DIAZ v. State of Fla., 4D08-4619.

• Decision Date: 29 October 2010
• Docket Number: No. 4D08-4619.,4D08-4619.
• Citation: 45 So.3d 32
• Parties: Manuel Gaona DIAZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

45 So.3d 32

Manuel Gaona DIAZ, Appellant,

v.STATE of Florida, Appellee.

No. 4D08-4619.

District Court of Appeal of Florida,Fourth District.

Aug. 11, 2010.

Rehearing Denied Oct. 29, 2010.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

FISHMAN, JANE D., Associate Judge.

Manuel Diaz appeals his conviction and sentence of one count of lewd and lascivious battery. We reverse and remand for a new trial, because the trial court erroneously denied Diaz' challenge for cause to a potential juror.

During voir dire the assistant state attorney had the following exchange with a potential juror:

STATE: You take that oath. And when you take that oath, those of us who are involved in the case count on you to, to uphold that oath. Okay? And you're taking an oath to follow the law. [D]o you think that it would be, think you would cheat justice if you didn't follow the law?

Prospective Juror: No. You have to listen to Judge's instructions and not form your own opinions.

STATE: Okay. And if, if, what if the Judge gave you an instruction on the law and you didn't agree with it? Your own personal feeling is I don't think the law should be that way but the Judge says it is.

Prospective Juror: Well, I would, I guess I could be impartial, yes.

STATE: Okay.

Counsel for Mr. Diaz followed up with the juror, who explained that she had previously sat as a juror and heard evidence in several cases, including a rape case, but that those cases had terminated before deliberations. The following exchange then took place:

DEFENSE: Okay. Something happened that you weren't privy to, but you were dismissed.

Prospective Juror: Exactly.

DEFENSE: Which, which is another important factor that I wanted to bring out. Do you understand the Judge is going to instruct you on the law and the law in a case like this will probably be handed to you to go to deliberate with so you can read the law and apply it to the facts and to the evidence so that you, you're not expected to have that knowledge until you get in there. All right? And throughout the trial, [the State] was bringing up the point that the attorneys are going to be talking. We're going to be talking throughout the trial and that's our job and that is not evidence, it's when we ask a question and we don't get to respond. The Judge raised a rule on that too; right?

Prospective Juror: Uh-huh.

DEFENSE: Do you ever watch those shows where you hear objection and then, you know, the Judge will bring them up and scold them at the bench and then he'll send them back? That happens in real life too. Not the scolding part. But, and the Judge makes rulings and then you're not privy to that too sometime. Do you think you can set that aside and move on if the Judge were to disallow something that was asked?

Prospective Juror: I don't, it's hard, it's hard to say.

DEFENSE: Okay. Well, let's go back to when, when the, when [the State] was talking about the law and I think [another prospective juror] said that she would do what was in her heart and that she would follow what she believed; you remember? The law is in the books. The-

Prospective Juror: Uh-huh.

DEFENSE:-Judge is going to instruct you on the law. There's certain things that happen in trial. The Judge is also going to instruct you, you are to disregard what the attorney just asked, that question that was just asked and answered, please don't consider it in your deliberations.

Prospective Juror: I, I-

DEFENSE: That would be going along with what [other prospective juror] said that, that she may not be able to follow it if she didn't agree with the law. If the Judge is doing his part and he's instructing you not to do something like that, do you think you could follow the law as instructed or-

Prospective Juror: I understand-

DEFENSE:-(inaudible)?

Prospective Juror:-I understand as a juror that I would be expected to do that.

DEFENSE: Okay.

Prospective Juror: I might, I can guarantee you-

DEFENSE: Okay.

Prospective Juror:-I might not like it.

DEFENSE: Well, that's what we're to find out and everybody, we all know that everybody's made up of something different and you have your own opinions and your own beliefs and your own thought and that's kind of why we do jury selection. Otherwise if everybody had the same makeup and they came in here with the same rational thinking then, you know, we wouldn't need this process because it takes every trial, every case has different facts. Everyone has different backgrounds. So that's why we do this questioning, to find out who is best for this particular case. Are you saying regardless of the facts in evidence that if you thought something was said that you needed to consider and the Judge told you not to consider it, you think you'd have a hard time with-Prospective Juror: I would-

DEFENSE:-that?

Prospective Juror:-yes.

DEFENSE: Okay. So you don't think you could be possibly be fair and impartial, possibly.

Prospective Juror: Possibly.

Thereafter, the trial judge advised the panel as follows:

THE COURT: Folks, let me give you an instruction about this so I could tell you what the law is regarding this so I can tell you what your role will be-

THE COURT:-so you may feel a little bit more comfortable about this. The legislature has decided what, what certain acts would be crimes and, and if its done its job, its job all of us in the courtroom will agree that committing a crime is of course a bad thing. You're not disqualified from serving on a jury because you are bothered or against a certain type of crime. Indeed, it's perfectly natural for you to have feelings about persons who commit crimes. I certain we would almost be in 100 percent agreement that we're all against murder and robbery and burglary and theft and sexual assault and many other crimes against our fellow citizens. Again, that decision as to what behavior constitutes a crime has already been made by the legislature....