DANNY CAROL GARLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Garland was convicted of attempted second-degree murder and appealed the trial court's unilateral dismissal of a juror during lunch recess without notice to the parties. The court held that while notification of parties is better practice, no fundamental error occurred because no express rule required it and there was no ex parte communication with the deliberating jury.
The trial court's dismissal of the juror did not constitute fundamental error. While better practice would require notifying parties before dismissing a juror, no express rule required such notification, there was no ex parte communication with the jury that decided the case, and failure to object below waived appellate review of the issue.
[1] A trial court's unilateral dismissal of a juror, absent a specific rule requiring notification to the parties, does not constitute fundamental error when the defendant fa…
[2] Ex parte communication with a deliberating jury panel that has already decided the case is distinguishable from a trial court's ex parte determination to excuse a juror f…
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“any communication with the jury outside the presence of the prosecutor, the defendant, and defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless.”
The Ivory standard for ex parte jury communications that would constitute per se error
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Join FLexlaw to unlock all legal intelligenceDuring trial for attempted second-degree murder, a juror approached the trial judge during lunch recess and was excused after the judge determined the…
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COBB, Judge.
During the course of trial, which ultimately resulted in the appellant’s conviction of attempted second degree murder, a juror approached the trial judge during lunch recess and was excused upon the judge’s determination that he was “disoriented.” Neither the appellant nor the state was present at the time of the dismissal. After the recess, an alternate juror was seated and the ease proceeded without objection or motion for mistrial.
On appeal, the appellant contends that the trial court’s unilateral action constituted fundamental error based upon Ivory v. State, 351 So. 2d 26 (Fla.1977). In Ivory, the trial judge, in contravention of Florida Rule of Criminal Procedure 3.410, responded to a jury’s request for additional information without notice to, and outside the presence of, the defendant and respective counsel. The court found this ex parte communication to be harmful per se because “any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.”
We agree with the state that Ivory is readily distinguishable. In that case, a specific rule of criminal procedure was violated and there was an ex parte communication with the deliberating jury panel which decided the case. Neither of these facts is present here. There is no express rule requiring notification to parties prior to a trial court’s dismissal of a juror1 and, in this case, there was no ex parte communication to any juror that decided the case. The appellant does not suggest on appeal that the trial court lacked a sufficient basis for concluding that the excused juror was disoriented and should be excused, and trial counsel’s failure to object indicates at least tacit approval of the court’s action. We find that this failure to object below waived appellate review of this issue, and that no fundamental error was committed. Davis v. State, 461 So. 2d 67 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985); see also, Harvey v. State, 529 So. 2d 1083 (Fla.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989).
AFFIRMED.
HARRIS, C.J., and W. SHARP, J., concur. . Clearly, however, it is better practice for the trial court to notify the parties prior to dismissal of a juror and to make sure any such action and the reasons for it are adequately reflected in the record.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Donnie Lee Ivory v. State, 351 So. 2d 26 (Fla. 1977)
- Davis v. State, 461 So. 2d 67 (Fla. 1984)
- Gonzalez-Mares v. United States, 473 U.S. 913 (U.S. 1985)
- Harvey v. State, 529 So. 2d 1083 (Fla. 1988)
- Honolulu Fed. Sav. & Loan Assn. v. Murabayashi, 489 U.S. 1040 (U.S. 1989)