Bolling v. State

• Citation: 61 So.3d 419
• Decision Date: 14 April 2011
• Docket Number: No. 1D09–4006.,1D09–4006.
• Parties: Tromondo Tobias BOLLING, Appellant,v.STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

61 So.3d 419

Tromondo Tobias BOLLING, Appellant,

v.STATE of Florida, Appellee.

No. 1D09–4006.

District Court of Appeal of Florida, First District.

April 14, 2011.

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.BENTON, C.J.

Tromondo Tobias Bolling appeals the trial court's denial of his motion for new trial. The motion alleged misconduct by a juror in not disclosing that he knew Meachell Randall, the defendant's mother, and through her the defendant-or at least who the defendant was. We affirm the denial of the motion for new trial, because the motion makes no claim that the defense would have challenged the juror, if the juror had disclosed the relationship during voir dire.

The supreme court has laid out a three-part test for determining whether a juror's nondisclosure of information during voir dire will warrant a new trial: “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence.” De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995) (citing Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972)). While De La Rosa is a civil case, the supreme court routinely applies its three-part test in criminal cases. See, e.g., Murray v. State, 3 So.3d 1108, 1121–22 (Fla.2009); Lugo v. State, 2 So.3d 1, 13–16 (Fla.2008); Bigham v. State, 995 So.2d 207, 215 (Fla.2008).

After a jury found him guilty of burglary of a conveyance with assault or battery and of robbery without a weapon, Mr. Bolling filed a motion for new trial, alleging that a juror, Ronald Maxwell, knew both Mr. Bolling and his mother, who had testified at trial for the defense, and that he had not disclosed the fact, although he was asked on voir dire. The motion alleged that the defendant's mother rented her home from the juror or his wife, that the mother and the juror had been friends for years, and that they had talked about Mr. Bolling in the courthouse the morning of trial. Although it ultimately denied the motion for new trial, the trial court explicitly ruled that Mr. Bolling had satisfied all three elements of the De La Rosa test.

At an evidentiary hearing on the motion, the trial court found that Mr. Bolling did not recognize Mr. Maxwell, before the trial concluded. The trial court also credited Mr. Maxwell's testimony that he did not recognize Mr. Bolling during voir dire or trial. But the trial court found that Mr. Maxwell knew who the defendant's mother was, went to the same church she did, saw her in the courthouse cafeteria on the morning of trial, asked her why she was there, and learned she was there with her son. The trial court found that Mr. Maxwell did not disclose these facts to the trial judge, before the hearing on the motion for new trial, but that he did tell his fellow jurors, before deliberations began, that the defendant's mother was a tenant in a house that his wife owned.

Like the trial court, we conclude that the appellant proved the second and third elements of the supreme court's three-part test. The supreme court has made clear that “a juror's nondisclosure need not be intentional to constitute concealment.” Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 343 (Fla.2002). In De La Rosa, the court adopted the dissenting opinion in Zequeira v. De La Rosa, 627 So.2d 531, 533–34 (Fla. 3d DCA 1993): “ ‘Assuming, arguendo, that the juror had no intention of misleading counsel, ‘the omission nonetheless prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.’ Bernal[v. Lipp, 580 So.2d 315, 316–17 (Fla. 3d DCA 1991) ].' ” De La Rosa, 659 So.2d at 242. Cf. Wiggins v. Sadow, 925 So.2d 1152, 1154–55 (Fla. 4th DCA 2006) (concluding that juror did not conceal any information because she did not know of her relationship to plaintiff through his granddaughters until the verdict was read). As regards the third element, the fact findings ruled out the possibility that Mr. Bolling, the complaining party in the present case, even knew his mother was acquainted with one of the jurors, before the trial concluded.

The crux is the first prong, relevance and materiality. We have said that any “juror who conceals a material fact that is relevant to the controversy is guilty of misconduct, and this misconduct is prejudicial to at least one of the parties, because it impairs his or her right to challenge the juror.” Young v. State, 720 So.2d 1101, 1103 (Fla. 1st DCA 1998). (In criminal cases, of course, the state is also a party.) The presumption of prejudice has been said to apply “unless the opposing party can demonstrate there is no reasonable possibility that the misconduct affected the verdict.” Williams v. State, 933 So.2d 671, 672 (Fla. 1st DCA 2006) (citing State v. Hamilton, 574 So.2d 124, 129 (Fla.1991)). Under the rule, a criminal defendant is entitled to a new trial if a juror's misconduct has prejudiced the defendant's substantial rights. See Fla. R. Crim. P. 3.600(b)(4).

