ANDRE DURANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Durano appeals his conviction for assault and battery and resisting arrest with violence. The appellate court reversed and remanded for a new trial, finding that jury deliberations were compromised by extrajudicial communications that violated the defendant's right to an impartial jury.
The trial court erred in refusing to grant a mistrial. The jury could not have deliberated free from outside or improper influences under these circumstances, violating the defendant's paramount right to an impartial jury. The conviction must be reversed and the case remanded for a new trial.
[1] A jury's deliberation must be free from outside or improper influences to ensure an impartial trial.
[2] A trial court errs by failing to grant a mistrial when a juror engages in ex parte communication concerning the case.
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Join FLexlaw to unlock all legal intelligence“It is patently clear from the record that the jury could not have deliberated, under the circumstances as set out in the record, free from all outside or improper influences as is necessary to an impartial trial.”
Establishes that the jury's deliberations were compromised by extrajudicial communications
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Join FLexlaw to unlock all legal intelligenceAfter closing arguments but before jury instructions, a juror engaged in a conversation with someone outside the courtroom about matters relating to t…
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The Defendant appeals his conviction of assault and battery and resisting arrest with violence from the Criminal Court of Record In and For Dade County, Florida.
Among the other points raised on appeal, the defendant urges that the trial judge committed error in refusing to grant a mistrial after one of the jurors joined in a conversation with someone outside of the courtroom concerning matters relating to the trial. After final argument to the jury had been made by counsel for the state and defense, but before instruction by the court, the jury was excused and the defense brought the matter of the conversation with the juror to the attention of the court. The jury was brought back in, given instructions by the court, and sent out to deliberate their verdict. Counsel for the defendant made a motion for mistrial whereupon the judge called each juror back into the courtroom individually and questioned them as to whether or not they had had any conversation with anyone regarding the case. After each juror insisted no conversation took place, they were excused to continue their deliberation. Later, the jury was brought back in collectively and told of the witness’ statement concerning the alleged conversation whereupon one of the jurors indicated that he had engaged in conversation with someone out of the courtroom. The five remaining jurors were excused and sent back to the jury room. After further questioning, the remaining juror was excused to return to the jury room to continue deliberations with the remainder of the jury. Subsequently, the juror was called back into the courtroom" to be questioned in regard to the alleged conversation. After the questioning and as he was returning to the jury room, the juror advised the court that the jury had arrived at a verdict. After awhile, the jury was sent to the coffee shop and given the opportunity to obtain refreshments, however, they were instructed to stay together. Upon their return their verdict of guilty as charged was made known.
It is patently clear from the record that the jury could not have deliberated, under the circumstances as set out in the record, free from all outside or improper influences as is necessary to an impartial trial. Owens v. State, 68 Fla. 154, 67 So. 39 (1914).
The right of a defendant to have a jury deliberating his guilt or innocence free from any distractions, outside or improper influences is a paramount right which must be closely guarded. We feel the court should have abided by its expressed inclination to grant a mistrial, and therefore the case should be remanded to the lower court for a new trial. In view of this holding, we need not consider the assault and battery separately. We reverse the conviction on each count.
The other points raised on appeal do not need to be considered in view of this opinion.
Reversed and remanded for new trial.
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Livingston v. State, 458 So. 2d 235 (Fla. 1984)…re is no specific authority by statute or rule for the action of the trial court judge. The right of a defendant to have the jury deliberate free from distractions and outside influences is a paramount right, to be closely guarded. Durano v. State, 262 So. 2d 733 (Fla. 3d DCA 1972). For example, where an overnight recess was taken in the midst of jury deliberations, after the giving of an Allen charge to the deadlocked jury, and the jurors were allowed to separate without admonitions, it was held that the tr…
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Ford v. State, 374 So. 2d 496 (Fla. 1979)…jury from the outset. First, the court promptly questioned Huber about the incident, and the juror denied categorically that he told his companions at the racetrack anything beyond the fact that he was sitting on the Ford case. Thus Durano v. State, 262 So. 2d 733 (Fla.3d DCA 1972), relied upon by appellant, is inapplicable because there the juror admitted discussing the merits of the case with an outsider. Second, even if one believes the anonymous tipster’s story, as related by defense counsel’s secretary,…
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Taylor v. State, 498 So. 2d 943 (Fla. 1986)…s in noncapital cases are just as likely to be subjected to a myriad of subtle influences as jurors in capital cases. Therefore, we see no reason to apply a different rule in noncapital cases as distinguished from capital cases. In Durano v. State, 262 So. 2d 733 (Fla. 3d DCA 1972), which, like the present case, concerned a prosecution for a serious but not a capital felony, the court said: “The right of a defendant to have a jury deliberating his guilt or innocence free from any distractions, outside or imp…
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- Owens v. State, 68 Fla. 154 (Fla. 1915)