Lavado v. State

• Decision Date: 28 May 1985
• Docket Number: No. 83-1050,83-1050
• Parties: 10 Fla. L. Weekly 1322 Henry LAVADO, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 917

469 So.2d 917

10 Fla. L. Weekly 1322

Henry LAVADO, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 83-1050.

District Court of Appeal of Florida,

Third District.

May 28, 1985.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Randi Klayman Lazarus, Asst. Atty. Gen., for appellee.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

PER CURIAM.

After an armed robbery of a pharmacy the appellant was charged with the armed robbery and possession of narcotics. When the cause came on for trial, during voir dire, the defense counsel informed the prospective jurors that specific intent was an essential element of armed robbery causing the trial judge to state that it was not proper to go into the law on jury selection. The trial court stated that counsel could inquire as to the juror's bias against drinking in general. Thereupon defense counsel proffered that he was attempting to elicit answers dealing with the juror's ability to entertain or accept voluntary intoxication as a defense. The trial court refused to permit him to do so. On the final morning of the trial a local radio station on their newscast referred to the defendant's trial and the fact that the state had dropped the drug charges and was only trying the defendant for robbery. As the jury had not been sequestered before the trial began the defense counsel requested that the trial court question the jurors to determine if they had heard any radio newscasts about the trial. The request was denied.

We find no abuse of discretion in the trial court refusing to permit the prospective jurors to be interrogated as to a defense. A prospective juror's bias or prejudice may be elicited through specific questions and answers but their disposition as to whether or not they would entertain a particular defense is not appropriate. Dicks v. State, 83 Fla. 717, 93 So. 137 (1922); Saulsberry v. State, 398 So.2d 1017 (Fla. 5th DCA 1981). In Dicks v. State, supra, the Supreme Court stated the following:

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"The rule governing the scope of the inquiry into the qualifications of a person called for jury duty, is thus laid down in 16 R.C.L. 281: "It is a rule that the examination of persons called to act as jurors is limited to such matters as tend to disclose their qualifications in that regard, under the established provisions and rules of law; and hypothetical questions are not competent, when their evident purpose is to have the jurors indicate in advance what their decision will be under a certain state of the evidence, or upon a certain state of facts, and thus possibly commit them to certain ideas or views when the case shall be finally submitted to them for their decision."

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When they give an oath to follow the court's instructions they are required to follow the law as given. Rule 3.360 Florida Rules Criminal Procedure; Sections 1.01, 2.05(1) Florida Standard Jury Instructions in Criminal Cases. The court, in the instant case, gave the appropriate instructions on voluntary intoxication and there is no showing that the jury, having been sworn to follow the instructions, failed to do so. Therefore no error has been made to appear.

As to the alleged prejudicial radio broadcast, the nature of the prejudice was never brought to the attention of the trial court and we find no abuse of discretion under the circumstances in refusing to poll the jury. Copeland v. State, 457 So.2d 1012 (Fla.1984); Murphy v. State, 252 So.2d 385 (Fla. 3d DCA 1971) affirmed Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

Therefore for the reasons above stated the conviction under review be and the same is hereby affirmed.

BASKIN, Judge (concurring).

I concur in the majority opinion which I believe correctly states the applicable law. Defendant Lavado complains that although the trial court permitted inquiry concerning the jurors' biases against drinking, it did not allow questioning as to the jurors' ability to accept voluntary intoxication as a defense. However, the court permitted counsel to ask whether the jurors would follow the court's instructions on the law; this line of questioning encompasses the inquiry sought by counsel and warrants rejection of defendant's argument. My concurrence is based on the adequacy of the permitted inquiry and the absence of an abuse of discretion in limiting counsel's pretrial statements as to the law.

For these reasons, I concur in affirmance.

DANIEL S. PEARSON, Judge, dissenting.

If he knew nothing else about the prospective jurors, the single thing that defense counsel needed to know was whether the prospective jurors could fairly and impartially consider the defense of voluntary intoxication. Despite this, the majority approves a ruling which precluded counsel from asking the prospective jurors about their bias or prejudice against this defense. As the sole authority for its position, the majority refers to the distinguishable and, indeed, already distinguished, ¹ case of Dicks v. State, 83 Fla. 717, 93 So. 137 (1922), and to some generalization about jurors obeying their oaths to follow the court's instructions on the law. I believe the majority is as wrong as it would have been had it approved a ruling which denied counsel the right to question prospective jurors altogether.

During the questioning of the prospective jurors, Lavado's counsel, seeking to learn of their attitudes about voluntary intoxication as a defense to the charge, stated as a predicate to his inquiry that specific intent was an essential element of the crime of robbery. The trial court advised him that it was "not proper on a jury selection to go into law," but permitted counsel to ask about biases against drinking in general. Counsel said that it was the prospective jurors' attitudes about voluntary intoxication as a defense to a crime, not their attitudes about drinking, that he sought to elicit. ² Counsel told the court the nature of his intended inquiry:

"One of the elements for the crime is that the defendant have specific intent to deprive the owner of his property and one of the defenses to the crime of robbery, especially and specifically this element, is that of voluntary intoxication. I was going to ask the jury questions, elicit answers, dealing with their ability to entertain or accept the premise of voluntary intoxication as a defense."

The trial court refused to allow the proposed inquiry. This ruling, in my view, was error of the most basic and harmful sort.

It is apodictic that a meaningful voir dire is critical to effectuating an accused's constitutionally guaranteed right to a fair and impartial jury. See Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).

"Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 39 L.Ed. 1033, 15 S.Ct. 951 (1895). Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts." Rosales-Lopez v. United States, 451 U.S. at 188, 101 S.Ct. at 1634, 68 L.Ed.2d at 28 (footnote omitted).

What is a meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried. The scope of voir dire therefore "should be so varied and elaborated as the circumstances surrounding the juror under examination in relation to the case on trial would seem to require ...." Pinder v. State, 27 Fla. 370, 375, 8 So. 837, 838 (1891). See Moody v. State, 418 So.2d 989, 993 (Fla.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1213, 75 L.Ed.2d 451 (1983); Lewis v. State, 377 So.2d 640, 642-43 (Fla.1979). Thus, where a juror's attitude about a particular legal doctrine (in the words of the trial court, "the law") is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions. Pait v. State, 112 So.2d 380 (Fla.1959) (no error where prosecutor propounded question to prospective jurors on voir dire concerning their attitudes toward a finding of guilt on a homicide charge based solely on a theory of felony murder); Pope v. State, 84 Fla. 428, 438, 94 So. 865, 869 (1922) (no error where prosecutor explained legal doctrine of criminal responsibility of aiders and abettors to prospective jurors and then asked them if they would render a verdict of guilty if all necessary elements for conviction under doctrine present). ³ See Jones v. State, 378 So.2d 797 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1114 (Fla.1980) (error to preclude defense counsel from inquiring about prospective juror's ability to accept the court's charges on the presumption of innocence, the State's burden of proof as to each element of the offense, and the defendant's right not to testify, since defense counsel had a right to ascertain if any prospective juror had a prejudgment that would not yield to the law as charged by the court). See also United States v. Blount, 479 F.2d 650 (6th Cir.1973).

Moreover, where, as here, the intended defense is voluntary intoxication, there are even stronger reasons why a meaningful voir dire must include questions about the jurors' attitudes towards the defense. Like the defense of insanity, the defense of voluntary intoxication suggests that the accused was incapable of forming or entertaining the intent necessary to commit the crime charged. Both defenses concede the commission of the acts and request the jury to excuse the conduct. ⁴ Because, as is well known, such defenses are...