Weber v. State

• Decision Date: 10 February 1987
• Docket Number: No. 86-184,86-184
• Citation: Weber v. State, 501 So.2d 1379, 12 Fla. L. Weekly 475 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 475 Charles WEBER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1379

501 So.2d 1379

12 Fla. L. Weekly 475

Charles WEBER, Appellant, v.The STATE of Florida, Appellee.

No. 86-184.

District Court of Appeal of Florida Third District.

Feb. 10, 1987.

Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee.

Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Before arriving at its verdict finding the defendant guilty as charged, the jury learned from a source extrinsic to the trial that Weber had been previously convicted of, and sentenced to 99 years in prison for, the crimes for which he was on trial and that the conviction and sentence had been reversed because of a technicality.On this appeal, the defendant contends that neither the trial court's admonition to the jurors to disregard this information nor the jurors' assurances to the trial court that the information would not affect their deliberations were sufficient to show that the jury was not influenced by its receipt of this highly prejudicial information and thus to show that the guilty verdict ultimately rendered by the jury had been decontaminated.Concluding that the defendant is correct, we again reverse his conviction and remand the cause for a new trial.

I.

A brief history is in order.Weber was first tried and convicted on the charges of attempted second-degree murder and the unlawful possession of a firearm while engaged in such attempted murder.This court affirmed Weber's conviction without prejudice, determining that his claim that he did not receive effective assistance of counsel at his trial should be first made in the trial court.Weber v. State, 411 So.2d 315(Fla. 3d DCA1982).In 1983, after the defendant was unsuccessful in obtaining relief in the trial court, we concluded that in the face of reasonable grounds to believe that he was not competent to have been placed on trial in 1981, his counsel should have demanded, and the trial court, even without counsel's demand, should have required, a competency hearing.This "technicality," as it was to be later called, resulted in our reversing Weber's conviction and ordering that he be retried, but only after he was found to be competent to stand trial.Weber v. State, 438 So.2d 982(Fla. 3d DCA1983).Underlying the seriousness of putting an arguably incompetent defendant on trial, we subsequently upheld a trial court ruling excluding from Weber's new trial the reported testimony of a prosecution witness given at Weber's first trial.Weber v. State, 466 So.2d 345(Fla. 3d DCA1985).

II.

We come now to Weber's second trial--the case before us.Having been found competent to stand trial, Weber apparently deemed himself fit not merely to assist counsel, but, with the trial court's begrudging imprimatur (not challenged on this appeal), undertook to represent himself.And, when the critical moment came, Weber's self-representation, if not the paradigm of good lawyering, was certainly adequate; the error of which he complains on appeal was safely preserved.

A.

During its deliberations, the jury gave the bailiff a note to the judge, who in turn summoned Weber and the prosecutor to inform them of its contents.

"THE COURT: Let the record reflect that everybody is present.

"Gentlemen, I have received a communication from the jurors.It says: To Judge Snyder.During the deliberations, the six jurors took a vote as to whether we believe Mr. Weber shot Ricky Facen.After the vote, one of the jurors commented that Mr. Weber was convicted of these charges in a case previously and received a 99-year sentence that was later overturned on appeal for a technicality.The source from which the information came was the jury pool room yesterday, Thursday, November 14th, 1985.Two people were discussing the case and the juror overheard the comment.The jurors proceeded to deliberate and reached a decision with regard whether [sic] Mr. Facen was shot by Mr. Weber.Is a decision as to the guilt or not of the charges the next step?¹Did the information about the previous case in finding contaminate what was done so far and can we still proceed?Signed, Alberta Gokey, foreman."

Weber's reaction was unhesitating and clear:

"MR. WEBER: Mistrial, whatever you call it.

"THE COURT: [calling for the prosecutor's response] Mr. Merrill?

"MR. WEBER: Start a new trial Monday, Your Honor."

