Companioni v. City of Tampa

• Decision Date: 30 March 2007
• Docket Number: No. 2D05-688.,2D05-688.
• Parties: Ramiro COMPANIONI, Jr., Appellant, v. CITY OF TAMPA, Appellee.
• Court: Florida District Court of Appeals

958 So.2d 404

Ramiro COMPANIONI, Jr., Appellant, v. CITY OF TAMPA, Appellee.

No. 2D05-688.

District Court of Appeal of Florida, Second District.

March 30, 2007.

Rehearing Denied May 15, 2007.

Dominic O. Fariello, Tampa, for Appellant.

Richard M. Zabak of GrayRobinson, P.A., Tampa, for Appellee.

WALLACE, Judge.

After Ramiro Companioni, Jr., obtained a jury verdict for a substantial amount in his personal injury action against the City of Tampa, the City moved for a new trial. The trial court granted the City's motion on the ground that two members of the jury were not qualified to serve because they had previously been convicted of felonies and had not had their civil rights restored. Because the City failed to establish that it was not accorded a fair and impartial jury or that its substantial rights were prejudiced by the participation of the two unqualified jurors, we reverse the order granting the City a new trial.

Facts and Procedural Background

The unfortunate event which began this case was a collision between a motorcycle driven by Mr. Companioni and a water truck owned by the City. The collision occurred on the morning of November 22, 1996, on Hillsborough Avenue in Tampa. Mr. Companioni was thrown to the pavement by the force of the collision, and he sustained serious injuries as a result. After giving the required notice of intent to sue, Mr. Companioni filed a personal injury action against the City.

The case went to trial in March 2004. The trial court qualified the prospective jurors in a central juror assembly room prior to the beginning of the trial. The prospective jurors had been required to complete and bring to court a standard "Juror Voir Dire Questionnaire." Completing the form with a ballpoint pen created multiple copies so that copies of the completed questionnaires could be furnished to counsel at trial. During the voir dire examination, neither of the attorneys for the parties asked the prospective jurors any questions about prior felony convictions or any other questions pertaining to the prospective jurors' statutory qualifications to serve on a jury.¹ Instead, the questions the attorneys directed to the venire related mainly to the types of employment pursued by the prospective jurors and their family members and—quite understandably—the prospective jurors' experiences with motorcycles.

At the conclusion of the trial, the jury returned a verdict in favor of Mr. Companioni for a substantial amount. The trial court subsequently entered final judgment in favor of Mr. Companioni and against the City in accordance with the verdict. The City timely served a motion for remittitur and a motion for new trial that raised multiple issues. After the final judgment was entered against it, the City filed a motion to alter or amend judgment asking the trial court to limit execution and the amount of the judgment in accordance with section 768.28, Florida Statutes (Supp.1996).

Next, the City filed an amendment to its motion for new trial. In the amendment, the City alleged that two members of the six-person jury had failed to disclose prior felony convictions and had not had their civil rights restored. In particular, Juror No. 250 had been convicted of obtaining property by worthless check on May 26, 1988, and possession of cocaine on May 27, 1988. Juror No. 1183 had been convicted of grand theft on June 18, 1996. The City attached certified copies of the felony convictions to its amended motion, along with certificates under seal from the Office of Executive Clemency stating that neither of the two jurors had had their civil rights restored. The City concluded that since two of the six jurors were disqualified from serving on the jury by reason of their prior felony convictions, the trial court was required to set aside the jury verdict and reschedule the matter for a new trial. The City did not supplement its motion for new trial with a motion to interview any of the jury members. See Fla. R. Civ. P. 1.431(h); R. Regulating Fla. Bar 4-3.5(d)(4). None of the members of the jury testified at the hearing on the motion for new trial.

In addition to the certified copies of the judgments of conviction and the certificates from the Office of Executive Clemency, the City attached to its amendment to the motion for new trial copies of the "Juror Voir Dire Questionnaires" that had been completed by each member of the jury panel. In pertinent part, the questionnaire asked the prospective jurors to answer "Yes" or "No" to the following question: "Have you or a member of your family or a close friend ... been accused of a crime?" Juror No. 250 answered this question "No"; Juror No. 1183 responded "Yes" to this inquiry. The juror questionnaire also contained the following legend in bold print near the bottom of the form just below the line provided for the prospective juror's signature: "Juror must be a U.S. and Florida Citizen and a Hillsborough County Resident; and not convicted without Governor's pardon of a felony crime." However, the questionnaire did not ask the prospective jurors to indicate whether they had ever been convicted of a felony and had not had their civil rights restored.

