Scoggins v. State

• Decision Date: 21 January 1999
• Docket Number: No. 90,627.,90,627.
• Parties: James SCOGGINS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

726 So.2d 762

James SCOGGINS, Petitioner, v. STATE of Florida, Respondent.

No. 90,627.

Supreme Court of Florida.

January 21, 1999.

Richard L. Jorandby, Public Defender, and Christine Sciarrino and Peggy Natale, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, and Celia Terenzio and Ettie Feistmann, Assistant Attorneys General, West Palm Beach, Florida, for Respondent.

ANSTEAD, J.

We have for review Scoggins v. State, 691 So.2d 1185 (Fla. 4th DCA 1997), which expressly and directly conflicts with the decision in Rodriguez v. State, 559 So.2d 678 (Fla. 3d DCA 1990). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we approve the opinion below.

PROCEEDINGS BELOW¹

Following a jury trial, petitioner James Scoggins was convicted of possession of cocaine. During deliberations, however, the jury notified the trial court that it could not reach a verdict, stating, "We do not have a unanimous jury at this time and those who are in disagreement feel that they will not change their minds. What should we do?" Outside the presence of the jury, the trial judge asked each counsel if they objected to his questioning the jury as to its numerical division on the verdict. Neither counsel objected. The judge then addressed the jury, whereby the following colloquy occurred:

COURT: ... [D]o you think further deliberations would help at all?

[FOREPERSON]: There are those who feel that further deliberations would not help them.

COURT: Okay. Can I assume by that, that more than one person—the split is more than one person?

[FOREPERSON]: Yes.

COURT: So, in other words, at least four to two?

[FOREPERSON]: Yes.

COURT: Okay. And what about if I reset the deliberations until tomorrow, have you come back, you think that would serve any useful purpose?

[FOREPERSON]: You have to do what you feel is right.

COURT: Really, I don't want—this is a very sensitive area, because I'm not allowed to make inquiry about a jury's deliberations, just not allowed to. So I can't ask you more than that.

If you as a foreperson are advising me that you think in any way that by resetting this until tomorrow, that could help this jury come to a decision, I will do it. If you think there's no way—if you want to talk to the other jurors, and if you think there's no way, then I'll declare a mistrial.

[FOREPERSON]: Am I allowed to express my personal feelings?

COURT: No.

[FOREPERSON]: Perhaps we should go back into the room, just decide whether or not we should meet tomorrow, and then come back out again.

After retiring to discuss the matter, the jury decided to return the next day, and, after further deliberations, it found Scoggins guilty of the possession charge.

On appeal, Scoggins argued that it was fundamental and reversible error for the judge to inquire into the jury's numerical division regardless of the lack of objection. The Fourth District, in an opinion by Judge Gross, disagreed, holding that although it was error for the judge to inquire into the jury's numerical division, such questioning did not rise to the level of fundamental error. Scoggins, 691 So.2d at 1188-89. In so holding, the district court expressed its disagreement with the holding in Rodriguez, which reversed the defendant's conviction under similar circumstances, relying upon the Supreme Court's decision in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). See Rodriguez, 559 So.2d at 679

.

BRASFIELD

In Brasfield, the defendant was convicted in federal court for conspiracy to possess and transport intoxicating liquors, and the Supreme Court overturned the conviction because the trial judge inquired into the numerical split of the jury during its deliberations. Although the judge did not make reference to which number favored conviction, the Court concluded that such inquiry was error, requiring reversal:

We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. 135.

The Supreme Court considered a similar, but separate, issue in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), in resolving whether the trial court's combined acts of giving a supplemental charge and of polling the jury as to whether further deliberations would be helpful in reaching a verdict, unduly coerced the jury into finding the defendant guilty:

Although the decision in Brasfield was an exercise of this Court's supervisory powers, it is nonetheless instructive as to the potential dangers of jury polling.

Petitioner's attempt to fit the instant facts within the holding of Brasfield is, however, unavailing. Here the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question of whether further deliberations might assist them in returning a verdict. There is no reason why those who may have been in the minority on the merits would necessarily conclude that further deliberation would not be helpful, or that those in the majority would necessarily conclude otherwise. The two questions are clearly independent of one another. We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated: "[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division."

. . . .

We hold that on these facts the combination of the polling of the jury and the supplemental instruction was not "coercive" in such a way as to deny petitioner any constitutional right. By so holding we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body. For the reasons stated we hold that there was no coercion here.

Id. at 239-41, 108 S.Ct. 546 (citations and footnotes omitted). Hence, Brasfield and Lowenfield resulted in different outcomes while treating related, but distinguishable, circumstances.

While Brasfield clearly condemned the practice of inquiring into the jury's numerical division and found such error to automatically mandate reversal without consideration of any other circumstances, the opinion was not grounded on any constitutional provision. Rather, as noted in Lowenfield, the decision was an exercise of the Supreme Court's supervisory powers over the federal courts. 484 U.S. at 240, 108 S.Ct. 546. As such, Brasfield's per se reversal approach is not binding on the states. See Cornell v. Iowa, 628 F.2d 1044, 1048 (8th Cir.1980)

(holding that "under the principles of federalism," the better rule is to leave the decision of whether to allow inquiry into the jury's numerical division to the "supervising state court") (quoting Ellis v. Reed, 596 F.2d 1195, 1200 (4th Cir.1979); State v. Roberts, 131 Ariz. 513, 642 P.2d 858, 861 (1982); State v. Rickerson, 95 N.M. 666, 625 P.2d 1183, 1185 (1981)). Nevertheless, although not constrained by the rule in Brasfield, we still must determine whether we should adopt its holding for Florida courts. For the reasons well articulated in Judge Gross' opinion, we decline to adopt the per se approach of Brasfield.²

INQUIRY OF JURY

Consistent with Brasfield, the courts in this state which have addressed the issue hold that it is error for the trial judge to seek the jury's numerical division on the merits of the verdict when the jury has reached an impasse. See Rodriguez, 559 So.2d at 679

; McKinney v. State, 640 So.2d 1183 (Fla. 2d DCA 1994).³ In Rodriguez, the following colloquy occurred:

THE COURT: ... Ladies and gentlemen, you have been deliberating since about twenty to five. It's twenty after seven. This has been a three-witness case. Can I ask of you, please, can you tell me how far apart you are. I'm not asking whether you're voting guilty or not guilty, how far apart you are. In other words, five/one, four/two, three/three, that type of situation?

[THE FOREMAN]: At the present time we're probably four/two and it's not closed at this point.

. . . .

[A JUROR]: Your Honor, is there any way we can have the court reporter replay some of what we have heard?

THE COURT: I have already ruled on that.

559 So.2d at 679. Fifteen minutes after this colloquy occurred, the Rodriguez jury returned a verdict of guilty. The third district opinion quoted the rule in Brasfield and held that inquiry into the jury's numerical division was fundamental error requiring reversal. Rodriguez, 559 So.2d at 679, 680. However, the Rodriguez opinion also found error in the trial court's comment about the case being a "three witness" case, and in the refusal to honor the jury's request for a read back of testimony. Id. Similarly, the second district in McKinney found error in the trial court's polling the jury as to its numerical division on the verdict and in giving a modified and improper "dynamite" or Allen⁴ charge. McKinney, 640 So.2d...