Mitchell v. State
| Decision Date | 01 November 1984 |
| Docket Number | No. AW-271,AW-271 |
| Parties | Jefferson MITCHELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Henri C. Cawthon, Asst. Atty. Gen., for appellee.
Mitchell appeals from convictions of three counts involving offenses which arose out of a major disturbance at Cross City Correctional Institution where he was an inmate. We reject appellant's assertion that the trial court erred in denying his motion for judgment of acquittal on the count one charge of attempting to cause a riot under Section 944.45, Florida Statutes (1981). However, we must reverse and remand for a new trial on all three counts by reason of a juror's failure to respond truthfully to a material question propounded by defense counsel during jury selection.
Prior to allowing the attorneys to address questions directly to the prospective jurors, the trial court asked the jurors a number of questions. One of the questions was whether any of the jurors had any family member, relative or friend who was employed at the Cross City Correctional Institution. All of the jurors, including a Mrs. Newman, responded in the negative. After the trial judge completed his questioning of the jurors, he turned the voir dire over to counsel admonishing them against repetition of the areas already covered by the court. No further inquiry or comment was made during jury selection regarding any relationship between the jurors and employees at the correctional facility.
After the verdict, it was discovered by defense counsel that Mrs. Newman was the aunt of a Cross City correctional officer. 1 In fact, her nephew had been present in the courtroom during the trial assisting in security.
At the hearing on the motion for new trial, defense counsel asserted that, although he eventually used all of his peremptory challenges, he still had several challenges remaining at the time that the subject question was asked and that he would have used one of them by excusing Mrs. Newman had she given a truthful response. The trial court took testimony from Mrs. Newman who stated that she recalled being asked the subject question but responded as she did because she thought the question was limited to her immediate family. She said that she was aware that her nephew was present in the courtroom during the trial but that her relationship to him and his presence in the courtroom had no effect on her deliberations.
Trial counsel are entitled to truthful responses to questions propounded during the jury selection process. Notwithstanding Mrs. Newman's after-the-fact insistence that she thought the court was referring to her immediate family, the question was obviously not so limited. The question was framed in such a way that it should have elicited a positive response from the prospective juror who knew her nephew to be a correctional officer at the Cross City facility. The question and negative answer being both clear and straightforward, it was not incumbent upon defense counsel to explore the topic further particularly in view of the trial court's admonition of counsel to avoid repetitive questioning.
The state relies, in part, upon the Florida Supreme Court's recent decision in Lusk v. State, 446 So.2d 1038 (Fla.1984). That case is inapposite inasmuch as it dealt with the question of whether a juror was excusable for cause. The Supreme Court held that it was not error to deny the defendant's motion to excuse a correctional officer for cause on the ground, as the defendant contended, that a law enforcement position inherently creates a disability to serve as a fair and impartial juror.
The examination of a juror on voir dire has a dual purpose, namely, to ascertain whether a legal cause for challenge exists and also to determine whether prudence and good judgment suggest the exercise of a peremptory...
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