Tucker v. State

• Decision Date: 20 June 2008
• Docket Number: No. 5D06-3142.,5D06-3142.
• Citation: 987 So.2d 717
• Parties: Jason Giles TUCKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

987 So.2d 717

Jason Giles TUCKER, Appellant, v. STATE of Florida, Appellee.

No. 5D06-3142.

District Court of Appeal of Florida, Fifth District.

June 20, 2008.

Rehearing Denied August 11, 2008.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

TORPY, J.

Appellant challenges his convictions for premeditated first-degree murder and sexual battery with great force. His sole point on appeal relates to the purported statutory disqualification of one of the jurors who served on his case. Appellant contends that one of the jurors was "under prosecution" while she sat on the jury because she had received a citation for a criminal traffic offense on the day the jury was sworn. As a consequence, Appellant urges that he is entitled to a new trial even though he made no showing that the juror was actually biased. We conclude that the juror was not "under prosecution," as that phrase is used in the jury qualification statute, because the state attorney had not received and acted on the juror's citation. Alternatively, we conclude that the remedy of a new trial is not available to Appellant, absent a showing of prejudice. Accordingly, we affirm.

The body of the victim was found on the floor of the sauna at her apartment complex. Her neck had been cut; there were scrapes and abrasions on her face and body, and she had two broken ribs. She also had injuries to her genitalia and bowel. The pathologist opined that the victim had died of asphyxia due to manual strangulation. DNA found in the victim's vagina and from a semen stain on her swimsuit matched Appellant's. Fingerprints found on a beer bottle, interior kitchen door, stovetop, turpentine can and a medicine bottle inside the victim's apartment were matched to Appellant. A grand jury indicted Appellant for first-degree premeditated murder and sexual battery with great force.

Appellant's case was tried to a jury. Voir dire began on Monday, August 15, 2005, and concluded on Tuesday, August 23, 2005. Venire member W. was selected as a juror and sworn in on the afternoon of August 23. Unbeknownst to Appellant, the attorneys or the judge, upon arriving at the courthouse on the morning of August 23, venire member W. received a uniform traffic citation for driving on a suspended license with knowledge, a second-degree misdemeanor. She received the citation in the parking lot of the courthouse as she was arriving for the final day of voir dire. She was not taken into custody but was ordered to appear in court at a later date.

On Monday, August 15, 2005, the trial judge in this case qualified the entire venire panel in the jury assembly room. One of the qualification questions asked by the judge was whether anyone was "presently under prosecution for any crime." Venire member W. did not give a positive response. Although the prosecutor and defense attorney both questioned the venire on August 23, no questions were asked that day regarding whether anyone had been charged with a crime or was under prosecution for a crime. W. did not inform anyone of the citation. The citation issued to W. was not filed in the clerk's office until August 31, 2005, seven days after the guilt phase of Appellant's four-week trial began.

The jury convicted Appellant of both counts. Thereafter, Appellant timely filed an amended motion for new trial.¹ In it, Appellant alleged entitlement to a new trial because W. had been "under prosecution" for a crime at the time she served. The court held an evidentiary hearing on the motion. Just before the hearing, the court allowed a limited interview of W. W. testified under oath that she had received a traffic citation for driving with a suspended license with knowledge in the parking lot of the courthouse. She said that she did not understand that the traffic citation was for a crime and did not believe that she was being "prosecuted" for a crime. She did not disclose the fact that she had received the citation because she did not think that it was relevant to her jury service.

W. denied knowing that her license had been suspended. The day she received the traffic citation, W. went to the clerk's office during the lunch break and found out why her license had been suspended. She was told that the suspension was for failing to pay a ticket (for having a faulty brake light) when she lived in Broward County years earlier. She had received two tickets at the same time in Broward County, one for the faulty brake light and another for having an expired tag. She thought that she had paid both tickets. She paid the outstanding Broward County ticket online that evening and also paid a license reinstatement fee. W. testified that a friend told her that if she paid the fines, "they're going to most likely throw it out; you're not going to get any penalties...."

