State v. Hamilton
| Citation | 574 So.2d 124,16 Fla. L. Weekly 129 |
| Decision Date | 17 January 1991 |
| Docket Number | No. 75717,75717 |
| Parties | 16 Fla. L. Weekly 129 STATE of Florida, Appellant, v. Thewell Eugene HAMILTON, Appellee. |
| Court | United States State Supreme Court of Florida |
Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellant.
Robert T. Adams, Jr., Marianna, for appellee.
The state appeals an order granting a new penalty phase in the capital trial of Thewell Eugene Hamilton. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. See § 924.07(1)(b), Fla.Stat. (1989) (). The sole issue in this case is whether the jury's recommendation during the penalty phase must be set aside because unauthorized publications were present in the jury room during deliberations.
The facts of Hamilton's crime are stated in this Court's earlier review of this case, in which we remanded for a new trial on all issues. Hamilton v. State, 547 So.2d 630 (Fla.1989). On remand, Hamilton again was convicted and the jury then recommended the death penalty on both murder counts by a vote of seven to five. The legality of the convictions are not now before the Court.
After the jury returned its penalty recommendation but before sentencing, defense counsel called the trial court's attention to the fact that an alternate juror 1 named Kevilly had brought unauthorized materials into the jury room. These materials consisted of two magazines, "Musclecar Classics" and "Musclecar Review." Defense counsel noted that the magazines, which dealt primarily with automobiles, contained at least one "provocative" advertisement showing a blonde model dressed in a bathing suit. Defense counsel alleged that these materials had a potential to distract jurors from their duties.
It is unclear on this record whether Mr. Kevilly simply left the magazines in the jury room during those times when the jury was excused from the courtroom. 2 The trial court's colloquy with Kevilly, quoted in its entirety below, did not disclose exactly how or at what time the magazines were taken into the jury room:
A. Yes sir. It was to pass the time, so I wouldn't get in trouble for talking about anything I shouldn't be talking about.
Q. What kind of magazines are they?
A. They are car magazines.
Testifying at the subsequent evidentiary hearing, the only juror called by the defense--the jury foreman--did not recall seeing the magazines at all. 3 The following colloquy occurred between this witness and the assistant state attorney during cross-examination:
Q. Mr. Griffin, during the time that the deliberations of the jury were going on, you were the foreman back here? Right?
A. Yes sir.
Q. During that time, did any juror look at a magazine?
A. Now, I'm trying to rack my brain. If he did, I can't remember. I won't say he did or didn't, but I can't remember, I don't remember that, no sir.
Q. There were twelve of you in the jury room?
A. Right.
Q. All sitting around the table?
A. Yes sir.
Q. Were there any magazines?
A. Are you talking about when we were deliberating in the jury room?
Q. Yes.
A. No I don't think so.
Q. Did you see any juror with any magazines?
A. Not that I can remember, no sir.
Hamilton's counsel did not challenge these statements and waived the opportunity for redirect examination. No other testimony was introduced to rebut the jury foreman's statements, nor did the trial court later express any disbelief about the foreman's testimony. Although two bailiffs were summoned and examined, neither party asked them any questions about the magazines.
Defense counsel moved for a new trial on grounds that the magazines could not lawfully be taken into the jury room under Florida Rule of Criminal Procedure 3.400. In February 1990 the trial court entered an order granting a new trial solely as to the penalty phase. The order states in pertinent part:
ORDERED AND ADJUDGED that the portion of the Motion for New Trial regarding a new "penalty phase" by reason of unauthorized material in the jury room during deliberations is hereby granted....
In explaining the order, the trial court stated on the record that it was "not willing to jeopardize the prosecution of this case, and the outcome of it, on the flimsy circumstances that one of the jurors had contraband in the juryroom [in] the penalty phase." The trial court then ordered a new penalty phase to be held a month later; and the state appealed on grounds the order set an unfavorable precedent in the circuit.
