Blackman v. State

• Decision Date: 18 May 2022
• Docket Number: 3D18-1875
• Parties: Douglas BLACKMAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

339 So.3d 1050

Douglas BLACKMAN, Appellant,

v.The STATE of Florida, Appellee.

No. 3D18-1875

District Court of Appeal of Florida, Third District.

Opinion filed May 18, 2022

The Law Offices of Grey and Mourin, P.A., and Jason Grey and Lana Cucchiella, for appellant.

Ashley Moody, Tallahassee, Attorney General, and Brian H. Zack, Former Assistant Attorney General, and Sonia Perez, Assistant Attorney General, for appellee.

Before LINDSEY, HENDON, and BOKOR, JJ.

LINDSEY, J.

Appellant Douglas Blackman (Defendant below) appeals from a conviction and sentence for second-degree murder while in possession of a firearm. Blackman raises four main issues on appeal, but we write solely to address the alleged errors related to what is commonly referred to as an Allen charge.¹ Based on the totality of the circumstances, we agree with the trial court that no Allen charge was necessary because the jury did not express deadlock. We therefore affirm.²

I. BACKGROUND

Blackman was charged and tried for the second-degree murder of Jerrod Rolle. The trial commenced on Wednesday, June 27, 2018, and ended on Friday, June 29, 2018. Jury deliberations began on Friday afternoon at 2:52 p.m. Shortly after 5:00 p.m., the jury asked to rehear testimony from one of the witnesses. As the audio recording was being queued, the jury sent a note that read: "if we have not made a decision, we will leave by 7:30." The audio recording was then played for the jury, and the jurors resumed deliberations at around 6:00 p.m. At 6:47 p.m., the jury returned a unanimous guilty verdict of second-degree murder.

The Defense asked the jury to be polled. The first five jurors assented to the verdict, but Juror Dowell became distressed and began to cry when she was asked if she agreed:

CLERK: [Juror] Dowell

DUROR DOWELL: Umm–

THE COURT: Ms. Dowell, I can appreciate the depth of emotion. I don't want to make any presumptions about what it means. Are you able to answer the question with either a yes or no?

JUROR FLACK: She doesn't feel like she can answer.

At sidebar, defense counsel informed the court that Juror Flack had her arm around Juror Dowell and was whispering to her. The court responded: "[f]air enough. She's making comments; she has her arm around her, for the record, and she's comforting her." The following exchange then took place between the court and Juror Flack:

THE COURT: So, Ms. Flack? I understand and have no problem with the fact that you're comforting Ms. Dowell. On the other hand, we don't know what you're saying to her. It could be a lot of different things at this point.

JUROR FLACK: I wasn't saying anything.

THE COURT: Okay. I couldn't be sure if you were saying anything because the back of your head was to me—

JUROR FLACK: Right, right.

THE COURT: —and you were looking toward her face. Okay.

JUROR FLACK: She feels she can't answer.

The court then told Juror Dowell: "we're kind of at an impasse. I need a yes or — if it's your verdict or it's not your verdict." Juror Dowell responded: "[i]t's not my verdict."

The jurors were sent back to the jury room, and the court discussed with the parties how best to proceed. The State asked the court to instruct the jury to continue deliberations. The Defense argued the jury could not continue deliberations because the jury form had been signed, and moved for a mistrial arguing it was coercive for Juror Dowell to go back into the jury room in the state she was in. In response, the State argued that Juror Dowell never said anything about feeling coerced or pressured and that "[t]his is rampant speculation." The court ultimately denied the motion for mistrial.

The court called the jury back and provided the following instruction:

So, ladies and gentlemen, included in the jury instructions that I read to you, and that were sent back with you is the requirement that the[ ] jury be unanimous. I am going to give you a further opportunity to either become unanimous or declare that you cannot reach a unanimous verdict.

After the court instructed the jury to continue deliberating, the Defense again moved for mistrial "because it's coercive to send Ms. Dowell back to the jury room." The court denied the motion, explaining its ruling as follows:

It is not clear to me that what happened with Ms. Dowell was coercive. I see no specific evidence of that. It could very well be that she simply does not want to be responsible for such a significant verdict. There has been no interaction between the jury, other than -- Ms. Flack had her arm around her to comfort her when she indicated distress and didn't answer the Court's inquiry.

