SIE JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must timely object to potential jury contamination to preserve the issue for a new trial or jury interview, but remanded for an evidentiary hearing to determine if the defendant waived this right.
[1] A defendant waives the right to raise an issue concerning jury misconduct in a motion for new trial or jury interview if the defendant had knowledge of the misconduct and…
[2] A timely objection to conduct potentially impacting the jury allows the trial court an opportunity to salvage the trial through reinstruction or curative measures.
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Join FLexlaw to unlock all legal intelligenceThe defendant's wife created a disturbance outside the courtroom, potentially overheard by the jury venire, and later submitted an affidavit detailing…
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GROSS, J.
We affirm appellant Sie Jenkins’s conviction of trafficking in cocaine and write to address one issue raised on appeal.
After the trial, Jenkins moved for a new trial and for a jury interview. A ground for both motions was the conduct of appellant’s wife, Willie Ann Jenkins, who signed an affidavit in support of the motion for jury interview. In pertinent part, the affidavit stated:
2. On Tuesday, August 12, 1997, I arrived at the Broward County Courthouse to observe my husbands [sic] trial. This was the first time I was able to attend.
3. Apparently, the case had not begun for the day. Sie and his attorney were not yet present. A large group of people were waiting outside Judge Cohn’s courtroom. These people turned out to be the jury panel, although I was unaware of this at that point in time.
4. I noticed a person named Jeanette Arrington outside the courtroom sitting on a bench, with Willie James Smith and Cassandra Moore and a few others. This angered me because I had been informed by several people that Jeanette was having an affair with my husband.
5. I challenged Jeanette about this affair outside the courtroom, raising my voice. My husband arrived and I addressed him in a loud voice as well. “I know you go with Sie,” I said to Jeanette. I used obscene words to describe her and her relationship with my husband.
6. I also loudly admonished Sie about this as well, stating, “I hope you get forty years; a man who cheats on his wife in the 90’s is a_fool” and I am not sure that Sie heard these things, but I am now concerned that the jury panel heard them.
The motion for new trial alleged that the wife had said that she knew appellant was guilty. The trial court denied the motions for new trial and for jury interview. It appears that the court ruled on the basis that appellant waived his right to object on these grounds. An evidentiary basis for such a waiver does not appear in this record. The wife’s affidavit skirts the issue by stating “I am not sure that Sie heard these things.” We remand for an evidentiary hearing. First, the court should determine whether, at the trial, appellant had knowledge of his wife’s conduct in the presence of the jury venire, either because he was within earshot during all or part of the tirade, or because someone told him about it. It is unclear from the affidavit how appellant’s wife “loudly admonished” him in a way that the jury panel could hear but appellant could not. If appellant knew of conduct potentially affecting the jury, but failed to timely bring it to the trial court’s attention, the incident may not be raised as a ground for new trial or for a jury interview. See Rooney v. Hannon, 732 So. 2d 408 (Fla. 4th DCA 1999). The line of authority followed in Rooney requires a party who learns of acts potentially impacting the jurors to advise the court as soon as possible. Such a requirement is not unfair, since improper contact with a jury venire is not a subtle issue; even a lay defendant can appreciate the problem of his wife screaming about his marital infidelities or guilt in front of potential jurors.
In Rooney, we identified the rationales behind the requirement that a party timely object to conduct affecting a jury to preserve the issue for a motion for new trial or appeal:
First, a timely objection provides the trial court with the opportunity to salvage a trial by ridding the jury of any improper influences through reinstruction or curative instruction.... Second, it is simply unfair to allow a party to hold back an objection like a trump card, ready to be played in the event of an unfavorable verdict.
Slip op. at 3, 732 So. 2d at 411 (citations omitted). In this case, a timely objection would have permitted the trial court to question the venire to determine what they heard, if anything. See, e.g., Street v. State, 636 So. 2d 1297, 1302 (Fla.1994). If a problem materialized, the court could have discharged the venire and called for a new panel. If appellant knew of the problem at the time, his failure to call it to the court’s attention precludes him from raising it in the motions for new trial and for jury interview.
If the trial court finds that the issue was not waived, the trial court should then consider whether the sworn factual allegations of appellant’s wife “if true, would require a trial court to order a new trial using the standard adopted in Hamilton.” Baptist Hosp. of Miami, Inc. v. Moler, 679 So. 2d 97, 100 (Fla.1991). If the court believes that the affidavit needs further amplification, before ruling on the request for a jury interview, the court should hold an evidentiary hearing concerning precisely what appellant’s wife said and whether there was any realistic possibility that the jury panel heard her comments. Any jury interview should be conducted pursuant to the .guidelines of Baptist Hospital.
Affirmed in part, reversed in part, and remanded.
DELL and KLEIN, JJ., concur. . State v. Hamilton, 574 So. 2d 124 (Fla.1991).
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Bush v. State, 809 So. 2d 107 (Fla. 4th DCA 2002)…e letters being included within the evidence placed into the jury’s hands during deliberation. Bush herself was responsible for the letters being given to the jury; she therefore waived her objection to their submission. See, e.g., Jenkins v. State, 732 So. 2d 1185, 1187 (Fla. 4th DCA 1999) (“If appellant knew of the problem at the time [the extrinsic evidence was given to jury], his failure to call it to the court’s attention precludes him from raising it in the motions for new trial and for jury interview.”)…
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Shawon Miles v. State, 839 So. 2d 814 (Fla. 4th DCA 2003)…Cameron v. State, 804 So. 2d 338 (Fla. 4th DCA 2001); Kijewski v. State, 773 So. 2d 124 (Fla. 4th DCA 2000). We reject them here as well. AFFIRMED. GUNTHER and WARNER, JJ., concur. . The third, if he did exist, was not found. . Jenkins v. State, 732 So. 2d 1185 (Fla. 4th DCA 1999), confirmed the applicability of Maler in criminal cases.…
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Kelton Forbes v. State, 753 So. 2d 709 (Fla. 1st DCA 2000)…missible only when “the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial[.]” Id. at 100 (emphasis added). See generally Wilding v. State, 674 So. 2d 114 (Fla.1996), and Jenkins v. State, 732 So. 2d 1185 (Fla. 4th DCA 1999) (confirming applicability of Maler standard in criminal cases). This court has stated that a juror’s “knowledge concerning one of the parties is considered to be a material fact,” and that concealment of a material fact relevant…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thewell Eugene Hamilton, 574 So. 2d 124 (Fla. 1991)
- Street v. State, 636 So. 2d 1297 (Fla. 1994)
- Winn-Dixie Stores, Inc. v. COX, 732 So. 2d 408 (Fla. 3d DCA 1999)
- Rooney v. Lawrence E. Hannon, M.D., P.A., 732 So. 2d 408 (Fla. 4th DCA 1999)