Moody v. State

• Decision Date: 07 June 2006
• Docket Number: No. 2D05-5360.,2D05-5360.
• Citation: 931 So.2d 177
• Parties: Darryl MOODY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

931 So.2d 177

Darryl MOODY, Petitioner, v. STATE of Florida, Respondent.

No. 2D05-5360.

District Court of Appeal of Florida, Second District.

June 7, 2006.

Robert A. Norgard, Bartow, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondent.

NORTHCUTT, Judge.

A jury acquitted Darryl Moody on several counts of an indictment and convicted him of a lesser-included offense on another count. When Moody moved for a new trial as to the conviction, the trial court set aside all the verdicts and then announced that it would permit the State to retry him on all the original charges. Moody has petitioned for a writ of prohibition barring his retrial. He contends that a retrial would violate his double jeopardy rights as to the charges of which he was acquitted. Moody further maintains that, because one of the acquittals absolved him of a necessary element of the charge of which he was convicted, he may not be retried on that charge, either. We agree with both assertions, and we grant the petition.

Background

Moody was charged with first-degree murder, burglary, grand theft, shooting at an occupied vehicle, and dealing in stolen property.¹ In his first trial he was convicted as charged and was sentenced to death on the first-degree murder conviction. The supreme court reversed Moody's convictions and remanded for a new trial after determining that the trial court had erred by denying Moody's motion to suppress a number of items that were later introduced as evidence against him. See Moody v. State, 842 So.2d 754, 760 (Fla. 2003). Moody was retried on the original charges, with the same trial judge presiding. The second jury found him not guilty of all charges except the homicide, for which Moody was found guilty of third-degree murder as a lesser-included offense of first-degree murder.

Thereafter, Moody filed a motion to dismiss or for arrest of judgment seeking to set aside the third-degree murder conviction because the jury had acquitted him of the grand theft that was the underlying felony for the third-degree murder offense. On the same day, Moody filed a timely motion for new trial on the ground that a juror or jurors had received evidence out of court; that a juror or jurors had failed to disclose that they had knowledge of the prior trial and of evidence that the supreme court ruled was to be excluded from the retrial; and that a juror or jurors had engaged in misconduct by discussing the case prior to deliberations.

The latter motion eventually led to interviews of the jurors by the trial judge. The judge determined that, as alleged in Moody's motion for new trial, a juror or jurors had obtained information about the case from outside the courtroom. Over the State's objection, the judge granted Moody a new trial for that reason — and for another reason that has become the focus of the proceedings thereafter: when questioned at the juror interviews, several jurors revealed that during their deliberations another juror had repeatedly accused them of being racially prejudiced. Thus, as an additional basis for ordering a new trial, the judge found that "the Defendant's right to a fair and impartial jury was impacted by a racially charged atmosphere that didn't allow for meaningful jury deliberations to take place." Having granted Moody a new trial, the judge denied his motion to dismiss or for arrest of judgment as moot.

Subsequently, the State moved the trial court to specify which offenses were subject to being retried. The motion asserted that Moody could be retried on all the original charges. "The Court has determined that meaningful jury deliberations were not able to be conducted because of the racial tension created in the jury room by a single juror," the State wrote. "Because the Court has determined that the verdicts were the result of this undue tension the verdicts should be treated as a nullity." The trial court orally denied that motion. Moody then filed a motion to dismiss in which he asked the trial court to restrict the retrial to the third-degree murder charge. Moody argued that a second retrial on the other charges would violate his double jeopardy rights because he had been acquitted of them at the first retrial.

The trial court denied Moody's motion in an order stating that Moody's second retrial on all the original charges would not constitute double jeopardy because "the verdicts were a nullity." The court posited that "the matter [is] analogous to a situation where a mistrial has occurred. After the mistrial, the case stands as if it had never been tried and the defendant is subject to being tried again on the same charges." Further, the court wrote that "[t]he Court is also mindful that the new trial granted to the Defendant was not based on prosecutorial misconduct or trial court error. Defendant sought a new trial based on juror misconduct and the State opposed that Motion. Fairness would indicate that the Defendant is subject to being tried again on the same charges."

