Kopsho v. State

Decision Date24 May 2007
Docket NumberNo. SC05-763.,SC05-763.
Citation959 So.2d 168
PartiesWilliam Michael KOPSHO, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.


William Michael Kopsho was indicted, tried, and convicted of armed kidnapping and first-degree murder of his wife, Lynne Kopsho. Kopsho appeals his judgments of conviction of first-degree murder and armed kidnapping and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Based on our determination that the trial court committed reversible error in the denial of a challenge for cause of a potential juror, we reverse the convictions and vacate the sentence.

Kopsho asserts that the trial court erred in denying defense counsel's challenge for cause against prospective juror David Mullinax. Kopsho argues that Mullinax should have been excused for cause based on his stated views regarding a defendant's right to remain silent. "Where an appellant claims he was wrongfully forced to exhaust his peremptory challenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established." Conde v. State, 860 So.2d 930, 941 (Fla.2003). Based on the record before us, we conclude that Kopsho has satisfied both prongs of that standard.


The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). "In evaluating a juror's qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror." Parker v. State, 641 So.2d 369, 373 (Fla.1994). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So.2d 426, 428 (Fla.1995). The trial court has broad discretion in determining whether to grant a challenge for cause, and the decision will not be overturned on appeal absent manifest error. Overton v. State, 801 So.2d 877, 890 (Fla.2001).

The question before this Court is whether the trial court should have granted a cause challenge based on Mullinax's equivocal responses when he was asked if he could be impartial if Kopsho exercised his right not to testify. As noted in Busby v. State, 894 So.2d 88, 96 (Fla.2004), the mere fact that a juror gives equivocal responses does not disqualify that juror for service. The question is whether the juror's responses were sufficiently equivocal to generate a reasonable doubt about his fitness as a juror. Id.

During voir dire, the following exchange occurred between Mullinax and defense counsel:

MR. MILLER [defense counsel]: . . . .

Is there anyone on this panel who is going to have a difficult time returning a verdict in this case without hearing from my client?

JURY VOIR [D]IRE: (no response)

MR. MILLER: I mean, it's okay if you have a problem with that. Just because the law says—I am getting back to what I talked about earlier on.

This is an extremely important point. Just because the law says that you cannot presume anything—I am not telling you whether or not you are going to hear from Mr. Kopsho.

Again these are hypothetical questions. But if you did not, the Court is going to instruct you that you can't draw anything from that. That that is irrelevant. Should not come into your thinking.

My question is: Does anybody have a problem with that? Does anybody think that the law should be different?

MR. MULLINAX: I do. I think he should have to.


MR. MULLINAX: I know the law is not that way, but I think so.

MR. MILLER: Now again, a more difficult, philosophical question. You know setting aside thoughts like that are tough to do. Can you do it?

MR. MULLINAX: I don't know.

MR. MILLER: You don't know?

MR. MULLINAX: Whether he is guilty or not, you have to stand before your maker. You are going to have to give an account for what you did here. That is what I think the law should be.

MR. MILLER: I understand that. And I respect that. You know that. I told you, and I meant it. I want to hear what you really feel deep down in here. (indicating)

But what I am asking is: Is there a possibility feeling that way, you would not be able to set that aside and that you would have trouble deliberating this case and not considering that in deliberations if Mr. Kopsho chose not to testify?

You don't know? In other words, you are not sure?

MR. MULLINAX: I am not sure.


MR. MULLINAX: But I would like to hear his side.

MR. MILLER: That is why I asked. No wrong answers. I respect that.

MR. HANSON [another venire person]: I agree.

MR. MULLINAX: Unless you have an eyewitness account, everything else is hearsay, according to the way I believe. It's all hearsay, unless you have a witness that saw him do it.

The only two people who knows what happened is him and the person who died, unless he can give an account that it did not happen or a way it happened.

Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel.