The trial court conducted a hearing on the City's motions. The evidence presented by the City at the hearing was limited to the certified copies of the judgments of conviction, the certificates under seal from the Office of Executive Clemency, and the copies of the juror questionnaires. At the conclusion of the hearing, the trial court granted the City a new trial and set aside the verdict and the judgment on the basis of the disqualification of the two jurors by reason of their prior felony convictions. The trial court made findings of fact and conclusions of law in support of its order as follows:

In the Thirteenth Judicial Circuit, when jurors are qualified as a group each Monday and Wednesday, they are specifically asked if they have been convicted of a felony and not had their civil rights restored. Potential jurors are advised that if they respond affirmatively, they are not qualified to serve as jurors. By shear [sic] coincidence, the undersigned made this inquiry of this particular panel. Thus, the two jurors at issue responded falsely to this inquiry. While the Florida Courts are reluctant to set aside a juror [sic] verdict once a panel is sworn, this Court cannot permit perspective [sic] jurors who provide false answers concerning their qualifications to participate in the jury process.

Further, in response to the jury questionnaires, while one juror did indicate an arrest, the other stated he had no arrests.[²] The Courts have overlooked disqualification based upon the partial disclosure of information or the ability to observe the information by counsel, e.g.[,] State v. Ro[d]gers, 347 So.2d 610 (Fla.1977). However, it is clear that at least one juror failed to disclose this critical information.

There is no doubt that the Constitution of this State requires a jury to be conducted by those qualified by law and the law provides that no person may serve as a juror "who has been convicted in this state ... of ... any offense that is a felony ..., unless restored to civil rights." While the Court has no desire to retry this case, the plain reading of the Constitution and Section 40.013(1) do not provide any latitude.

Because it considered the juror disqualification issue to be determinative, the trial court did not address the other grounds raised in the City's motion for new trial. For the same reason, the trial court did not rule on the City's motion for remittitur or the motion to alter or amend judgment.

Framing the Issue

The Florida Constitution provides that "[t]he qualifications and the number of jurors, not fewer than six, shall be fixed by law." Art. I, § 22, Fla. Const. With regard to the disqualification of certain categories of persons from jury service, section 40.013, Florida Statutes (2003), provides:

(1) No person who is under prosecution for any crime, or who has been convicted in this state, any federal court, or any other state, territory, or country of bribery, forgery, perjury, larceny, or any other offense that is a felony in this state or which if it had been committed in this state would be a felony, unless restored to civil rights, shall be qualified to serve as a juror.

(2)(a) Neither the Governor, nor Lieutenant Governor, nor any Cabinet officer, nor clerk of court, or judge shall be qualified to be a juror.

....

(3) No person interested in any issue to be tried therein shall be a juror in any cause; but no person shall be disqualified from sitting in the trial of any suit in which the state or any county or municipal corporation is a party by reason of the fact that such person is a resident or taxpayer within the state or such county or municipal corporation.

Thus persons who have been convicted of bribery, forgery, perjury, larceny, or any other offense that is a felony are disqualified from jury service unless they have had their civil rights restored. In accordance with other provisions of the statute, certain other categories of persons may be excused or exempt from jury service for a variety of reasons. § 40.013(2)(b), (4)-(9). However, these grounds for excusal or exemption from jury service should not be confused with the entirely separate grounds mandating disqualification. In this case, Juror No. 250 and Juror No. 1183 were disqualified from jury service by reason of their prior felony convictions.

The judge who tried this case also happened to qualify the jurors in the jury assembly room prior to trial. Based on what he had personally seen and heard at the qualification proceeding, in the order granting the City a new trial, the trial judge made a finding of fact that the two jurors in question had responded falsely to the inquiry made in the jury assembly room about prior felony convictions. On appeal, Mr. Companioni challenges this finding. He...