Blair v. State
| Citation | 667 So.2d 834 |
| Decision Date | 10 January 1996 |
| Docket Number | No. 93-0845,93-0845 |
| Parties | 21 Fla. L. Weekly D151 Lance H. BLAIR, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Appeal from the Circuit Court for Palm Beach County; Virginia Gay Broome, Judge.
Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Michelle A. Konig, Assistant Attorney General, West Palm Beach, for appellee.
ZEIDWIG, HOWARD M., Associate Judge.
Defendant, Lance Blair, appeals his convictions and sentence for burglary of an occupied structure, grand theft, dealing in stolen property and conspiracy to commit burglary. All charges arose out of a burglary of a Palm Beach home that was being renovated. We affirm the convictions for burglary of a structure, dealing in stolen property, and conspiracy to commit burglary and affirm the restitution order of $500,000. However, we must reverse the conviction for grand theft and thus remand for resentencing.
MID-TRIAL REDUCTION TO FIVE-MEMBER JURY
When trial began, six jurors and one alternate were selected and sworn. After opening statements and the testimony of one witness, the trial court excused a juror for lateness and sleeping and seated the alternate as a sixth juror. On the afternoon of the fourth day of trial, the trial court informed the jury that the trial would last longer than the jury had been originally advised, querying whether that would cause "terrible problems for anyone ... anything that can't be rescheduled?" One juror explained he had a conflict which could not be resolved because he was giving a five-day seminar out of state and could not return until the following Wednesday. After discussing scheduling alternatives, such as continuing the case for a week, another juror expressed reservations about the delay.
The trial court then addressed the lawyers at a side bar conference and stated that a possible resolution would be "to go with five." The defense lawyer responded "What if both sides agree to five?" The court and the state indicated agreement and defense counsel advised that he needed "thirty seconds to discuss it with my client because I don't think it would be fair." After a brief break, both sides indicated their willingness to stipulate. However the trial court stated that "I've got to explain to Mr. Blair what we are considering" and then told defense counsel to take "as much time as you need now to discuss that possibility with your client." In the presence of defendant the following colloquy took place:
The trial court then excused the sixth seated juror and proceeded with trial with the remaining five jurors.
We start with the undisputed proposition that a defendant has a constitutional right to a trial by jury with at least six jurors, guaranteed by both the Florida and United States Constitutions. See Art. I, § 22, Fla. Const. (); Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (). A defendant's right to a jury trial is "undisputably one of the most basic rights guaranteed by our constitution." State v. Griffith, 561 So.2d 528 (Fla.1990).
While defendant acknowledges that he could agree to dispense with a jury altogether, he asserts that a five-person jury is inherently infirm and constitutionally infirm. The state counters that if it is permissible to agree to a non-unanimous verdict of five jurors out of six, a unanimous verdict by a five-member jury provides equal if not greater protection to a defendant. As with any other guaranteed constitutional right there is nothing preventing a defendant from waiving fundamental rights when a defendant so chooses. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The United States Supreme Court has held that one charged with a serious crime may dispense with his constitutional right to a jury trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 277-78, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), either by waiver of a jury trial altogether or by consenting to a trial by fewer than the required number of jurors. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).
Our supreme court has also long since recognized that a defendant may waive the right to a jury trial altogether, provided that the waiver is reflected on the record. Zellers v. State, 138 Fla. 158, 189 So. 236 (1939). However, "an effective waiver of a constitutional right must be voluntary, knowing and intelligent." Tucker v. State, 559 So.2d 218, 219 (Fla.1990) (citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). In Tucker, our supreme court upheld an oral on-the-record waiver by a defendant who was represented by counsel where the record showed that the "trial judge appropriately questioned [defendant] in open court about his choice to proceed without a jury" and made an adequate inquiry into the waiver, even though there was no written waiver as required by rule 3.260. However, the supreme court emphasized that:
[I]t is better practice for trial courts to use both a personal on-the-record waiver and a written waiver. An appropriate oral colloquy will focus a defendant's attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver. If the defendant has been advised by counsel about the advantages and disadvantages of a jury trial, then the colloquy will serve to verify the defendant's understanding of the waiver. Executing a written waiver following the colloquy reinforces the finality of the waiver and provides evidence that a valid waiver occurred. Because the waiver of a fundamental right must be knowing and intelligent, the above-stated procedure promotes the policy of recognizing only voluntary and intelligent waivers.
In Griffith, our supreme court addressed the question of when a trial court has the affirmative duty to make record inquiry, concluding that the duty exists only when a right goes "to the very heart of the adjudicatory process, such as the right to a lawyer ... or the right to a jury trial." 561 So.2d at 530. The defendant in that capital case had agreed to a six-person, rather than twelve-person, jury in exchange for the state not seeking the death penalty, but his waiver was not on the record. The supreme court concluded that the defendant's waiver of his right to a twelve-person jury did not need to be on the record because he received a trial by a six-person jury as mandated by the constitution and thus had not been deprived of his fundamental right to a jury trial. However, our supreme court again concluded that "when a defense waiver is required as to any aspect or proceeding of a trial, it would be the better procedure for the trial court to make an inquiry of the defendant and to have the waiver appear on the record," precluding an appeal or postconviction claims of ineffective assistance of counsel. Id. at 531 n. 5.
The corollary to the court's holdings in Tucker and Griffith is that proceeding to trial with less than six jurors does in fact deprive a defendant of a fundamental right which accordingly requires an on-the-record waiver. In Flanning v. State, 597 So.2d 864 (Fla. 3d DCA), review denied, 605 So.2d 1266 (Fla.1992), Judge Hubbart writing for the third district determined that a defendant can waive the right to a unanimous jury verdict and accept a five-one majority verdict, but opined that in most cases the defendant would have little to gain by such a waiver and that it would be "hard to imagine a situation in which a defendant would want to accept a non-unanimous verdict rather than have a mistrial declared." Id. at 867 (quoting Sanchez v. United States, 782 F.2d 928, 934 (11th Cir.1986)). Accordingly the third district recognized that a jury unanimity waiver is fraught with some danger:
In particular, there is the danger that a defendant might feel pressured by the trial judge or prosecutor into accepting a majority verdict so as to save the state the time and expense of a second trial--or face a heavier sentence if eventually convicted should he/she refuse to waive the unanimity requirement.
Id. There is also the danger that a defendant in jail awaiting trial may fear that he will not be tried for a long time if he insists on a mistrial. Because of these dangers, "the trial judge should be especially cautious in accepting a waiver without fully probing whether the defendant's sole motivation for doing so is the anticipation of a favorable outcome." Id. at 868. The third district thus adopted the solution of the Eleventh Circuit Court of Appeals in Sanchez v. United States, 782 F.2d 928, 934 (11th Cir.1986), imposing certain prerequisites to a valid waiver:
(1) the waiver should be initiated by the...
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