WILLIE C. TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this criminal appeal, the court affirmed Taylor's conviction despite finding that the trial court's novel procedure of requiring opening statements during jury voir dire—before the jury was sworn and jeopardy attached—was erroneous. The court determined that any error was harmless beyond a reasonable doubt and discouraged the procedure for future cases.
The court affirmed the conviction, finding no reversible error because any error in the procedure did not contribute to the conviction beyond a reasonable doubt. However, the court found the procedure was error and disapproved and discouraged it for future cases due to significant potential problems.
[1] Requiring opening statements prior to the swearing of the trial jury is a procedure that should be disapproved and discouraged due to the great potential for error.
[2] While a trial court's novel procedure may not be explicitly proscribed by case law or rule, it can still constitute reversible error if it prejudices the defendant.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we find no reversible error in this case. If the procedure below was error, and we believe that it was, then the record demonstrates beyond a reasonable doubt that the error did not contribute to the conviction of Taylor.”
Establishes the court's harmless-error holding despite finding the procedure erroneous.
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Join FLexlaw to unlock all legal intelligenceAt trial, the judge required both the state and defense to give opening statements during jury voir dire examination before swearing in the trial jury…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
Pursuant to motion for rehearing filed by the state, we vacate our prior opinion herein filed on December 11, 1986, and substitute the following:
At trial of this criminal prosecution, the trial court, over objection by both the state and the defense, required that opening statements accompany voir dire examination of the jury venire prior to swearing of the trial jury, with the stipulation that the defense could still elect to reserve its opening statement. The trial court saw this procedure as expediting the jury selection process.
On appeal Taylor argues that this unorthodox procedure was prejudicial to the defense because:
... [T]he attorneys are able to observe the demeanor of the prospective jurors as the case is previewed, prior to jeopardy attaching. The voir dire becomes a group discussion of the various attitudes of the jurors concerning specific factual matters of the case. The procedure has less to do with selection of a fair and impartial jury than it does with learning the proclivities of how each prospective juror views and determines the facts of the case.
In response, the state argues that the trial judge’s experiment, although novel, does not constitute a palpable abuse of discretion inasmuch as no case law, rule of procedure, or other legal authority specifically proscribes it. Moreover, the state points out that the true objection raised at trial by the defense was that it would force the defense to prematurely reveal its strategy to the state during voir dire. Faced with that objection, the trial judge ruled that the defense was still free to reserve its opening until after presentation of the state’s case, and thereafter the defense raised no further objection. In this case there was no prejudicial conduct by the prosecutor during either voir dire or opening statement.
Given this factual context, we find no reversible error in this case. If the procedure below was error, and we believe that it was, then the record demonstrates beyond a reasonable doubt that the error did not contribute to the conviction of Taylor. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Nevertheless, we note several potential problems with the procedure under review. Jeopardy commences only upon the swearing of the trial jury. The absence of jeopardy during opening statement affords the temptation to the state to inject improper comment without the risk of losing the case via mistrial. It also opens the door to voir dire questions seeking commitments from jurors based on the outlined testimony, thereby ascertaining the juror’s verdict in advance of his hearing the actual testimony. See Dicks v. State, 83 Fla. 717, 93 So. 137 (1922). Nor can we reconcile the instant procedure with the provisions of section 1.01 of the Florida Standard Jury Instructions in Criminal Cases, which obviously contemplates that opening statements will follow selection and swearing of the jury.
For the foregoing reasons, we disapprove and discourage the procedure of requiring opening statements prior to swearing of the trial jury because of the great potential for error. Cf. DeWitt v. State, 442 So. 2d 1029 (Fla. 5th DCA 1983). In some future case, reversal may well result.
AFFIRMED.
UPCHURCH, C.J., and DAUKSCH, J., concur.
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Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988)…y charge was refiled. He challenged the refiled information contending that it violated the constitutional prohibition against double jeopardy. The motion was properly denied; double jeopardy does not attach until the jury is sworn. Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987). In spite of the procedural deficiency which occurred in the trial court, we affirm the orders denying Everett’s motion to suppress and the motion to dismiss the second information. RYDER, A.C.J., and LEHAN, J., concur.…
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Perkins v. The Honorable Gayle S. Graziano, 608 So. 2d 532 (Fla. 5th DCA 1992)…ct. Perkins was charged with aggravated battery, and his trial commenced on Monday, July 6, 1992, at which time a six-member jury was selected and sworn. Jeopardy attached at that time. Rawlins v. Kelley, 322 So. 2d 10 (Fla.1975); Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987). The trial was then recessed until Friday, July 10, 1992. When court reconvened, however, it was determined that one juror had been erroneously advised by a deputy court clerk that the trial had been can-celled, and that he was e…
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Jackson v. State, 505 So. 2d 12 (Fla. 5th DCA 1987)…PER CURIAM. AFFIRMED on the authority of Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987) (on motion for rehearing). UPCHURCH, C.J., and ORFINGER and SHARP, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Dicks v. State, 83 Fla. 717 (Fla. 1922)
- Wallace v. Sears, 442 So. 2d 1029 (Fla. 4th DCA 1983)
- Dewitt v. State, 442 So. 2d 1029 (Fla. 5th DCA 1983)