State v. Tresvant, 77-1780

• Decision Date: 23 May 1978
• Docket Number: No. 77-1780,77-1780
• Citation: 359 So.2d 524
• Parties: The STATE of Florida, Appellant, v. Albert W. TRESVANT, Sr., Appellee.
• Court: Florida District Court of Appeals

Page 524

359 So.2d 524

The STATE of Florida, Appellant, v. Albert W. TRESVANT, Sr., Appellee.

No. 77-1780.

District Court of Appeal of Florida,Third District.

May 23, 1978.

Rehearing Denied June 28, 1978.

Janet Reno, State's Atty. and Paul M. Rashkind, Asst. State's Atty., for appellant.

James W. Matthews, Miami, for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The State filed this appeal from an order granting new trial. We find error and reverse.

The appellee was found guilty by a jury of the crimes charged against him by indictment, consisting of conspiracy to commit a felony, bribery, and unauthorized compensation for official behavior, in violation respectively of Sections 777.04(3), 838.015, and 838.016 Florida Statutes (1975).

As recited in the order granting new trial, it was sought by the defendant on the grounds (1) that the court erred in excusing a qualified juror on motion of the State, and (2) that the "jury was influenced by fear or prejudice owing to an incident involving defendant following them out of the courtroom building into a parking lot area".

As to the first incident, whereby a juror was removed for cause during the trial and was replaced by the chosen alternate juror, the trial court, in granting the motion for new trial, viewed that as having been an error of law. Regarding the second incident, as to which the court during trial had become satisfied that no prejudice to the defendant had thereby occurred, in granting new trial the court said such incident constituted a "cause not due to defendant's own fault which prevented a fair and impartial trial".

On voir dire, the juror who later was excused for cause, when questioned as to whether she had ever been a victim of a crime, did not answer that question directly but stated she had been arrested on being accused of interfering with an arrest which was being made of her son, but that the matter had been dropped. Investigation made by the State while the trial was proceeding disclosed that a person having the same name had been arrested on six occasions. Prior to the close of the State's case the State, with permission of the Court, on further voir dire examination of the juror, established that she was the person who had been subject to said multiple arrests, which she had not revealed. The State's motion for the juror to be excused or removed for cause was granted and the trial proceeded with the alternate juror replacing the one thus excused.

The appellee argues it was error to remove the juror because the fact that she had been arrested a number of times did not legally disqualify her to sit as a juror. The State contends removal of the juror was not for any reason of disqualification under the law, but for her lack of candor in not revealing the other arrests, when her answers were such as to lead to an inference indicating there was only one such and, because, as recited in the court's order, in the course of her subsequent voir dire in which she was questioned by a prosecutor regarding her failure to have disclosed the other arrests "there developed some hostility or resentment on the part of Johnson (the juror) directed toward the inquiring prosecutor". Further, the State argues that no prejudice resulted inasmuch as the discharged juror was replaced by the previously accepted alternate juror.

Regarding that incident, it is our view that removal of the juror and substitution of the alternate in her place was not an abuse of discretion in the circumstances. Moreover, if it should be considered that the excusal of the juror was unnecessary or uncalled for, the error therein was harmless. There was no showing that it operated to the prejudice of the defendant, or that it resulted in a miscarriage of justice.

Concealment by a juror on voir dire of information which may have been of materiality as to whether the juror would be excused on peremptory challenge or for cause, which having occurred is not revealed or discovered until after trial, can justify the granting of a new trial. Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972). Therefore, when such occurs and is disclosed during a trial, a mistrial would be indicated unless, as in this instance, there is available an acceptable alternate juror to replace the offending juror when removed. United States v. Taylor, 554 F.2d 200 (5th Cir. 1977). It follows that if there existed a legal need to excuse the juror in question, the procedure employed in this case did not constitute error in law; and if...