212 So. 3d 1104
Fla. Dist. Ct. App.2017Background
- Appellant convicted of resisting an officer without violence and possession of <20 grams of cannabis; appealed based on alleged jury contamination.
- After jury was instructed and sent to deliberate, the alternate juror was discharged and told to give up her juror button/notes.
- Shortly after deliberations began, prosecutors observed a primary juror take the alternate juror’s notepad into the jury room; the bailiff promptly retrieved the notepad within a minute or two.
- Proceedings were placed briefly off the record; no defense objection, inquiry, curative instruction request, or motion for mistrial was made at trial.
- The trial court recessed and the notepad was retrieved; appellant later argued on appeal this constituted fundamental error because a “stranger” (the alternate or her materials) intruded into deliberations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alternate juror’s notepad being carried into the jury room constituted fundamental error requiring reversal | The brief presence of the alternate’s notepad in the jury room was equivalent to a stranger’s intrusion and presumptively prejudicial, mandating reversal | The alternate juror was discharged before deliberations; the notepad was promptly retrieved and any intrusion was de minimis or harmless; defense failed to preserve objection | Not fundamental error; at most harmless. Affirmed. |
Key Cases Cited
- Bouey v. State, 762 So. 2d 537 (Fla. 5th DCA 2000) (presence of alternate during deliberations is presumptively prejudicial)
- Fischer v. State, 429 So. 2d 1309 (Fla. 1st DCA 1983) (reversal where alternate participated in deliberations)
- Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974) (presence of alternate juror could restrain jurors or affect verdict)
- Jacksonville Racing Ass’n v. Harrison, 530 So. 2d 1001 (Fla. 1st DCA 1988) (harmless error where alternate present only during organizational activity)
- Hargrove v. CSX Transp., Inc., 631 So. 2d 345 (Fla. 2d DCA 1994) (failure to timely object forfeits opportunity for remedial measures when extraneous material is discovered)
- Johnson v. State, 164 So. 3d 794 (Fla. 1st DCA 2015) (juries are presumed to follow instructions)
- Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 939 (Fla. 2000) (same presumption that juries follow instructions)