A juror's knowledge, even unrelated to the parties, can be grounds for a challenge. See, e.g., Dery v. State, ––– So.3d ––––, ––––, 2010 WL 2836123 (Fla. 2d DCA 2010) (as a result of juror's failure to disclose her specialized knowledge about DNA during voir dire, defendant “was prevented from exercising a peremptory or for-cause challenge to strike her from the jury during voir dire”). In remanding for a juror interview and evidentiary hearing to determine possible juror misconduct, we have said that “a juror's ‘knowledge concerning one of the parties is considered to be a material fact,’ “ and, specifically, that “[ i]f true, the allegations ... that the juror knew Forbes and had attended a neighborhood meeting wherein crimes were discussed and attributed to him would warrant a new trial.” Forbes v. State, 753 So.2d 709, 710 (Fla. 1st DCA 2000) (quoting Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991)). In remanding for a juror interview, the Fourth District stated that a juror's nondisclosure of the fact that he knew the defendant's brother “is reasonably capable of affecting a decision to exercise peremptory challenges even if the juror is not disqualified for cause.” Tripp v. State, 874 So.2d 732, 733 (Fla. 4th DCA 2004). But the cases do not say that all knowledge concerning a party or witness is relevant and material.

Here we do not share the trial court's view that Mr. Bolling established that the information Mr. Maxwell failed to disclose was relevant and material to Mr. Bolling's decision not to challenge Mr. Maxwell as a juror. Relevance and materiality necessarily turn on the facts and circumstances of each case. See Tejada, 814 So.2d at 341 (quoting Garnett v. McClellan, 767 So.2d 1229, 1230–31 (Fla. 5th DCA 2000)).¹ In ruling on the first prong of the De La Rosa test, the trial court found:

Well, the information of, I know the defendant's mother and my wife rents to her. And I know that Mr. Maxwell talked about he went to that house one time, and the defendant was in the bedroom and he didn't see him or he didn't come out, or something to that effect. But the fact that he knew the defendant and the defendant's mother, that is relevant and material evidence.²

At issue in the present case are relevance and materiality to the defense's—not the prosecution's—decision whether to challenge the juror. The Fifth District has explained when undisclosed information is considered material:

A juror's nondisclosure of information during voir dire is considered material if it is so substantial that, if the facts were known, the defense likely would peremptorily exclude the juror from the jury. James v. State, 751 So.2d 682 (Fla. 5th DCA 2000)....

.... Omitted information has been considered relevant and material where it implies a bias or sympathy for the other side which in all likelihood would have resulted in the use of a peremptory challenge. See, e.g., De La Rosa; Bernal v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991); Industrial Fire & Cas. Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989); Mobil Chemical Co. v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983).³

McCauslin v. O'Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008). See Fine v. Shands Teaching Hosp. & Clinics, Inc., 994 So.2d 426, 427–28 (Fla. 1st DCA 2008) (reversing for reconsideration under the De La Rosa test where trial court “erred in focusing on whether or not it believed the jurors were biased when deliberating this case rather than on what Appellant's counsel would have done during voir dire had the litigation history [of the jurors] been disclosed”).

Relevance and materiality must be gauged in the context of a party's deciding whether to challenge a juror who failed to make disclosure. Section 913.03 provides the grounds for a challenge for cause, including that “[t]he juror has a state of mind regarding the defendant ... that will prevent the juror from acting with impartiality.” § 913.03(10), Fla. Stat. (2009). “The test for juror competency is ‘whether the juror can lay aside any bias or prejudice and render’ a verdict solely on the evidence presented and the instructions given. If there is any reasonable doubt about a juror's impartiality, the juror must be excused for cause.” Diaz v. State, 45 So.3d 32, 35 (Fla. 4th DCA 2010) (citations omitted). Here Mr. Bolling does not argue that he would have challenged Mr. Maxwell for cause.

Nor does the record establish that the information Mr. Maxwell failed to disclose would have made a peremptory challenge by the defense likely. “ ‘While challenges for cause permit rejection of jurors on a narrowly...