Marshall v. State

CourtCourt of Appeal of Florida (US)
Citation664 So.2d 302
Docket NumberNo. 94-2407,94-2407
Parties20 Fla. L. Weekly D2664 Paul MARSHALL, Appellant, v. The STATE of Florida, Appellee.
Decision Date06 December 1995

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Fleur J. Lobree, Assistant Attorney General, for appellee.

Before NESBITT, JORGENSON and GERSTEN, JJ.

JORGENSON, Judge.

Paul Marshall appeals from an adjudication of guilt and sentence for attempted second degree murder. For the following reasons, we reverse and remand for a new trial.

Defendant was convicted of attempted second degree murder. One week after the jury returned its verdict and was discharged, defendant filed a motion for new trial and a motion for juror interview, alleging juror misconduct. In support of these motions defendant submitted the affidavit of Cindy Munson, a trial witness for the defense and defendant's girlfriend.

In her affidavit and sworn testimony at the hearing on defendant's motions, Ms. Munson alleged as follows. She visited defendant at the Monroe County Jail both before trial and during a two-day recess between juror selection and the remainder of the trial. While on the witness stand she vaguely recognized one of the jurors, Johanna Giorgio. Later after jury deliberations had begun, Munson's memory of juror Giorgio improved, prompting her to inform defense counsel that "I believe she is a volunteer at the Monroe County jail." Finally, after the trial had ended, Munson realized that Giorgio was the worker who had escorted her to the visitation booth during her visits with defendant, including her visit on the eve of trial after Giorgio had been selected as a juror.

There is no dispute that juror Giorgio was, in fact, a volunteer working on the eve of trial at the jail where defendant was incarcerated; the state does not contest that Giorgio, after being sworn in this case, escorted Ms. Munson to the visitation booth to speak with defendant and retrieved Ms. Munson at the end of her visit.

Juror Giorgio's work at the jail had not been revealed on voir dire, in part because neither the court nor counsel asked about the veniremembers' connection to law enforcement. No one responded to the court's initial question whether anyone knew defendant from a business or social relationship. The court then requested that the venire provide a personal history, including employment. Juror Giorgio stated that she was a restaurant manager in Key West and was originally from Maryland, and did not reveal her volunteer jail work. When another potential juror stated that her "whole immediate family [was] in law enforcement so [she did not] know if that would prejudice [her]," juror Giorgio remained mute.

After they were seated, the court admonished the jurors to have no discussions with the defendant, counsel, or witnesses:

From this point everything that you know about this case should come to you from this courtroom in the presence of both of the attorneys, the Defendant and myself.

You should not conduct any investigation of your own about the case. Everything which you need to know in considering your verdict will be presented in this courtroom.

....

Now, in terms of discussions with people you can have no discussions with any of the witnesses, either of the attorneys, or the Defendant about any subject so should you run into one of them in the elevator or around in the halls or byways of the courthouse here and they don't speak to you they seem to ignore you, they aren't being rude. They are just playing by the rules of the game.

The court then recessed until two days later.

In the interim, Munson visited defendant, with juror Giorgio as her escort. 1 The trial reconvened the next day with Giorgio in the jury box and defendant at the defense table. The trial judge reiterated his admonitions to the jury:

During ... recesses you are not to discuss this case with anyone or allow anyone to say anything to you or in your presence about this case.

If anyone attempts to do that, ask them to stop and tell them you are on the jury trying the case. If they insist, leave them at once and report the matter to one of the bailiffs, who will inform me.

The case must be tried by you only upon the evidence that has been presented in this courtroom in your presence, and in the presence of the attorneys, the defendant and myself.

Accordingly, jurors must not conduct any investigation of their own. You must not visit any of the places that are described in the evidence and you must not read or listen to any news reports about this.

Further, you must not discuss this case with any person. And you must not speak with the witnesses, the attorneys or the defendant, about any subject until your deliberations are final.

Munson, who was not present during voir dire and had been excluded from the courtroom with all other witnesses prior to her testimony, took the witness stand later that day. During the trial Giorgio never disclosed her jail contact with Munson or defendant. Afterwards, the jury was sent to deliberate, and the defense began to identify Giorgio's status. The jury then returned a guilty verdict and was discharged. Defendant subsequently filed his motions for a new trial and juror interview, which the court denied.

