JOSE GONZALEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1993-11-17
No. 92-00862
PARKER, A.C.J., and BLUE, J., concur.
627 So. 2d 63 Florida District Court of Appeal, Second District (1993) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jose Gonzalez appeals his convictions for first-degree murder and robbery, challenging the trial court's refusal to instruct the jury on withdrawal and the adequacy of jury polling after the guilty verdict. The court reversed and remanded for a new trial, finding that the trial court erred in accepting the verdict when a juror indicated her verdict did not apply to one of the defendants.


Holding

The trial court erred in accepting the jury's verdict. When juror Ms. Slaughter clearly indicated that her verdict did not apply to one of the defendants, the trial court should have either returned the jury for further deliberation or made further inquiry into her statement. The court's failure to do so, combined with the polling of remaining jurors and the court cutting off Ms. Slaughter's attempted explanation, violated the requirement for a unanimous verdict.


Headnotes

[1] A jury verdict is not unanimous when a juror, upon being polled, expresses that the verdict does not align with their conclusions and subsequently repudiates their initia…

[2] When a juror dissents from a verdict during polling, the court must direct the jury to return for further deliberation.

Previewing 2 of 4 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

Key Quotes

“if, while being polled, a juror dissents from the verdict 'the court must direct that the jury be sent back for further consideration.'”

Establishes the legal standard under Florida Rule of Criminal Procedure 3.450 requiring the trial court to return the jury when a juror dissents during polling

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Gonzalez was tried jointly with codefendant Michael Hartwick for the death of a victim who died after Hartwick placed him in a headlock while Gonzalez…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
LUTEN, CLAIRE K., Associate Judge.

LUTEN, CLAIRE K., Associate Judge.

Jose Gonzalez appeals his convictions for first-degree murder and robbery. He raises three issues on appeal.

Appellant first argues that the trial court erred when it refused to instruct the jury on the defense of 'withdrawal. We conclude that there was no evidence to support such an instruction.

Appellant’s second issue concerns the polling of the jury. Appellant was tried together with the codefendant, Michael Hart-wick. The victim died after Hartwick placed him in a headlock while the appellant stole money from the victim’s trailer. Both Hart-wick and the appellant were found guilty by the jury of first-degree felony murder and robbery.

After the guilty verdict was read the jury was polled. The following exchange took place between the trial court and juror number one, Ms. Slaughter. THE COURT: Ms. Slaughter, is this your verdict and the verdict of the jury as a whole?

(No response.)

THE COURT: This verdict she read, is that your verdict?

MS. SLAUGHTER: My verdict?

THE COURT: Yes. Is the verdict that she read, is that your verdict and the verdict of the jury as a whole?

MS. SLAUGHTER: I guess so.

THE COURT: Is that how you voted? Is that what you wanted to do?

MS. SLAUGHTER: Well, for one of them.

The trial court, at this point, made no further inquiry and went on to poll the remaining jurors, who were all in agreement with the verdict.

After polling the remaining jurors, the trial court returned to Ms. Slaughter:

MS. SLAUGHTER: Your Honor, I didn’t understand, is that a verdict as a whole. I never....

THE COURT: My question is, is that your decision? MS. SLAUGHTER: Yes, sir. I didn’t understand what you were saying about this verdict as a whole, because I never....

THE COURT: Okay. Yours and what you understand the rest of the jury voted?

MS. SLAUGHTER: Right.

The appellant argues that his right to a unanimous jury verdict was violated. He points out that under Florida Rule of Criminal Procedure 3.450, that if, while being polled, a juror dissents from the verdict “the court must direct that the jury be sent back for further consideration.”

In Cogmon v. State, 338 So. 2d 562 (Fla. 1st DCA 1976), forty-five minutes after being read an Allen1 charge, the jury returned with verdicts of guilty to both charges. One of the jurors upon being polled, indicated it was not her verdict and that she acquiesced in it only because the other five jurors had reached the conclusion that the defendant was guilty. The trial court continued to question that juror:

THE COURT: But that you independently arrived at that verdict along with the other five members of the jury. Is that correct?

JUROR SEARCY: Well, at the end, yes, I did.

Id. 338 So. 2d at 563. The First District did not determine this exchange to be a disavowal of her earlier repudiation of the verdict. Id. The court found that the juror “having dissented from the verdict and there having been no subsequent unanimous verdict, a mistrial should have been declared.” Id. at 563.

In the case at hand, Ms. Slaughter did not express her dissent as strongly as the juror in Cogmon. However, she clearly indicated that her verdict did not apply to one of the defendants. At this point, the trial court should have returned the jury for further deliberation, or it should have inquired further as to what she meant by the statement, “[w]ell [that is what I wanted to do] for one of them.” The polling of the rest of the jurors could be perceived as attempted coercion of Ms. Slaughter. See United States v. Spitz, 696 F. 2d 916 (11th Cir.1983). We also note that upon returning to Ms. Slaughter, the trial court, rather than asking her to explain herself, appeared to cut her off, not allowing her to finish whatever it was she was trying to say. We do not conclude, therefore, Ms. Slaughter repudiated her disagreement with the verdict.

We hold that the trial court erred in accepting the jury’s verdict in the manner described, and reverse and remand for a new trial. Our holding renders appellant’s third issue moot.

PARKER, A.C.J., and BLUE, J., concur. . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Brutton v. State, 632 So. 2d 1080 (Fla. 4th DCA 1994)
    …ere is no dissent the verdict shall be entered of record and the jurors discharged. Few Florida cases have discussed the application of the rule, perhaps because juror repudiation during polling is a rare occurrence. Recently, in Gonzalez v. State, 627 So. 2d 63 (Fla. 2d DCA 1993), the court discussed rule 3.450. The juror had announced during polling that she “guessed” the verdict was her verdict and stated “[wjell [that is what I wanted to do] for one of them.” The trial court then continued polling the r…
  • Cang Tan Chung v. State, 641 So. 2d 942 (Fla. 5th DCA 1994)
    …ourt and defense counsel noticed that she expressed outright hesitation in her response. At that time, it would have been appropriate for the trial court to inquire further to Rivera regarding the truthfulness of her response. See Gonzalez v. State, 627 So. 2d 63 (Fla. 2d DCA 1993) (stating that where a juror was polled and indicated that the verdict was not her verdict for one of the two defendants, the trial court should have sent the jury back for further deliberations). We acknowledge that the trial judg…
  • Hartwick v. State, 630 So. 2d 227 (Fla. 2d DCA 1994)
    …PER CURIAM. The judgments and sentences herein are reversed and the case is remanded for a new trial, on the authority of Gonzalez v. State, 627 So. 2d 63 (Fla. 2d DCA 1993). ALTENBERND, A.C.J., and LAZZARA and QUINCE, 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 intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw