Flanning v. State
| Decision Date | 07 April 1992 |
| Docket Number | No. 90-1698,90-1698 |
| Citation | 597 So.2d 864 |
| Parties | 17 Fla. L. Weekly D902 Deric FLANNING, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Carol J. Y. Wilson, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Jacqueline M. Valdespino, Asst. Atty. Gen., for appellee.
Before HUBBART, FERGUSON and GODERICH, JJ.
The central question presented for review is whether a defendant in a criminal case may, with the consent of the state, waive his/her right to a unanimous six-person jury verdict and accept a 5-1 majority verdict. We hold that a defendant may validly waive this right and agree to such a verdict, but only when the following requirements are met: (1) the waiver is initiated by the defendant, not the trial judge or the prosecutor; (2) the jury has informed the court that it is unable to reach a verdict, after having had a reasonable time to deliberate; (3) the trial judge explains to the defendant his/her right to a unanimous jury verdict and the consequences of a waiver of that right; and (4) the trial judge questions the defendant directly and determines that the waiver is being made knowingly and voluntarily. Because the third and fourth requirements, as stated above, were not met in this case, we conclude that the defendant's waiver of a unanimous jury verdict below was invalid, and, accordingly, reverse for a new trial.
The defendant Deric Flanning was charged by information below with robbery with a firearm, Sec. 812.13(2)(a), Fla.Stat. (1989), entered a plea of not guilty, and was tried by a six-person jury. At the close of all the evidence, the trial court, upon a defense motion for judgment of acquittal, reduced the charge to robbery with a non-deadly weapon. Sec. 812.13(2)(b), Fla.Stat. (1989).
The jury retired at 2:45 p.m. and deliberated for four hours without being able to reach a verdict. During this time, the jury sent out two written questions, which the trial judge answered. At 5:43 p.m., the jury sent out a written note stating "We are going to be a long time." Upon receipt of this note, defense counsel asked the trial judge to determine whether the jury was split 5-1 as the prosecuting attorney surmised it was, and if so, defense counsel stated that "I would discuss with my client the possibility of stipulating to a five person verdict if they [the state] were willing to stipulate to it." The trial judge was, at that point, negative to the idea and did not make the requested inquiry of the jury. Instead, the trial judge, without objection, sent the jurors home with an admonition not to discuss the case with anyone and to return to court at 8:50 a.m. the next day to resume deliberations.
The next morning, the jury resumed deliberations as instructed. At 10:30 a.m., the trial court ordered the jury returned to the courtroom and inquired how the jury was split; the jurors responded 5-1, following which the trial court gave the jury an Allen charge. After the jury retired, the trial judge asked defense counsel about the possibility of accepting a 5-1 majority verdict, as counsel had previously suggested. Defense counsel agreed to discuss the matter with the defendant; the prosecuting attorney at that point expressly consented on the record to accepting the 5-1 majority verdict.
Approximately forty-five minutes later, the jury sent out a note stating, "We still cannot agree," following which the trial judge inquired what the defendant's position was. Defense counsel responded, after conferring with the defendant, "Your honor, he's decided to accept a non-unanimous verdict of five to one." The trial judge then had the defendant sworn and directly addressed him in a brief colloquy ostensibly designed to determine whether the defendant understood what he was doing. 1 The trial judge then ordered the jury returned to the courtroom, accepted a 5-1 majority verdict of guilty of robbery with a non-deadly weapon after polling the jury to verify the verdict, and discharged the jury. The defendant was subsequently adjudged guilty in accord with the jury verdict and was sentenced to thirty-years imprisonment as an habitual offender. This appeal by the defendant follows.
It is settled that a defendant has a federal constitutional right under the Sixth and Fourteenth Amendments to a unanimous jury verdict when charged with a non-petty criminal offense where the jury, as here, is composed of six members. Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). Although Florida's constitutional guarantee of a jury trial [Art. I, Secs. 16, 22, Fla. Const.] has never been interpreted to require a unanimous jury verdict, it has long been the legal practice of this state to require such unanimity in all criminal jury trials; Fla.R.Crim.P. 3.440 memorializes this long-standing practice: "[n]o [jury] verdict may be rendered unless all of the trial jurors concur in it." No statute or rule of procedure in Florida has ever expressly abolished this unanimity requirement for any criminal jury trial in this state. See In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66-69 (Fla.1972) (Roberts, J., dissenting). It is therefore settled that "[i]n this state, the verdict of the jury must be unanimous" and that any interference with this right denies the defendant a fair trial. Jones v. State, 92 So.2d 261 (Fla.1956).