The jury resumed deliberations at 7:05 p.m. Minutes later, at 7:09 p.m., the jury sent the following note: "We cannot reach a unanimous verdict today." The Defense again moved for mistrial, arguing that "based on the representations by Ms. Dowell, who -- I believe the record's clear that would not be her verdict -- that is not her verdict, Judge, that defense would argue that the Court hangs the jury. That should be a mistrial." The State responded as follows: "the note speaks for itself. They're done for the day; they didn't say they were done. They can come back Monday."

When the court suggested the possibility of an Allen charge, the Defense objected: "Judge, defense is not requesting an Allen charge. Defense believes that an Allen charge would further coerce Ms. Dowell." The jury was called back into the courtroom and was given the following instruction:

I've received your note, and I understand, and that's fine. We will then let you go for the weekend .... But since we're not finished with the case, you need to come back Monday morning at 9 o'clock.

After this instruction, Juror Flack addressed the court:

JUROR FLACK: If it makes me physically sick to come back on Monday, do I have to come back on Monday? It's very, very -- This was extremely stressful, and I am definitely not feeling well. Definitely not feeling well. I'm not even comfortable with everyone here.

THE COURT: Let's -- let me respond to you by saying --

JUROR FLACK: I actually feel sick.

THE COURT: -- that I hope you feel better soon. I do understand that a decision of this magnitude can make one anxious. I do need you to come to the courthouse, and if you're feeling so badly that you cannot deliberate, that's something I need to put on the record at that time. I can't have you not show up. Okay? Thank you.

The Defense moved for mistrial based on Juror Flack's comments, and the court denied the motion.

The jury reconvened on Monday morning. Although the Defense had asked the court not to give an Allen charge on Friday, the Defense requested a formal Allen charge before deliberations on Monday:

[DEFENSE]: The defense believes that Your Honor gave a modified Allen charge on Friday .... The defense would ask that you formally Allen charge them at this point, being that Ms. Dowel[l] is -- was visibly upset, being that Ms. Flack then spoke up -- Ms. Flack then spoke up after they were called back and said she's physically sick.

THE COURT: Alright. So, you want me to give the full Allen charge?

[DEFENSE]: Yes, Judge.

THE COURT: Does State agree?

....

[STATE]: At this juncture, Judge, the jury hasn't said they are dead locked. In fact, they said they were unanimous. Obviously, based on the display in court we know they are not -- at least publicly unanimous. So, I would ask for them to deliberate and let us know that they are --

THE COURT: So, that's a no?

[STATE]: That would be a no, Judge.

THE COURT: Okay.

The court denied the Defense's request for a formal Allen charge and the Defense's subsequent motion for a mistrial.

The jury resumed deliberations shortly after 10:30 a.m. At 10:40 a.m., the court received a note from Juror Dowell that read: "I truly think defendant should have a lesser sentence due to the lack of evidence, no weapon, no fingerprints, just a reliable witness." The Defense again moved for mistrial and for an Allen charge, arguing "[i]f that is not an indication ... they cannot reach a unanimous verdict, I'm not sure what is, Judge."

The court denied the Defense's motion and request for an Allen charge, explaining, "[t]his is not a question of whether he's guilty or not. She is indicating she thinks he should get a lesser sentence, not that he's not guilty .... I think it calls for a response." The court then called the jury back to the courtroom and addressed Juror Dowell's note:

THE COURT: ... So, Ms. Dowel[l] wrote a note that says, "I truly think the defendant should have a lesser sentence due to the lack of evidence, no weapon, no fingerprints, just a reliable witness." Let me turn it over to the clerk for court exhibit.

So, my response is as I previously instructed you, and it's in the written final instructions, the sentencing phase of the trial is exclusively for the Court. And that's outside the province of the jury. It's one of those things that the jury makes one decision or multiple decisions but none of them are the sentencing decision. I have read your note, I understand your note and I will be considering your note depending on what happens, okay? Thank you very much. Please resume your deliberations.

Deliberations resumed at 10:52 a.m. At 11:00 a.m., the jury returned with a guilty verdict of second-degree murder with actual possession of a firearm. The jury was again polled, and all jurors assented to the verdict.³

Following the verdict, the Defense moved for a new trial arguing that (1) the trial court abused its discretion by sending a visibly distraught dissenting juror back to deliberate and (2) pursuant to Campbell v. State, 186 So. 3d 577 (Fla. 3d DCA 2016), the court was required to give an Allen charge when Juror Dowell indicated for the second time that she was uncomfortable rendering a verdict.

The trial court denied the motion for new trial in a detailed, written order, explaining its decision, in part, as follows:

A juror did dissent in the jury deliberation process, but dissent does not constitute deadlock. At no time was

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