Devoney v. State

• Decision Date: 12 June 1998
• Docket Number: No. 88574,88574
• Citation: 717 So.2d 501
• Parties: 23 Fla. L. Weekly S323 Peter D. DEVONEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 501

717 So.2d 501

23 Fla. L. Weekly S323

Peter D. DEVONEY, Petitioner, v. STATE of Florida, Respondent.

No. 88574.

Supreme Court of Florida.

June 12, 1998.

Rehearing Stricken Aug. 18, 1998.

James R. Valerino, Sanford, for Petitioner.

Robert A. Butterworth, Attorney General, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

We have for review State v. Devoney, 675 So.2d 155 (Fla. 5th DCA 1996), wherein the district court certified the following question:

Does one or more jurors' discussion, during the course of jury deliberations, of a matter adduced during the course of trial but which they were instructed to disregard constitute an overt act of misconduct that warrants a new trial?

Id. at 161. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Peter Devoney was driving his Corvette on October 3, 1993, when he crossed the median and struck an automobile occupied by Judy Phillips and Joseph Bruno. Phillips was killed and Bruno was severely injured. Devoney was charged with and convicted of DUI manslaughter and DUI causing serious bodily injury. At trial, defense witness Kim Swetich testified that Devoney "has always been a real calm, controlled person," and that he drove very conservatively on the day of the accident, never exceeding the speed limit. On cross-examination, the prosecutor asked Swetich the following:

Q. Okay. And you're of the opinion that the defendant drives his Corvette in a careful and cautious manner?

A. Yes.

Q. Are you aware that in 1992, he had a speeding ticket for going twenty miles an hour over the posted speed?

Defense counsel objected and the trial judge gave the following curative instruction:

Ladies and gentlemen ... the question was asked of the witness if he knew that the defendant, Mr. Devoney, had a speeding ticket at some time, I forget the date. There was an objection made and I want you to know I sustained the objection. The question and whatever answer might be made, it is totally irrelevant to the case and should not be considered by you in any way. I instruct you to disregard it totally. You're not to consider it in your deliberations.

Ultimately, the jury returned a guilty verdict. After the trial, the jury foreman, John Isley, who felt remorse for having found Devoney guilty, sought out defense counsel and told him that, contrary to the court's explicit instructions, jurors had discussed the speeding ticket during deliberations. Devoney moved for a new trial based on Isley's disclosure, and the trial judge heard Isley's allegations. Isley testified under oath that, in attempting to persuade him to no longer hold out for a not guilty verdict, as many as three of the other jurors pointed out that Devoney had a prior speeding ticket. He characterized one of the juror's statements as follows:

He said, well, you know, I could sort of lean toward your thinking except for the fact that, whether you like it or not, I can't forget the fact that he had a prior bad driving record. He was quoted as driving twenty miles an hour over the speed limit. Do you--if you continue to vote not guilty, do you want to turn this man loose knowing that he's got a DUI now and a prior record? Do you want to turn him loose so as to kill somebody else?

The trial judge interviewed the remaining five jurors and all of them denied any recollection of discussing the speeding ticket. However, the trial judge accepted Isley's testimony as credible and granted a new trial. In a split decision, the district court of appeal reversed the order with instructions to reinstate the verdict.

Many years ago, this Court established guidelines with respect to the propriety of inquiry into matters occurring in the jury room. We explained

[t]hat affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast.

Marks v. State Road Dep't, 69 So.2d 771, 774-75 (Fla.1954) (quoting Wright v. Illinois & Mississippi Tel. Co., 20 Iowa 195, 210 (1866)(emphasis omitted)). In short, matters that inhere in the verdict are subjective in nature, whereas matters that are extrinsic to the verdict are objective.

The Florida Evidence Code codifies the sanctity of the jury verdict by providing that "[u]pon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment." § 90.607(2)(b), Fla. Stat. (1993).

Consistent with the foregoing rule, our courts have been vigilant in prohibiting inquiry into jury deliberations of matters necessarily arising out of the trial. In Johnson v. State, 593 So.2d 206 (Fla.1992), the defendant relied upon the deposition of the jury foreman concerning misunderstandings of the jury during their deliberations in the penalty phase of a capital case. In rejecting this claim, we said:

[T]he jury foreman was questioned about jury pollings during deliberations and the jury's understanding of the court's instructions. This testimony "essentially inheres in the verdict" as it relates what occurred in the jury room during the jury's deliberations. This Court has held that such juror testimony is inadmissible.

Id. at 210. Likewise, in Sims v. State, 444 So.2d 922, 925 (Fla.1983), we stated:

A jury's consideration of a defendant's failure to testify is not the same as considering evidence outside the record, but is rather an example of its misunderstanding or not following the instructions of the court. Such misunderstanding is a matter which essentially inheres in the verdict itself.

See also Baptist Hosp. v. Maler, 579 So.2d 97 (Fla.1991) (allegation that verdict was prompted by sympathy for brain-damaged child not subject to judicial inquiry); Orange County v. Piper, 585 So.2d 1182 (Fla. 5th DCA 1991)(allegations that jury deliberations involved discussions of insurance and other matters not introduced into evidence did not warrant postverdict jury interview); Phares v. Froehlich, 582 So.2d 683 (Fla. 2d DCA 1991)(jury interview unwarranted on assertions that jury disregarded court's instructions not to consider non-record evidence).

Those cases which have permitted an attack upon a jury verdict have required allegations of an influence upon the jurors' deliberations arising from external sources. See, e.g., Russ v. State, 95 So.2d 594 (Fla.1957)(juror related personal knowledge of non-record facts to the jury); Carcasses v. Julien, 616 So.2d 486 (Fla. 3d DCA 1993)(assertion that juror received information from outside the courtroom); Sentinel Communications Co. v. Watson, 615 So.2d 768 (Fla. 5th DCA 1993) (allegations that jurors read newspapers contrary to court orders or lied about knowledge of an incident in parking lot where jury threats might have been made do not inhere in the verdict); International Union of Operating Eng'rs Local 675 v. Kinder, 573 So.2d 385 (Fla. 4th DCA 1991)(courthouse custodian urged jurors to give a large award to the plaintiff).

The federal courts have long recognized the importance of preserving the sanctity of jury deliberations. As early as 1915, the United States Supreme Court wrote:

[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915).

In English common law, a blanket rule prohibited jurors from testifying to impeach their own verdict. ¹ That rule was adopted in the United States, but courts carved out an exception for the situation in which an external influence affected the jury. See Note, Public Disclosures of Jury Deliberations, 96 Harv. L.Rev. 886, 887 n. 6 (1983). Today, this common law rule is codified in Federal Rule of Evidence 606(b). ²

Federal courts also use the external/internal distinction to decide the admissibility of jurors' testimony to impeach their own verdict. In Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the defendants were convicted of several federal crimes. After the jury returned a verdict of guilty, the defendants moved for a new trial based on evidence that jurors had engaged in several illicit activities such as consuming alcohol and ingesting and selling narcotics during court recess. As proof, defendants presented an affidavit of a juror who was an eyewitness to these activities.

The district court ruled that the affidavit was inadmissible under rule 606(b)....