We reverse and hold that juror Giorgio's failure to disclose her contact with defendant and his witness constituted prejudicial juror misconduct which deprived defendant of his Sixth Amendment right to a fair trial. Juror Giorgio's own misconduct obviates the need to address whether defendant had earlier waived his right to contest her presence on the panel by his lack of diligence in discovering her connection with the prison at voir dire. 2 When the connection deepened and the prejudice was enhanced by the post-voir dire visitations, defendant acquired the further right to juror Giorgio's timely disclosure of this contact.

A juror's breach of her duty of disclosure is misconduct which entitles a defendant to a new trial where prejudice is established. See Fla.R.Crim.P. 3.600(b)(4) (juror misconduct is a basis for a new trial where the substantial rights of the defendant were prejudiced thereby). It is possible that at the time of voir dire juror Giorgio may not have recognized the defendant from the prison. However, it is unfathomable that even with the barest observational faculties sufficient to sit on a jury, Giorgio would fail to later connect the case before her with her jail work. She viewed the defendant in high relief as the principal in the case and then saw and discussed him by name the next day at the prison. Then, after escorting Ms. Munson to visit the defendant, Giorgio saw her testify the following day. These events evoked juror Giorgio's duty to disclose her contacts with defendant or witnesses under the trial judge's admonition to avoid such contacts. Giorgio breached that duty and thereby prejudiced defendant's fair trial rights.

Prison workers in general are not automatically disqualified from jury service. State v. Williams, 465 So.2d 1229 (Fla.1985). But this case is extreme. Not only was juror Giorgio a worker at a defendant's jail who had contact with him at the jail, but she acquired knowledge of material facts not in evidence--that a defense witness had spent the maximum allowed visitation time conferring with the defendant on the eve of her testimony. Such information could bear on the juror's determination of the credibility of witnesses, which was at issue in this case.

Each of the three individual elements of juror Giorgio's connection to the case, (1) employment at a correctional facility 3 (2) contact with the defendant, 4 and (3) knowledge of material facts not in evidence, 5 may not independently require automatic disqualification. However, prior Florida cases do not address the combination of these elements--the spectre of a juror's substantive contact with the defendant in prison. Compare Williams (noting that state prison employees are not automatically disqualified from jury service but not indicating whether the jurors challenged in that case were employed at defendant's prison); Lusk v. State, 446 So.2d 1038 (Fla.) (where the challenged jurors worked at a different prison), cert. denied, 469 U.S. 873, 105 S.Ct....

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9 cases
  • Lebron v. State
    • United States
    • United States State Supreme Court of Florida
    • August 30, 2001
    ...court his suspicion that the accused had murdered the juror's friend was juror misconduct, warranting a new trial); Marshall v. State, 664 So.2d 302 (Fla. 3d DCA 1995) (holding that a juror's failure to disclose that she volunteered at the jail where the defendant was held constituted juror......
  • NICHOLAS v. State of Fla.
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 2010
    ...civil case, the three-part test also applies in criminal cases. See Murray v. State, 3 So.3d 1108, 1121-22 (Fla.2009); Marshall v. State, 664 So.2d 302, 304 n. 2 (Fla. 3d DCA 1995). An examination of the three prongs of the De La Rosa test will be instructive for the analysis of the legal i......
  • Nicholas v. State Of Fla.
    • United States
    • Court of Appeal of Florida (US)
    • July 28, 2010
    ...case, the three-part test also applies in criminal cases. See Murray v. State, 3 So. 3d 1108, 1121-22 (Fla. 2009); Marshall v. State, 664 So. 2d 302, 304 n.2 (Fla. 3d DCAPage 29 1995). An examination of the three prongs of the De La Rosa test will be instructive for the analysis of the lega......
  • Harvey v. State
    • United States
    • Court of Appeals of Texas
    • November 20, 2003
    ...(veniremember deliberately concealing her relationship to government attorney in RICO case, biased per se); Marshall v. State, 664 So.2d 302 (Fla.Dist.Ct.App.1995) (juror who worked at defendant's jail and acquired knowledge of facts not in evidence, presumptively prejudiced); and State v. ......
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