ROBIN OROSZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robin Orosz appeals his criminal conviction, challenging the trial court's jury instructions regarding the defendant's right to make a defense and the court's dismissal of a juror who appeared to be sleeping. The court affirmed, finding any instructional error was cured by subsequent proper instructions and the juror dismissal was not an abuse of discretion.
Any error in the jury instruction was harmless because it was cured by subsequent proper instructions on the defendant's right to remain silent, the presumption of innocence, and the state's burden of proof. The dismissal of the inattentive juror was not an abuse of discretion, as the trial court has a duty to ensure fair and impartial jurors, and the substitution with an alternate who was present throughout the trial caused no prejudicial harm.
[1] A trial court's preliminary instruction, if potentially misleading, may be cured by subsequent instructions on the presumption of innocence and the state's burden of proo…
[2] A defendant must object to a potentially erroneous jury instruction or move for a mistrial to preserve the issue for appeal, absent fundamental error.
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Join FLexlaw to unlock all legal intelligence“A trial court has the duty to insure that a defendant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise.”
Establishes the trial court's authority and duty to manage juror conduct and address problems such as inattentiveness
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Join FLexlaw to unlock all legal intelligenceDuring jury selection, the trial court instructed that every citizen has the constitutionally guaranteed right to make a defense in open court and hav…
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PER CURIAM.
Orosz appeals, urging that the trial court erred in its instructions to the jury panel and in dismissing a juror without the express consent of defendant. We affirm.
During the preliminary instructions to the jury panel the trial court stated:
It is the constitutionally guaranteed right of every citizen to make his defense to a charge of crime in open court according to the rules and to have the facts concerning his alleged crime heard, weighed, and considered and determined by a jury of his peers.
Standing alone, this statement could, under certain circumstances, constitute error and we caution the trial court to scrupulously avoid such comments. In this case, shortly after making the statement, the court instructed the jury on the defendant’s right to remain silent specifying that the defendant did not have to prove his innocence or furnish any evidence. The court later instructed on the presumption of innocence and the state’s burden of proving each material allegation beyond and to the exclusion of every reasonable doubt. He reiterated that the defendant need not prove anything and that the entire burden is on the state to overcome the presumption of innocence. Under these circumstances any error the court may have committed was cured.
Additionally, we note that appellant did not object and did not move for a mistrial when the comment was made as is required in the absence of fundamental error. Clark v. State, 363 So. 2d 331 (Fla.1978).
We also find no error with regard to appellant’s second point. During the trial, the court noticed that one of the jurors appeared to be sleeping and called this to the attention of counsel, both of whom indicated they wished to proceed with the jury as constituted.
At the close of the evidence, the court again inquired of counsel and appellant stated he wished to continue with the same jury. The court decided to continue its observation of the juror during final instructions and then make its decision. After an off-the-record discussion, the court dismissed the juror and substituted an alternate. There was no record objection, and no record acquiescence.
While off-the-record discussions are not favored, Magill v. State, 386 So. 2d 1188 (Fla.1980) defendant has not shown reversible error. A trial court has the duty to insure that a defendant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise. Walker v. State, 330 So. 2d 110 (Fla. 3d DCA 1976). Removal of the juror and substitution of the alternate was not an abuse of discretion. After continued observation over a significant portion of the trial, the court concluded that the juror was not attentive and would be unable to deal fairly with the evidence. Even if the court were wrong, the error was harmless. The juror was replaced by a duly selected alternate who had been present during the entire proceedings and appellant has not shown that he was prejudiced by the substitution. State v. Tresvant, 359 So. 2d 524 (Fla. 3d DCA 1978) cert. denied 368 So. 2d 1375 (Fla.1979).
AFFIRMED.
MILLS, C. J., and McCORD and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Medina v. State, 466 So. 2d 1046 (Fla. 1985)…removed him. Medina’s request to question this juror as to the other jurors’ feelings about the matter would have produced only speculation and conjecture. The trial court, therefore, correctly refused to allow such questioning. See Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980); Walker v. State, 330 So. 2d 110 (Fla. 3d DCA), cert, denied, 341 So. 2d 1087 (Fla.1976). Medina has demonstrated no prejudice, and we hold that the trial court committed no error here. Two weeks prior to trial the public defend…
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Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)…ndant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise. Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1980), citing Walker v. State, 330 So. 2d 110 (Fla. 3d DCA), cert. denied, 341 So. 2d 1087 (Fla.1976). Second, appellant questions the propriety of retaining jurisdiction over a portion of the sentence without stating the ground…
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Joscelyn Amanuel Graham v. State, 470 So. 2d 97 (Fla. 1st DCA 1985)…e to agree that the dismissal of the juror was error, it was harmless. The juror was replaced by a duly selected alternate who was present for the entire proceedings, and no prejudice was shown to have resulted from the substitution. Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1981). AFFIRMED. SMITH and THOMPSON, JJ., concur.…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Magill v. State, 386 So. 2d 1188 (Fla. 1980)
- Derwin Brennan v. State Farm Mut. Auto. Ins. Co., 359 So. 2d 524 (Fla. 3d DCA 1978)
- Walker v. State, 330 So. 2d 110 (Fla. 3d DCA 1976)