Moody then filed the instant petition. We issued an order directing the State to show cause why the petition should not be granted, thus staying the proceeding below until further order of this court. See Fla. R.App. P. 9.100(h).

Discussion

A petition for writ of prohibition is the proper vehicle by which to challenge a ruling that permits the prosecution of a defendant in violation of his federal and Florida constitutional protections against double jeopardy. See Rohr v. State, 916 So.2d 1002 (Fla. 2d DCA 2006); Murray v. Chavies, 671 So.2d 183, 184 (Fla. 3d DCA 1996); Beebe v. Foster, 661 So.2d 401, 402 (Fla. 1st DCA 1995).

As is well known, the double jeopardy protections prohibit retrying a defendant after a jury has acquitted him of the charge. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). This principle is embodied in the procedural rules that govern criminal prosecutions in Florida's courts. For example, Florida Rule of Criminal Procedure 3.580 permits a court to order a new trial only "[w]hen a verdict has been rendered against the defendant or the defendant has been found guilty by the court[.]" (Emphases supplied.) Rule 3.640(a) provides that when a new trial is granted, it is to proceed as if no former trial had occurred "except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, the defendant cannot thereafter be prosecuted for a higher degree of the same offense or for a higher degree than that of which the defendant was convicted."

Thus, Moody's motion for new trial put at issue only his conviction for third-degree murder. The trial court's attempt to order a new trial on charges for which verdicts were rendered in Moody's favor was not authorized by rule 3.580, was expressly forbidden by rule 3.640, and was in violation of Moody's constitutional right to be free of double jeopardy. The court's departure from these important strictures cannot be justified by any of the rationales it advanced.

The trial court's assertion that juror misconduct nullified the verdicts of acquittal is unsupported in Florida law. Indeed, this proposition is so novel that we have discovered no Florida case that addresses it one way or the other. But the notion is clearly at odds with rule 3.600, which sets forth the grounds upon which a new trial may be granted. Subsection (b)(4) of the rule provides that the court shall grant a new trial if it is established that any juror was guilty of misconduct, "providing substantial rights of the defendant were prejudiced thereby." Obviously, this proviso is inconsistent with the trial court's theory that a verdict finding the defendant not guilty is nullified by juror misconduct.

In response to our order to show cause why Moody's petition should not be granted, the State has submitted several Louisiana cases for the proposition that "where a non-curable structural defect occurs during a trial, the verdict is a nullity and Double Jeopardy does not bar retrial." It is telling that none of those decisions were predicated on juror misconduct. See State v. Goodley, 423 So.2d 648 (La.1983) (holding that double jeopardy principles did not preclude retrial for first-degree murder when first jury had purported to convict the defendant of lesser-included offense of manslaughter by less than unanimous vote); State v. Langley, 896 So.2d 200 (La.App.2004) (holding that judge's absences during critical aspects of trial nullified the proceedings and the resulting verdict); State v. Norman, 799 So.2d 619 (La.App.2001) (holding that verdict convicting defendant of both theft and illegal possession of stolen items was an illegal verdict in violation of double jeopardy); State v. Self, 772 So.2d 337 (La.App.2000) (holding that double jeopardy did not bar defendant's prosecution after his first conviction was overturned on appeal because the jury had found him guilty by a less than unanimous verdict).

Even so, the State urges us to apply the Louisiana courts' nullification theory to instances of juror misconduct consisting of open expressions of racial bias during jury deliberations. The State argues that the Florida Supreme Court has "established a bright line with regard to the open interjection of racial bias into jury deliberations." Indeed, the supreme court has held that it is an overt act of misconduct for jurors to openly appeal to racial biases during deliberations. See Marshall v. State, 854 So.2d 1235, 1241 (Fla.2003); see also State v. Davis, 872 So.2d 250 (Fla. 2004); Powell v. Allstate Ins. Co., 652 So.2d 354 (Fla.1995). But in the context of a defendant's double jeopardy protections, an acquittal establishes an even brighter line: "[T]here is no exception [to the prohibition against trying the person again for the same offense]...