Key v. State

• Decision Date: 25 November 2015
• Docket Number: No. 4D13–1928.,4D13–1928.
• Citation: 179 So.3d 513
• Parties: Lenist KEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

179 So.3d 513

Lenist KEY, Appellant,

v.STATE of Florida, Appellee.

No. 4D13–1928.

District Court of Appeal of Florida, Fourth District.

Nov. 25, 2015.

Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

Appellant alleges that the trial court erred in denying his motion for mistrial due to jury misconduct. Appellant also states that reversal is mandated because a testifying police officer gave an improper opinion. We find that the alleged jury misconduct does not require reversal. We affirm on this issue and write further to elaborate. We also find that the alleged improper opinion does not require reversal and we affirm without further comment.

Appellant was charged and convicted of armed sexual battery and armed kidnapping. The victim testified to an incident that occurred in 1995, while she was waiting for a bus on her way to work. The assailant took her at gunpoint to his vehicle and drove her to a wooded area where he struck her with his gun and raped her. The victim then hit the assailant with the car door and fled without her clothes. The victim testified to not knowing the assailant.

During the trial, there was evidence that a DNA test on the sperm recovered from the victim matched appellant's DNA. During closing argument, the defense argued that the sex between appellant and victim was consensual and further argued that the victim was not credible.

Before deliberations, the court instructed the jury:

During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You are not to communicate with any person outside the jury about this case.

Until you have reached a verdict you must not talk about this case in person or through the telephone, writing, or electronic communication such as a blog, Twitter, email, text messaging, or any other means at all. Do not contact anyone to assist you during your deliberations. These communication rules apply until I discharge you at the end of the case.

After the jury began its deliberations and before the jury left for the day, the court instructed the jury as follows:

In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about the case, the people and places involved, or your jury service.

You must not disclose your thoughts about this case or ask advice on how to decide this case. I want to stress that this rule means that you must not use electronic devices or computers to communicate about this case including Tweeting, texting, blogging, emailing, posting information on a website or chat room or any other means at all.

Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research, look up any words, names, maps, or anything else that may have anything to do with this case. This includes reading the newspapers, watching TV, using a computer, a cell phone, the Internet, any electronic device or any other means at all to get information related to this case or the people or places involved in this case. This applies whether you're at the courthouse, at home, or anywhere else. All of us are depending upon you to follow these rules so there will be a fair and lawful resolution to this case. That would be contrary to our judicial system, which assures every party the right to ask questions about and rebut the evidence being considered against it. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violations of these instructions or any other instruction I give in this case, you must tell me by giving a note to the deputy. So, folks, here's the bottom line: There is nothing for you to talk about with anybody tonight. Go home, watch the Heat game, have dinner, but don't talk about the case. Okay? You can't use your computers to look at anything. You can't research anything. Your verdict can only be based on the law and the evidence that's been presented. Okay? So, having said that, I'm going to release you for tonight.

When the court reconvened the next day and before the jury resumed its deliberations, the state informed the trial court that an employee of the State Attorney's Office heard a conversation the previous day between two jurors, one female and one male. The employee heard one juror say something to the effect that "[w]ell, we know there was sex occurred [sic], because there was DNA—because of the DNA." Then the employee heard a juror say something to the effect of "[w]ell, it's been so long so he'll probably—the judge will probably just give him probation." The employee could not say which juror said each statement or whether the same juror made both statements.

The trial court brought in the jurors individually for questioning, including the only female juror on the panel. All the jurors said they had no conversations about the case after deliberations had ended the previous day, except for one male juror and the female juror. The male juror said he talked with the female juror about what time they were going to return the next day. He denied having any conversation about the case itself. The female juror eventually admitted to having a conversation with the male juror because she "thought it was okay to talk to the juror, one of our jurors." According to the female juror, she and the other juror agreed that sex occurred, but they were not sure whether it was consensual or not. She could not remember who brought up the subject, but she was sure no one else was around. She denied discussing probation as a potential sentence, mentioning that the incident took place in 1995, or mentioning DNA.

Appellant moved for a mistrial based on the employee's testimony that two jurors had a conversation after the trial court had instructed the jurors not to discuss the case outside the presence of other jurors. The trial court denied the motion for mistrial and stated the following:

Based on the testimony of the two jurors that in fact were seen by the elevator having a conversation about the case, the Court is going to make the following findings that there is nothing in the record to suggest that there has been an exchange of ideas that there had been any deliberations outside of the jury room.

The Defense through the whole trial has, including their closing argument, has relied on the issue that this was a consensual act. It did not appear from the testimony of the two jurors that they had any discussion other than there was any discussion at all [sic].

The Court finds that it does not rise to the level of prejudice, the motion for mistrial would be denied.

The jury found appellant guilty, and this appeal follows.

"A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review." England v. State, 940 So.2d 389, 402 (Fla.2006). "A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial." Id. at 401–02.

Although "it is axiomatic that jurors should not discuss a case among themselves prior to deliberations," this case involved an allegation that a juror or two jurors discussed a case after deliberations had begun. Johnson v. State, 696 So.2d 317, 323 (Fla.1997). In another case involving premature deliberations, the Florida Supreme Court determined that an allegation that one juror attempted to prematurely discuss the case did not warrant jury interviews because there was no evidence of any "agreement among the other jurors to disregard their oaths and ignore the law, nor does it imply that the jury was influenced by external sources or improper material." Reaves v. State, 826 So.2d 932, 943 (Fla.2002). However, where there is an allegation that multiple jurors prematurely discussed the pending case together and their opinions as to a potential verdict, there would be sufficient evidence to require questioning of the entire jury panel. Sheppard v. State, 151 So.3d 1154, 1172 (Fla.2014).

In the present case, the employee's allegations appear to have been insufficient to require jury interviews in the first place because there was no direct allegation that more than one juror discussed the case. Id. The employee could not say if more than one juror was talking. Thus, if only one juror discussed the case, then there could not be an "agreement among the other jurors to disregard their oaths and ignore the law."

But even if the jury conduct warranted juror...