The defense moved to strike Mullinax for cause because Mullinax was not certain that he could deliberate impartially in the event that Kopsho chose not to testify. The trial court denied the motion, explaining:

THE COURT: At no time did [Mullinax] indicate that he would be anything other than fair and impartial. Actually, he couched his comment by saying: Unless you have eye witness statements that he killed someone, I would like to hear his side of the story. Correct me if I'm wrong counsel for the prosecution, but do you not have such statements?


THE COURT: I recognize also, counsel for the prosecution, do you intend to introduce the videotaped statement on Mr. Kopsho after his arrest?


THE COURT: In which case, Mr. Kopsho's version of events would also be before the jury. But I did not find his answers to indicate he would not be impartial. Accordingly the challenge for cause is denied.

Mullinax's equivocation regarding his ability to be impartial cannot be distinguished from the juror comments at issue in Overton v. State, 801 So.2d 877 (Fla. 2001). In Overton, this Court found that the trial court erred in refusing to dismiss for cause a juror who expressed his belief that the defendant should testify. Specifically, when questioned by defense counsel, juror Russell stated:

I always think if a person's innocent they should get up on that stand and speak for themselves. That's the way I believe. But also, I understand what the Judge said, too. It's like confusing to me . . . . But in all honesty, that's what I really believe. I believe a person should get up there and say, I didn't do this.

Id. at 890. Juror Russell was then further questioned by the trial court:

THE COURT: When we were out there in the open group there, you had some reservations about the Defendant's right to remain silent.


THE COURT: What if, as part of the evidence, you were not presented with testimony from the Defendant?

MR. RUSSELL: Well, I will—I will be able to follow your instruction without—

THE COURT: meaning if I sit here and say he doesn't, the Defendant

MR. RUSSELL: If he doesn't testify and you say that he doesn't have to, then I respect that.

THE COURT: Not only doesn't he have to, but it can't be considered as evidence of guilt.

MR. RUSSELL: Right, I would— right.

THE COURT: It cannot be used in any adverse way against him.


THE COURT: It cannot come into your deliberations whatsoever.


THE COURT: Yesterday you had reservations about that.

MR. RUSSELL: Well, that's—right, that's the way I always feel about it when someone doesn't take the stand, I figure they've got something to hide. That's the way I've always believed.


MR. RUSSELL: But I can shut that out. If you tell me to shut it out, I still shut it out.

Id. at 891 (emphasis deleted). This Court held that based on the totality of the juror's responses, the juror's assurance that he would be able to follow the law did not relieve doubt regarding his partiality. Id. at 892.

In light of this precedent and the record on appeal, we cannot agree with the trial judge's conclusion that "[a]t no time did [Mullinax] indicate that he would be anything other than fair and impartial." Like juror Russell in Overton, Mullinax expressed a belief that the law should require a defendant to testify. Most importantly, when asked if he could set aside his personal beliefs while deliberating, Mullinax repeatedly answered that he was not sure if he could disregard a defendant's decision not to testify. Mullinax never stated that he would be able to deliberate impartially if seated on Kopsho's jury were Kopsho to decide not to testify. Mullinax's consistently equivocal responses raise reasonable doubt about his fitness as a juror.

Furthermore, the trial judge's conclusion that there was no reasonable doubt regarding Mullinax's impartiality because the prosecution would be admitting Kopsho's taped statements is not a correct application of law. This Court has repeatedly held that the presumption of innocence is defeated if "a juror is taken upon a trial whose mind is in such condition that the accused must produce evidence of his innocence to avoid a conviction." Overton, 801 So.2d at 891 (quoting Singer v. State, 109 So.2d 7, 24 (Fla.1959) (quoting Powell v. State, 131 Fla. 254, 175 So. 213, 216 (1937))). Whether the defendant's "version of events" will ultimately be...

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    ...the decision will not be overturned on appeal absent manifest error. Overton v. State, 801 So.2d 877, 890 (Fla.2001). Kopsho v. State, 959 So.2d 168, 170 (Fla. 2007). We have considered Smith's challenges with regard to each of the nine jurors and agree with Smith that the trial court erron......
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