On the day the jury was sworn – after a week of voir dire – a prospective juror got a traffic ticket. The ticket was for the “crime” of knowingly driving on a suspended license, a second-degree misdemeanor. No one in the courtroom on that day asked her about it. She didn’t tell anyone about it. And she ended up serving on the jury that convicted Jason Tucker of premeditated first-degree murder. Tucker appealed his conviction on the grounds that Florida Statute 40.013(1) states: “No person who is under prosecution for any crime…shall be qualified to serve as a juror.” On Friday, the Fifth District Court of Appeal, while recognizing the undisputed nature of the “crime,” rejected his argument and affirmed the conviction. Tucker v. State, 987 So. 2d 717 (Fla 5th DCA 2008).
The Appellate Court affirmed the conviction for two reasons: 1) this prospective juror was not “under prosecution” for this crime in this scenario (as used in the jury qualification statute) because the state attorney had not exercised his discretion to pursue the charges against her through formal judicial proceedings (i.e. merely getting the ticket was not enough), and 2) even if this juror was “under prosecution” during jury service, a new trial was not warranted because there was no showing of prejudice by Tucker.
June 23rd, 2008
Today the Fourth District Court of Appeal reversed a criminal conviction because the trial judge failed to strike for cause a juror who “held conflicting views” on the presumption of innocence. Initially, during jury selection the juror stated “he’s guilty until proven innocent,” but later said “I think it was a misunderstanding earlier…,” and then went on to state ”I can be fair and impartial.” The Court looked at the entirety of the juror’s comments (which are set forth in the opinion) and concluded there was reasonable doubt about the juror’s ability to serve in the case. The Court reiterated the long-standing principle that “close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving a doubt as to impartiality.” Joseph v. State, 983 So. 2d 781 (Fla 4th DCA 2008.)
The opinion also sets forth the procedural steps which must be taken in order to preserve error in this situation. Defense counsel properly: 1) used all peremptory challenges, 2) requested an additional peremptory challenge, 3) objected to the court’s denial of the request for additional peremptory challenges, and 4) identified the juror he was required to accept as objectionable. The court noted, “It is not necessary that a defendant explain why the venireperson for whom the additional peremptory challenge was sought was objectionable; they must merely identify that individual as objectionable.”
Bottom line: The juror’s statements, taken in their entirety, and although coupled with an expression that she could be fair and impartial, raised a reasonable doubt about her impartiality, and she should have been excused for cause.
June 18th, 2008
On the day the jury was sworn – after a week of voir dire – a prospective juror got a traffic ticket. The ticket was for the “crime” of knowingly driving on a suspended license, a second-degree misdemeanor. No one in the courtroom on that day asked her about it. She didn’t tell anyone about it. And she ended up serving on the jury that convicted Jason Tucker of premeditated first-degree murder. Tucker appealed his conviction on the grounds that Florida Statute 40.013(1) states: “No person who is under prosecution for any crime…shall be qualified to serve as a juror.” On Friday, the Fifth District Court of Appeal, while recognizing the undisputed nature of the “crime,” rejected his argument and affirmed the conviction. Tucker v. State, 987 So. 2d 717 (Fla 5th DCA 2008).