West v. State, 90-2208

• Decision Date: 07 August 1991
• Docket Number: No. 90-2208,90-2208
• Citation: 584 So.2d 1044
• Parties: John WEST a/k/a Thomas D. Mitchell, Appellant, v. STATE of Florida, Appellee. 584 So.2d 1044, 16 Fla. L. Week. D2044
• Court: Florida District Court of Appeals

Page 1044

584 So.2d 1044

John WEST a/k/a Thomas D. Mitchell, Appellant, v. STATE of Florida, Appellee.

No. 90-2208.

584 So.2d 1044, 16 Fla. L. Week. D2044

District Court of Appeal of Florida,

First District.

Aug. 7, 1991.

Rehearing Denied Sept. 5, 1991.

Nancy A. Daniels, Public Defender, Gail Anderson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

Following a jury trial, appellant was convicted of armed burglary, false imprisonment, armed robbery, and one count of sexual battery with a deadly weapon. Appellant raises two points on appeal, those being: (I) Whether the state's and trial court's action in dismissing the first jury pool deprived appellant of his rights to due process, to a fairly and randomly selected jury, to be present at all critical stages of the proceedings, and to the assistance of counsel; and (II) Whether the trial court erred in imposing habitual offender sentences on appellant's convictions which are either first-degree felonies punishable by life or life felonies. We affirm in part and reverse in part.

Regarding Point I, the record shows that following the filing of a defense motion for new trial, an assistant state attorney not connected with appellant's case filed a "Disclosure of Information to the Court" revealing that as she was leaving the court on February 5, 1990, she noted that the jury venire assembled for voir dire in appellant's trial

... did not appear to be a highly educated jury. A well-educated jury was desirable based on the complicated and technical nature of [appellant's] pending case.

According to the disclosure, the assistant state attorney then approached the bench and represented to the court that an "emergency" existed that required the court's attention, while also observing that the panel did not appear to be highly desirable. She admitted that it was an overstatement for her to term as an "emergency" the fact that an essential witness had not yet contacted the State Attorney's Office. She also admitted that the overstatement was made "with the intent that the panel may not be used." Even though she was not the prosecutor assigned to handle appellant's case, the trial court dismissed the waiting panel based on her representation that there was an emergency. A lunch hour recess was taken and the court thereafter called another panel from the jury pool to the courtroom for selection. The record shows that a jury was then selected by appellant's defense attorney and the prosecutor assigned to the case, neither of whom used all of their peremptory challenges.

In response to this eleventh-hour disclosure by the assistant state attorney, defense counsel filed an amended motion for new trial arguing that the state attorney's actions had denied him a fair trial and that the court's dismissal of the first jury pool was tantamount to granting the state an unlimited number of peremptory challenges. In denying the motion, the trial court observed that all the jurors in the pool were qualified and that any panel pulled out of that group would have been a legal panel. Accordingly, the court observed that appellant was not deprived of any due process "by using Panel A or Panel B."

Initially, we observe that much of appellant's argument on appeal was not presented to the trial court and therefore is not preserved for review. Hill v. State, 549 So.2d 179 (Fla.1989). What was argued was that appellant was denied due process and that the state was granted an unlimited number of peremptory challenges. As to that argument, we agree with the state that, despite the state attorney's reprehensible conduct (which is being investigated), there was no due process violation and that appellant received a fair trial.

It is axiomatic that to justify a new trial, a defendant must establish that the alleged error seriously affected the fairness of his trial and that the trial court abused its discretion in denying the motion. Atkins v. State, 210 So.2d 9 (Fla. 1st DCA 1968). It is further without dispute that a defendant's right to an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution does not entitle that defendant to be tried by any particular jurors or by a jury of a particular composition. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

In the instant case, as noted by the state, appellant does not assail the juror summoning process or the master list from which prospective jurors in the community were drawn. He does not allege that any juror selected from the second venire was unqualified to serve. Indeed, following selection of the jury, defense counsel noted for the record that he was satisfied with the jury. With that in mind, we stress that we are not minimizing the potential for prejudice that the assistant state attorney's outrageous conduct may have caused under other circumstances. However, appellant's claim herein rests solely on the exchange of one indistinguishable venire from another. The trial court indulged in creative analogy on this point which we quote below but do not necessarily endorse as applying in all situations. In holding that this exchange had no bearing upon the randomness of the jury selection process the court observed:

When the first panel was excused there isn't any question it was excused because of the false statement by the prosecutor. But when they were excused they went...