Under Florida law, a trial court has wide discretion in deciding whether or not to grant a new trial. First National Bank v. Bliss, 56 So.2d 922, 924 (Fla.1952). However, this discretion is not without limit:
The granting of a mistrial should be only for a specified fundamental or prejudicial error which has been committed in the trial of such a nature as will vitiate the result.... However, when an alleged error is committed which does no substantial harm and the defendant is not materially prejudiced by the occurrence, the court should deny the motion for a mistrial.
Perry v. State, 146 Fla. 187, 200 So. 525, 527 (1941) (citations omitted). Accord Fla.R.Crim.P. 3.600. An abuse of the discretion to grant a new trial thus is subject to reversal on appeal.
In the context of the present case, this general rule must be viewed in light of the fact that jury deliberations are an especially sensitive portion of a trial. The introduction of unauthorized materials conceivably could have a powerful and often unascertainable impact on a verdict or jury recommendation, potentially violating the right to a fair trial guaranteed by the state and federal constitutions. U.S. Const. amend. VI; art. I, § 16, Fla. Const. Recognizing this fact, both the courts of this state and the courts of other jurisdictions have applied a somewhat more refined standard to motions for new trial that are based on the presence of unauthorized materials in the jury room. 4
For example, we previously have held that the presence of a dictionary in the jury room required reversal of the verdict. Smith v. State, 95 So.2d 525 (Fla.1957). We gave the following rationale for this conclusion:
Id. at 528 (quoting Corpus Christi St. & Interurban Ry. v. Kjellberg, 185 S.W. 430 (Tex.Civ.App.1916)) (emphasis omitted). The Smith opinion rested in part on earlier and more general statements that the judge, and only the judge, should be the jury's source of the applicable law. 5
Our courts have had occasion to revisit the issue on several occasions since Smith was issued. Florida courts are in general agreement that the doctrine applied in Smith is not a per se rule of reversal whenever any unauthorized materials are present in the jury room. Accord United States v. Hill, 688 F.2d 18, 20 (6th Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 498 74 L.Ed.2d 638 (1982). Rather, our courts have applied a harmless error analysis that requires close scrutiny of the type of unauthorized material at issue, its relation to the issues at trial, and the extent to which jurors actually consulted the material. Accord State v. Amorin, 58 Haw. 623, 629-31, 574 P.2d 895, 900 (1978).
In Yanes v. State, 418 So.2d 1247, 1248 (Fla. 4th DCA 1982), the Fourth District considered but rejected a claim of harmless error in a criminal proceeding when the trial court sent into the jury its whole book of jury instructions. The court ordered a new trial on grounds that the jury thereby had access to a number of irrelevant jury instructions that may have prejudiced the case. Id. Thus, the unauthorized materials in question--just like the dictionary in Smith--could have been used by jurors to reach an erroneous conclusion as to the law they must apply.
Similarly, in Grissinger v. Griffin, 186 So.2d 58, 59 (Fla. 4th DCA 1966), the Fourth District confronted a negligence trial in which the jury requested a dictionary and the bailiff and defense counsel, with permission of the court, delivered one to the jury room. The court reversed on grounds that the jury may have used the dictionary "to torture the words in the court's charge from their true meaning." Id. It is significant that the trial in Grissinger involved questions of negligence, proximate cause, and contributory negligence. Id. Thus, in considering the meaning of these legal terms, the jury might have relied on common dictionary definitions that were contrary to the law of Florida.
Elsewhere, Florida courts have rejected similar claims based on a finding that the presence of the unauthorized materials could not have affected the verdict.
For example, in Trotter v. State, No. 70,714, slip op. at 4-5 (Fla. Dec. 20, 1990), the trial court denied a motion for new trial based on allegations that jurors were placed in a room that contained law books and a telephone. At a hearing, the evidence established that jurors never used the law books and that the telephone only was used to inform family members that jurors would be late. 6 Id. at 4.
In Kelly v. State, 360 So.2d 77, 77 (Fla. 4th DCA) (mem.), cert. denied, 364 So.2d 887 (Fla.1978), Judges Downey and Cross 7 confronted a composite sketch of a codefendant mistakenly sent into the jury room after it had been rejected as evidence. The concurring judges held that this was harmless error because the defense had not made "the first suggestion of any prejudice." Id. (Downey, C.J., & Cross, J., concurring...
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