During the hearing on Appellant's new trial motion, the State presented the testimony of Assistant State Attorney Jackson, the misdemeanor chief for the State Attorney's Office for the Eighteenth Judicial Circuit in Brevard County. Ms. Jackson testified that she had been the misdemeanor chief for over thirteen years. She explained that the State Attorney's Office routinely does not get involved in the prosecution of criminal traffic offenses until after arraignment. If a defendant pleads guilty at arraignment, there is no involvement from her office. Only in the event that a defendant pleads not guilty at arraignment does her office get notice of the case, at which time it would conduct an evaluation and determine whether to initiate prosecution. When asked the status of W.'s case, Ms. Jackson testified that there was nothing in the State Attorney's Office's database concerning the traffic citation, indicating that the State Attorney's Office had not yet received anything from the clerk on that citation.

In denying the new trial motion, the court specifically found credible W.'s testimony that she did not inform the court or the parties about having received the traffic citation because she did not understand that it was a crime, did not believe that she was being prosecuted for a crime and did not think it was relevant to her jury service. The court found that the issuance of a traffic citation by a law enforcement officer is insufficient to place a juror "under prosecution" within the meaning of the jury qualification statute. It reasoned that, under the Florida Constitution and Statutes, only the state attorney may prosecute crimes, and based on Ms. Jackson's testimony, the State Attorney's Office had not received a copy of W.'s citation, and thus, had not investigated or evaluated whether it would proceed with prosecution. The lower court ruled that a case is not "under prosecution" until it is placed in the state attorney's system and pursued by it. In other words, the court determined that to be "under prosecution," requires an actual prosecution rather than a potential one. Thus, the court found "a prospective juror is not `under prosecution' within the meaning of the jury qualification statute unless and until the state attorney affirmatively makes that decision and takes some affirmative action to advance the prosecution." The case proceeded to the penalty phase. The jury recommended death on the murder count, but the trial judge sentenced Appellant to consecutive life sentences. This appeal timely followed.

By statute, persons who are "under prosecution" for a crime are not qualified to serve on juries. Section 40.013(1), Florida Statutes (2007), provides:

(1) No person who is under prosecution for any crime, or who has been convicted in this state, any federal court, or any other state, territory, or country of bribery, forgery, perjury, larceny, or any other offense that is a felony in this state or which if it had been committed in this state would be a felony, unless restored to civil rights, shall be qualified to serve as a juror.

Indisputably, driving on a suspended license with knowledge, a second-degree misdemeanor, is a crime. The threshold issue framed by Appellant, therefore, is whether W. was placed "under prosecution," as contemplated by section 40.013(1), upon her receipt of the citation, so as to disqualify her from service on Appellant's jury. If so, Appellant contends that he is entitled to a new trial even without a showing that he was prejudiced. Although section 40.013(1) does not define the phrase "under prosecution," Appellant argues that section 775.15, Florida Statutes (2007), which denotes when a "prosecution" is "commenced" for purposes of the statute of limitations, also marks the beginning of prosecution for purposes of the jury qualification statute. Therefore, Appellant concludes, W. was "under prosecution" when she served on the jury because the prosecution had begun and had not yet ended.

At the outset, we observe that even were we to agree with Appellant's central premise, that the commencement of prosecution for purposes of the statute of limitations establishes the beginning of "prosecution" for purposes of the jury qualification statute, this event does not occur until the citation is both served and filed. § 775.15(4)(a), Fla. Stat. (2007) ("Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.") (Emphasis added). Here, the citation was not filed until one week after the jury was sworn. Therefore, here, we are addressing a case where, at worst, W.'s prosecution commenced after she had been sworn as a juror. Appellant cites no authority suggesting that a new trial is mandated when an otherwise qualified juror becomes statutorily disqualified to serve after the trial commences. We think that the policies favoring the completion of...