Contrary to the defendant's argument, however, we think the right to a unanimous jury verdict may be validly waived by the defendant under certain circumstances. Indeed, it is well settled that the entire right to a jury trial may be validly waived by the defendant under certain circumstances. Indeed, it is well settled that the entire right to a jury trial may be validly waived by the defendant in a criminal case; 2 also an aspect of this right may be validly waived by the defendant, namely, the right to be tried by a 12-person jury in a capital case. 3 We see no reason, then, why the defendant is constitutionally prohibited from waiving another aspect of this right--namely, the right to a unanimous jury verdict. It is therefore not surprising that, although there are some contrary federal cases, 4 the weight of authority in the country appears to recognize the validity of such a waiver, or at least, the better reasoned cases do. 5
We recognize, however, that a jury unanimity waiver is fraught with some danger and that accordingly such waiver may only be recognized under limited circumstances. In particular, there is the danger that a defendant might feel pressured by the trial judge or prosecutor into accepting a majority jury verdict so as to save the state the time and expense of a second trial--or face a heavier sentence if eventually convicted should he/she refuse to waive the unanimity requirement. We therefore agree with the Eleventh Circuit Court of Appeals' resolution of this issue in Sanchez v. United States, 782 F.2d 928 (11th Cir.1986):
"The principal concern of opponents of a waiver provision is the potential for coercion by judges and prosecutors who would propose the waiver to the defendant and then be in a position to recommend or impose a harsh sentence upon a defendant who refuses. See, United States v. Pachay, 711 F.2d 488, 493 (2d Cir.1983); Hibdon v. United States, 204 F.2d 834, 839 (6th Cir.1953). Such an argument is persuasive for finding that a defendant cannot waive the right where the suggestion comes from the Government or the judge, but does not follow when requested by the defendant himself.
....
Clearly there is a constitutional right to a unanimous verdict, but in exceptional circumstances the defendant should be allowed to waive that right. It is hard to imagine a situation in which a defendant would want to accept a non-unanimous verdict rather than have a mistrial declared, but there could be a case again where the defendant anticipates a favorable outcome ultimately if a nonunanimous verdict is accepted, and in those circumstances the defendant should be allowed to do so. Before allowing the defendant to waive the right, the following criteria should be met: (1) the waiver should be initiated by the defendant, not the judge or prosecutor; (2) the jury must have had a reasonable time to deliberate and should have told the court only that it could not reach a decision, but not how it stood numerically; (3) the judge should carefully explain to the defendant the right to a unanimous verdict and the consequences of a waiver of that right; and (4) the judge should question the defendant directly to determine whether the waiver is being made knowingly and voluntarily."
Beyond the Sanchez requirements which we hereby adopt, we have considerable doubt whether the right to a unanimous jury verdict could be validly waived by a defendant so as to accept a plurality verdict, especially as to a six-person jury; this is so because the resultant plurality verdict may not legally constitute the verdict of a jury at all. Moreover, a similar waiver to accept a bare 4-2 [or 7-5] majority verdict may arguably be fraught with similar problems. We need not reach such issues in this case, however, because we think a super majority verdict of 5-1, when validly accepted from the defendant in accord with the Sanchez requirements, legally constitutes the verdict of a jury and may therefore be accepted by the court. Compare Burch; Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978).
Turning to the instant case, we have no trouble in concluding that the defendant did not validly waive his right to a unanimous jury verdict. Although the purported waiver was initiated by the defendant, and the jury had previously informed the court that it was unable to reach a unanimous verdict after having had a reasonable time to deliberate, it is clear that the...
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Blair v. State
...six jurors does in fact deprive a defendant of a fundamental right which accordingly requires an on-the-record waiver. In Flanning v. State, 597 So.2d 864 (Fla. 3d DCA), review denied, 605 So.2d 1266 (Fla.1992), Judge Hubbart writing for the third district determined that a defendant can wa......
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Brown v. State
...See Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979); Jones v. State, 92 So.2d 261 (Fla.1956); Flanning v. State, 597 So.2d 864 (Fla. 3d DCA 1992). Appellant also contends that his conviction for attempted manslaughter should be reversed on grounds that ambiguities in t......
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Nobles v. State, 4D99-3047.
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Smart v. State, 96-1409
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