Blair v. State

• Decision Date: 28 August 1997
• Docket Number: No. 87509,87509
• Citation: 698 So.2d 1210
• Parties: 22 Fla. L. Weekly S517 Lance H. BLAIR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1210

698 So.2d 1210

22 Fla. L. Weekly S517

Lance H. BLAIR, Petitioner, v. STATE of Florida, Respondent.

No. 87509.

Supreme Court of Florida.

Aug. 28, 1997.

Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Robert A. Butterworth, Attorney General; Georgina Jimenez-Orosa, Senior Assistant Attorney General, Bureau Chief; and Michelle A. Konig and Sharon A. Wood, Assistant Attorneys General, West Palm Beach, for respondent.

ANSTEAD, Justice.

We have for review Blair v. State, 667 So.2d 834 (Fla. 4th DCA 1996), a case for which we accepted jurisdiction to answer the following questions which were certified to be of great public importance:

DO THE FLORIDA AND UNITED STATES CONSTITUTIONS PERMIT A DEFENDANT TO WAIVE HIS RIGHT TO A SIX-MEMBER JURY AND AGREE TO BE TRIED BY A FIVE-MEMBER JURY IN A CRIMINAL CASE?

TO HAVE A VALID ORAL WAIVER OF THE RIGHT TO A SIX-MEMBER JURY IN A CRIMINAL CASE, IS IT NECESSARY FOR THE TRIAL COURT TO CONDUCT AN ON-THE-RECORD INQUIRY WITH THE DEFENDANT WHERE THE TRIAL COURT ADVISES THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SIX-MEMBER JURY AND GIVES A FULL EXPLANATION OF THE CONSEQUENCES OF THE WAIVER OF THAT RIGHT?

Id. at 843. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the first certified question in the affirmative, the second question in the negative, and approve the decision under review.

MATERIAL FACTS

Lance H. Blair was charged by information with burglary while armed, conspiracy to commit burglary and grand theft, dealing in stolen property, and firearm violations. At trial, six jurors and one alternate were selected and sworn to hear the case. Shortly thereafter, the trial court excused one juror for neglect, seating the alternate as the sixth juror.

On the afternoon of the trial's fourth day, a Friday, after the State had presented most of its evidence, the court informed the jury that the trial would last longer than anticipated. The court asked if this would cause "terrible problems for anyone ... anything that can't be rescheduled?" Juror six stated that he had to give a five-day out-of-state seminar and could not return until the following Wednesday. Defense counsel noted a problem with another client, but the court stated that would not take precedence over Blair's jury trial. After discussing scheduling alternatives, including continuing the case until ten days later, another juror expressed reservations about the delay.

Thereafter, a side-bar conference ensued where the following colloquy took place:

The Court: A possible resolution, go with five.

Mr. Brown [Defense Counsel]: What if both sides agree to go with five?

The Court: That's fine with me.

Mr. Lawson [Prosecutor]: Judge, the State is willing to go along with that.

Mr. Brown: Let me tell you in thirty seconds [sic] to discuss it with my client because I don't think it would be fair.

The Court: All right.

The judge then excused the jury from the courtroom, and the following colloquy took place in Blair's presence:

The Court: All right. It is my understanding that both attorneys will stipulate that we can excuse juror number six who is Thomas Murray and we will try this case with five jurors and be bound....

Mr. Lawson: Judge, I will go along with that. I have only one request and that is that Mr. Murray put it on the record.

The Court: I am going to do that but first I've got to explain to Mr. Blair what we are considering.

Mr. Lawson: Okay.

The Court: And then, whatever decision they make will be binding on the Court and on the Defendant. I am going to give you as much time as you need now to discuss that possibility with your client, Mr. Brown.

Mr. Brown: I have already discussed it with him and as opposed to postponing it a week or having a possible mistrial, we would rather go with five and I quickly tried to explain [to] him the alternative.

The Court: All right. Let me have [you] explain them again. I want to make sure that this is what he wants to do.

Mr. Brown: Well, I told him there is a potential for a mistrial. There also is, as the Court has suggested, postponing it a full week until February 1st and I have to admit I didn't tune in to what other [juror's] problem is going to be, something about an owner coming to town.

The Court: Well, he didn't sound terrifically serious to me.

Mr. Brown: Well, there are other possibilities of postponing it for a full week and starting it up again February 1st or going with five jurors. I see that as the three alternatives. I'm sure my client doesn't want a mistrial. So, that leaves us with two alternatives, either February 1st starting off again a week later or going with five jurors.

