 (Fla. 3d DCA 1983). The programs did not relate to the instant case, no request was made to poll the jury, and no showing was made which wou......