Merchant v. State
| Decision Date | 06 April 2016 |
| Docket Number | No. 3D13–3119.,3D13–3119. |
| Citation | 201 So.3d 146 |
| Parties | Dwaine MERCHANT, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andrew Paul Kawel, for appellant.
Pamela Jo Bondi, Attorney General, and Jay Silver, Assistant Attorney General, for appellee.
Before EMAS, FERNANDEZ and SCALES, JJ.
EMAS
, J.
Appellant, Dwaine Merchant (“Merchant”), appeals from a final judgment of conviction and sentence for first-degree murder following a retrial. Merchant contends that the trial court violated his double jeopardy rights by declaring a mistrial in his first trial, without Merchant's consent and in the absence of manifest necessity, thus barring a retrial. We agree, and for the reasons that follow, we vacate the judgment and sentence, and reverse and remand this cause with instructions to enter an order discharging Merchant on Count One of the indictment.
The State indicted Merchant for first-degree murder (Count One) and attempted first-degree murder (Count Two). The first trial began in August 2013. The jury venire was comprised of 50 potential jurors, including both Kira Criado (“Kira”) and Kevin Criado (“Kevin”). At the commencement of the jury selection process, the trial court introduced the court staff, the attorneys, and the defendant. The attorneys were then asked to read to the jury venire a list of potential witnesses, to acquaint the jurors with the names of all persons who might testify at trial. The attorneys then read a list containing the names of eighteen witnesses (and, where appropriate, the police agency the witness worked for), after which the court stated:
Now you have met people here. You've heard names. Perhaps you've looked around the room. Does anyone recognize anyone else or think they know anyone or recognize any of the names? If so, just raise your hand.
One juror raised his hand and indicated that he might know one of the potential witnesses whose name was read. The court questioned the prospective juror to determine how the juror might know this witness, after which the court told the entire venire:
The record does not reflect that Kira or Kevin raised their hand or indicated that they knew each other.
Kira and Kevin's written answers to juror questionnaires indicated they have the same surname (Criado), are two years apart in age (19 and 21, respectively), live in Kendall, have lived in Miami–Dade County for their entire lives, have no children, and have an aunt who is an attorney.
During jury selection, the State questioned Kira, referring to her as Ms. Criado. Noting that Kira indicated on her questionnaire that her aunt is an attorney, the State asked what type of law her aunt practiced. Kira responded that her aunt is a domestic violence prosecutor.
Thereafter, the State questioned Kevin, referring to him as Mr. Criado. The State elicited that Kevin lived with his parents in Kendall, had not graduated from high school or college, and was unemployed. The State asked: “Do you know [what] type of law you—I think we already asked this; what type of law your aunt practices?” Kevin responded that his aunt is a domestic violence prosecutor.
At no time during jury selection did the State, the defense or the trial judge ask Kira or Kevin whether they were related in any way. The parties accepted Kira as a juror, and subsequently accepted Kevin as one of three alternate jurors. The trial court swore the jury and, before releasing them for the evening, reminded them not to communicate with anyone about the case or the proceedings.
The next morning, before opening statements, the court confirmed the following: no juror had discussed the case with anyone; no one had tried to speak with any juror about the case; no juror had spoken with another juror about the case; and no juror had conducted independent research. When asked, all jurors answered “no” to these questions. The trial court delivered this same instruction to the jury before each lunch break and evening recess, and began the next day's proceedings by confirming that each juror had followed this instruction.
At the close of the evidence, the court instructed the jury and then sent the jury (which included Kira) to the jury room to begin deliberations. The court subsequently excused the alternate jurors (including Kevin). During deliberations, the jury sent out a note indicating it was deadlocked. The parties and the trial court agreed to advise the jury to continue deliberating. The jury then sent a second note indicating it had reached a result on Count Two, but remained deadlocked on Count One. After a discussion with the State and defense, the court again instructed the jury to continue its deliberations.
After the jury deliberated for three and a half hours, the court reconvened to notify the parties that the jury sent a third note indicating it was deadlocked. At that time, the court also raised the following issue:
This transcript excerpt represents the entirety of the discussion that led to the court's declaration of a mistrial. After declaring a mistrial, the jury was brought back into the courtroom. The court discharged the jury, asked Kira to remain, brought Kevin into the courtroom, and addressed them both. The court advised them it declared a mistrial upon learning they were brother and sister and acknowledged that although it asked the jury venire whether they knew other members of the venire, it was giving them the benefit of the doubt that they possibly didn't hear the questions. The court further told the siblings that their type of relationship is inherently conflicting, highlighting the “fact” that they rode to the courthouse together. Neither Kira nor Kevin was provided an opportunity to make any statement, answer any questions, or respond to the trial court's remarks.
Thereafter, the case was reset for trial. Merchant filed a motion to dismiss the indictment, contending that he did not consent to the mistrial, that there was no manifest necessity for the trial court's sua sponte declaration of a mistrial, and that retrial was therefore barred by double jeopardy.
In opposition, the State contended that by not affirmatively objecting to the mistrial, and in absence of demonstrable bad faith by the State, Merchant had essentially consented to the mistrial. The State did not agree with the defense's characterization that the court declared a mistrial sua sponte.
The trial court denied Merchant's motion, explaining:
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State v. Jones
...the accused in a case has a right to be tried by that particular tribunal. This right, however, is not absolute." Merchant v. State, 201 So. 3d 146, 151 (Fla. 3d DCA 2016) (citing Thomason, 620 So. 2d at 1237 ).Unlike the situation in which the trial has ended in an acquittal or conviction,......