The Defendant: Your Honor, we will take the five, if that's all right with you.

The Court: All right. We will do that then.

The court then excused juror number six and proceeded with the remaining five jurors. Blair was subsequently found guilty by the jury of burglary of an occupied structure, grand theft, dealing in stolen property and conspiracy to commit burglary.

On appeal, the Fourth District affirmed all of Blair's convictions except for the grand theft conviction and remanded for resentencing. The court found that Blair's waiver of his right to a full six-person jury was valid. Blair, 667 So.2d at 839. ¹

RIGHT TO TRIAL BY JURY

Before addressing the facts of this case, we review and reaffirm the importance of the right to trial by jury in the United States and Florida. From the outset, the earliest American colonists "cherished the right to a trial by jury." Douglas E. Lahammer, Note, The Federal Constitutional Right to Trial by Jury for The Offense of Driving While Intoxicated, 73 Minn. L.Rev. 122, 125 n. 19 (1988). As evidence of this strong sentiment, the right to trial by jury was incorporated into King James I's Instructions for the Government of the Colony of Virginia, 1606; the Massachusetts Body of Liberties, 1628; the Concessions and Agreements of West New Jersey, 1677; and the Frame of Government of Pennsylvania, 1682. Lloyd E. Moore, The Jury, Tool of Kings, Palladium of Liberty 97-99 (1973); Sources of Our Liberties 37, 74, 185, 217 (Richard L. Perry ed., 1959).

Later, this right was of paramount importance to the Founding Fathers. Indeed, "[t]rial by jury, as instituted in England, was to the Founders an integral part of a judicial system aimed at achieving justice." Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 Geo. Wash. L.Rev. 723, 742 (1993). Accordingly, the Founders, mindful of "royal encroachments on jury trial" and fearful of leaving this precious right to the whims of legislative prerogative, included protection of the right in the Declaration of Independence ² and included three separate provisions in the Constitution for the right to jury trial: Article III ³ and later the Sixth ⁴ and Seventh ⁵ Amendments. Id. at 744-45. In addition, the "constitutions of the original 13 states and of every state later admitted to the United States contained some form of a jury trial right." Robert P. Connolly, Note, The Petty Offense Exception and the Right to a Jury Trial, 48 Fordham L.Rev. 205, 212 n. 51 (1979). No state has ever removed the right from its constitution. Duncan v. Louisiana, 391 U.S. 145, 153-54, 88 S.Ct. 1444, 1449-50, 20 L.Ed.2d 491 (1968). The right extends equally to criminal and civil cases, except in Louisiana, Colorado, and Wyoming, which only guarantee the right to trial by jury in criminal cases. See Henry H. Perritt, Jr., "And the Whole Earth Was of One Language "--A Broad View of Dispute Resolution, 29 Vill. L.Rev. 1221, 1320 n. 554 (1984); art. I, § 17, La. Const.; art. II, § 23, Colo. Const.; art. I, § 9, Wyo. Const.

FLORIDA

In Florida, we also have always considered the right to jury trial an indispensable component of our system of justice. In addition to the federal constitutional mandate, ⁶ our state constitution's Declaration of Rights expressly provides that the "right of trial by jury shall be secure to all and remain inviolate." Art. I, § 22, Fla. Const. Similarly, this Court has acknowledged that "a defendant's right to a jury trial is indisputably one of the most basic rights guaranteed by our constitution." State v. Griffith, 561 So.2d 528, 530 (Fla.1990); see also Floyd v. State, 90 So.2d 105, 106 (Fla.1956) (stating that "right of an accused to trial by jury is one of the most fundamental rights guaranteed by our system of government").

Further, and unlike the United States Constitution, the Florida Constitution specifies a minimum numbers of jurors. In guaranteeing that the "right of trial by jury shall be secure to all and remain inviolate," the Florida Constitution requires that "not fewer than six" jurors constitutes a legal jury. Art. I, § 22, Fla. Const.; State v. Griffith, 561 So.2d 528, 530 (Fla.1990) (stating that trial by six-person jury is "mandated by the constitution in article I, section 22, Florida Constitution").

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the United States Supreme Court held that six-person juries in state criminal trials did not violate the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments. See also Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (same holding regarding Seventh Amendment right to trial in a civil case). On the other hand, the Court held in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), that a state must provide a criminal defendant with a jury composed of no fewer than six persons.

WAIVER

It has long been acknowledged by federal and state courts that a defendant may waive constitutional rights, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), including the right to trial by jury, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, ...