BLAIR
v.
STATE, 15 AP 21
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Marion Blair appealed the denial of his motion for mistrial and exclusion of testimony. The appellate court reversed the trial court's removal of a juror without evidence of misconduct and remanded for a new trial, while affirming the exclusion of testimony regarding Blair's post-arrest hospitalization.
The removal of the juror without evidence of misconduct was an abuse of discretion warranting reversal and a new trial. The exclusion of testimony regarding Blair's hospitalization was not an abuse of discretion and was properly upheld.
[1] A trial court abuses its discretion by removing a juror without evidence of misconduct.
[2] The removal of a juror must be predicated on a finding of misconduct, which requires evidence that the juror violated an order or instruction of the court.
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“The Court finds that the removal of the juror without any evidence of misconduct on his part was an abuse of discretion.”
Establishes the core holding that juror removal requires evidence of misconduct
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Join FLexlaw to unlock all legal intelligenceDuring trial, a juror was removed and replaced with an alternate juror. Blair moved for a mistrial based on the juror removal. Blair also sought to in…
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PER CURIAM.
FINAL ORDER AFFIRMING IN PART AND REVERSING IN PART TRIAL COURT
Marion Blair (“Appellant”) appeals the denial of his motion for mistrial, and the exclusion of certain testimony. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1).
Appellant argues that the court erred in failing to grant a mistrial after removing a juror and replacing him with the alternate, without first questioning the juror and determining whether there was any misconduct on his part. Appellee argues that removing the juror was within the court’s discretion and that if there were any error, such was harmless as the juror was replaced by a competent alternate juror. The Court finds that the removal of the juror without any evidence of misconduct on his part was an abuse of discretion. See Washington v. State, 955 So. 2d 1165 (Fla. 1st DCA 2007) (holding that the removal of a juror must be predicated on a finding of misconduct, which requires evidence that the juror violated an order or instruction of the court. “Reconfiguring the jury panel based on nothing more than the perceived impressions a juror holds about the case” was error which warranted reversal.)
Regarding Appellant’s second claim, the Court finds that the exclusion of testimony by Appellant that he was hospitalized with breathing problems subsequent to his arrest was not an abuse of discretion.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Final Judgment and Sentence is Reversed and the matter Remanded for a new trial.
DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this 18th day of December, 2015.
/S/
PATRICIA A. DOHERTY
Presiding Circuit Judge TURNER and WOOTEN, JJ., concur. Certificate of Service
I HEREBY CERTIFY that a copy of the foregoing Final Order Affirming in Part and Reversing in Part Trial Court has been provided to Tammy Hammack, Assistant Public Defender, to Carol Levin Reiss, Assistant State Attorney, 415 North Orange Avenue, Orlando, Florida 32801, and to The Honorable Martha C. Adams, 425 North Orange Avenue, Orlando, FL 32801 this 18th day of December, 2015.
/S/
Judicial Assistant