Dery v. State , 2D08–3869.

• Decision Date: 21 July 2010
• Docket Number: No. 2D08–3869.,2D08–3869.
• Parties: Michael T. DERY, Jr., Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

68 So.3d 252

Michael T. DERY, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 2D08–3869.

District Court of Appeal of Florida, Second District.

July 21, 2010.

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.ALTENBERND, Judge.

Michael T. Dery, Jr., appeals his conviction for first-degree murder and the resulting sentence of life imprisonment. The evidence against him was primarily, if not exclusively, circumstantial. The forensic science skills of the lead detective, a medical examiner, and a DNA expert were a major feature of the State's case. A juror, who did not reveal that she had any background in forensic sciences during voir dire, and who appeared simply to be a bus driver in her mid-fifties, admitted during the second day of trial that she had taken a seventeen-week course in forensic science over the internet and that her instructor had been the detective who was the lead detective in this case. The trial court refused Mr. Dery's request that one of two alternate jurors replace this juror and denied a motion for new trial on this same basis after the jury returned a verdict of guilty as charged. We conclude that the trial court was required to exercise its discretion in a manner that would have prevented this juror from participating in the deliberations and conclude that Mr. Dery is entitled to a new trial in light of these circumstances. Accordingly, we reverse the judgment and sentence and remand for a new trial.

At approximately 6 a.m. on October 4, 2002, someone strangled Tamara Lank with an automobile radio installation cord and dumped her naked body in a field at the end of a dead-end street in Pinellas County, Florida. Ms. Lank was a prostitute who was addicted to crack cocaine and lived in a hotel with another prostitute and two men. At 2 a.m. that morning, she had earned enough money to buy crack cocaine and had returned to the hotel. By 5 a.m., she apparently needed more and returned to the street.¹ Thereafter, she was never seen alive by any witness. A jogger found her body at approximately 7 a.m.

The Pinellas County Sheriff's Office thoroughly investigated the crime scene, and a medical examiner performed an autopsy on Ms. Lank's body. DNA samples were obtained from scrapings under her fingernails, as well as from her private areas. The samples revealed unknown male DNA. No suspect was identified at the time of this investigation.

In 2005, the Sheriff's Office obtained information that Mr. Dery's DNA was a high probability match for the DNA obtained from the samples.² A detective interviewed him, claiming to be investigating a “murder theft ring.” Mr. Dery denied knowing Ms. Lank, could not identify her photograph, and denied having sex with her. Further investigation indicated that he had access to a roommate's tool box near the time of the murder and that the box contained an automobile radio installation cord. He also lived in the general vicinity of the crime. Mr. Dery was indicted by a grand jury and charged with the first-degree murder of Ms. Lank.

At trial, the State maintained that Mr. Dery had had sexual intercourse with Ms. Lank at an unknown location and then had immediately strangled her and dumped her body, where it was found by the jogger. Mr. Dery did not testify, but his counsel's theory was that Mr. Dery was merely Ms. Lank's last customer and that she must have been killed by someone else after Mr. Dery left. The State's evidence that Mr. Dery was the person who had murdered Ms. Lank was obviously very circumstantial. It depended extensively on the investigation of the lead detective and on other forensic evidence provided by the medical examiner, a DNA expert, and other witnesses. On appeal, Mr. Dery has argued that he was entitled to a judgment of acquittal. We reject that argument, but the circumstantial nature of the evidence in this case creates a context in which the error on which we reverse is much more likely to constitute an abuse of discretion.

During voir dire, the State questioned the prospective jurors about their knowledge of DNA, engaging in a discussion with the panel about their knowledge of the various uses of DNA. The State asked, “I guess the question is this: Anybody feel or anybody have specific knowledge about DNA? Because you're interested, you read an article about it, or you have a particular interest in it.” One prospective juror responded that he knew about DNA “just through education.” Juror # 8 said nothing. As far as the parties knew, this juror was a female bus driver in her mid-fifties. Both sides left her on the jury.

After the lead detective testified, juror # 8 indicated that she recognized the witness. The court interviewed the juror. In the process of determining her connection to the detective, the court established that she had taken a seventeen-week course in forensic science several years earlier. It was an internet course provided by a community college. Juror # 8 emphasized that she had had no direct contact with the detective and had not appreciated that the detective was her former instructor until he took the stand.

Mr. Dery did not move for a mistrial. He merely moved to have juror # 8 removed from the jury with either of the two available alternate jurors substituted in her place. The trial court denied this motion, focusing primarily on the limited personal contact between the juror and the detective. For purposes of this opinion, we assume that the juror had no reason to disclose that she knew the detective during voir dire...