JEMEL WATSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jemel Watson was tried alongside co-defendant Gregory Tomingo using a two-jury system. Watson appeals contending his jury heard testimony exculpating Tomingo but inculpating him, specifically an eight-year-old eyewitness identifying Watson as the triggerman. The court affirms, holding that Watson's failure to object at trial constitutes a waiver, though fundamental error relief is unavailable under established precedent.
The court held that it was error to allow Watson's jury to hear Tomingo's case testimony, but Watson is not entitled to appellate relief because his attorney's failure to object constitutes a waiver. The fundamental error exception does not apply because the admission of proper evidence, though prejudicial, does not render the trial itself illegal.
[1] A trial court must take great care to ensure that each jury hears evidence relevant only to its defendant when multiple juries simultaneously try co-defendants.
[2] Failure to object to the admission of potentially prejudicial testimony waives the issue on appeal.
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Join FLexlaw to unlock all legal intelligence“a trial judge must take great care to insure that each jury hears evidence relevant only to its defendant”
Establishes the strict requirement in dual-jury trials that evidence be segregated by defendant to prevent prejudice
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Join FLexlaw to unlock all legal intelligenceWatson and Tomingo were tried simultaneously using two separate juries. After the state presented its case against Watson and the trial judge denied W…
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PER CURIAM.
Jemel Watson was charged with attempted robbery with a firearm and first degree felony murder. Two juries simultaneously tried Watson and a co-defendant, Gregory Tomingo. Cases approving the use of multiple juries have commended the system for furthering judicial economy but have cautioned that a trial judge must take great care to insure that each jury hears evidence relevant only to its defendant. See Velez v. State, 596 So. 2d 1197 (Fla. 3d DCA 1992); Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978). Watson has appealed, contending that his jury heard testimony exculpating Tomin-go but inculpating him.
We agree that it was error to allow Watson’s jury to remain in the courtroom during the taking of testimony in Tomingo’s case, but we must affirm because Watson’s attorney stood silent in the face of potential harm. After the state had presented its ease against Watson and the judge had denied Watson’s motion for judgment of acquittal, Tomingo presented the eyewitness testimony of an eight-year-old girl who identified Watson as the triggerman who shot the victim during a failed robbery attempt. The prosecution subsequently argued that evidence to the jury in his closing statement. All the while, Watson’s attorney, who had prior knowledge of the incriminating testimony, remained mute. The lack of specific objection constitutes a waiver of the issue on appeal. Watson now claims that, in spite of his trial counsel’s failure to object, fundamental error entitles him to relief. We decline to adopt that view, grounding our decision upon the following observations expressed by the Florida Supreme Court in State v. Smith, 240 So. 2d 807, 810 (Fla.1970) (citing Gibson v. State, 194 So. 2d 19, 20 (Fla. 2d DCA 1967)):
The Florida cases are extremely wary in permitting the fundamental error rule to be the ‘open sesame’ for consideration of alleged trial errors not properly preserved. Instances where the rule has been permitted by the appellate Courts to apply seem to be categorized into three classes of cases: (1) where an involved statute is alleged to be unconstitutional, (2) where the issue reaches down into the very legality of the trial itself to the extent that a verdict could not have been obtained without the assistance of the error alleged, and (3) where a serious question exists as to jurisdiction of the trial Court.
Although the evidence properly admitted against Watson was tenuous and the eyewitness testimony of the child was extremely prejudicial, we cannot conclude that such testimony rendered the trial itself illegal.
Although the decision of trial counsel to object or to move to suppress evidence is a matter of judgment or strategy, see Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970), Watson, in a proceeding before the trial court, might be able to prove that his counsel was ineffective in. failing to request removal of Watson’s jury during Tomingo’s case.
Affirmed without prejudice to the appellant’s right to raise this issue in a motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure.
FRANK, C.J., and SCHOONOVER and FULMER, JJ., concur.
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Sourcetrack, LLC v. Ariba, Inc., 958 So. 2d 523 (Fla. 2d DCA 2007)…r as our record reflects, SourceTrack did not raise in the trial court its contention that the in-limine ruling im-permissibly granted a partial summary [*526] judgment.2 Consequently, SourceTrack waived the argument for appeal. See Watson v. State, 633 So. 2d 525, 526 (Fla. 2d DCA 1994); Shofner v. Giles, 579 So. 2d 861, 862 (Fla. 4th DCA 1991). Moreover, absent a transcript of the hearing on the motion in limine, we must affirm a ruling that is not fundamentally erroneous on its face. See Applegate v. Barne…
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Estevez v. State, 127 So. 3d 635 (Fla. 4th DCA 2013)…Cases approving the use of multiple juries have commended the system for furthering judicial economy but have cautioned that a trial judge must take great care to insure that each jury hears evidence relevant only to its defendant.” Watson v. State, 633 So. 2d 525, 525 (Fla. 2d DCA 1994) (citations omitted). As a New Mexico court analyzing the multiple juries procedure noted: [W]e caution trial courts to bear in mind that the dual-jury procedure has the potential for engendering error, especially in complex…
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Heinly v. State, 201 So. 3d 769 (Fla. 4th DCA 2016)…Although courts are allowed to use multiple juries as a tool for furthering judicial economy, they have been cautioned that “a trial judge must take great care to insure that each jury hears evidence relevant only to its defendant.” Watson v. State, 633 So. 2d 525, 525 (Fla. 2d DCA 1994). In Watson, for example, the Second District concluded that “it was error to -allow Watson’s jury to remain in the courtroom during the taking of testimony in [his co-defendant’s] case” where the testimony exculpated his co-d…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Gibson v. State, 194 So. 2d 19 (Fla. 2d DCA 1967)
- Velez v. State, 596 So. 2d 1197 (Fla. 3d DCA 1992)
- Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978)
- Poole Eng'g Co. OF Fort Walton Beach v. Stewart, 239 So. 2d 863 (Fla. 1st DCA 1970)
- Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970)