The court denied the defendant's motion for mistrial² and instructed the jury:

"THE COURT: Ladies and gentlemen of the jury, what you brought to my attention is a very serious situation.Now, let me say this:

"Whatever happened in this case prior to this should be of no concern to you and it's certainly no concern to me.I do not know these statements here are true as a matter of my checking into it.I have not examined the file.I do not know exactly what happened in the prior case or the reasons for it.That's not my job.My job is to try this case.

"Now, assuming that the information that you received was correct--it's possible that it was; I don't know, but it's possible that it was--would that in any way affect your deliberations in this case?Would that affect your ability to determine the facts in this case, whether Mr. Weber was convicted of these charges at a prior time and reversed on appeal or not?

"In other words, every time a person wins an appeal it's another case, it's another trial and another jury, not the jury that originally heard the case, has to come in and decide facts.

"It is unfortunate that you people, whoever it was, after my admonishment of you exactly to that effect even listened to it.This case has taken all week.

"Now, you just tell me if anybody is going to be tainted by this information?That's the way it is.Facts don't change.

"Let me go down the list."

The court thereupon asked each juror whether the information would affect him or her in any way and received from each a negative response.Satisfied with these answers, the court sent the jury back to resume deliberations.Before long, it returned a guilty verdict.

B.

It is well established that a requisite of the fair jury trial to which an accused is constitutionally entitled is that there be "a panel of impartial, 'indifferent' jurors."Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594(1975)(quotingIrvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755(1961)).While it is also said that a juror may be deemed to be fair and thus qualified to sit even though not "totally ignorant of the facts and issues" in the case, a juror's assurance that he is equal to the task of laying aside his impressions or preconceived notions is not dispositive of the question of the juror's ability to be impartial, indifferent, and fair.Murphy v. Florida, 421 U.S. at 800, 95 S.Ct. at 2036, 44 L.Ed.2d at 594-95.

Courts which have confronted the discrete issue posed by the present case have uniformly concluded that the prejudice arising from the exposure of jurors to information that the defendant was previously convicted of the very offense for which he is on trial is so great that neither an ordinary admonition of the jurors nor the jurors' ritualistic assurances that they have not been affected by the information can overcome it.

In the leading case of United States v. Williams, 568 F.2d 464, 465(5th Cir.1978), the court addressed the issue of "whether exposure of jurors, during the second trial, to news reports containing references to defendants' conviction in the first trial deprived appellant of a fair trial."According to the court, the newscast, essentially about the commencement of the second trial, ended with a statement that the defendants had been convicted in the first trial, but that the verdict had been overturned because of "erroneous testimony."Five jurors admitted knowing of the report; two jurors admitted actually seeing the newscast.The ones who had seen the story assured the trial judge that it would not influence them in deciding the case.³The court instructed the jury as a whole to disregard everything not heard in court.

Noting abundant authority regarding as inherently prejudicial news stories published during the trial that reveal to jurors a defendant's prior criminal record, the court in Williams concluded that, a fortiori, information revealing that the defendant was previously convicted of the crime for which he is on trial is inherently prejudicial:

"Indeed, we are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged."

Id. at 471.

Moreover, in the court's view, the fact that the newscast mentioned that a new trial had been granted because of "erroneous testimony," a statement "which, although accurate, could easily be interpreted by a layman as meaning that 'the defendants got off on a technicality,' "id. at 470, exacerbated the prejudice of the newscast.The court, in reversing the defendant's conviction, concluded that neither the perfunctory admonition "to disregard everything not heard in court" nor the jurors' well-meaning assurances that "the story would in no way influence their decision in the case" dissipated the harm of the prejudicial information.

Other courts, citing Williams, have agreed that information that the defendant has been previously convicted of the crime for which he is being tried almost stands alone in its capacity to prejudice.SeeCappadona v. State, 495 So.2d 1207(Fla. 4th DCA1986)(conviction reversed despite assurances from the three jurors who during trial had read news article revealing that defendant had been previously convicted of the crime for which he was now on trial, and despite several admonitions to jurors to disregard media reports of the trial)⁴;Hughes v. State, 490 A.2d 1034, 1044(Del.1985)("It seems unreasonable to...