Opinion
Case No. 5D18-929
07-12-2019
STATE OF FLORIDA, Appellant, v. MITCHELL AARON NEEDELMAN, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. Lisabeth J. Fryer, of Lisabeth J. Fryer, P.A., Lake Mary, and William R. Ponall, of Ponall Law, Maitland, and Warren W. Lindsey, of Lindsey & Ferry, P.A., Winter Park for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge. Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. Lisabeth J. Fryer, of Lisabeth J. Fryer, P.A., Lake Mary, and William R. Ponall, of Ponall Law, Maitland, and Warren W. Lindsey, of Lindsey & Ferry, P.A., Winter Park for Appellee. EDWARDS, J.
Jurors who tweet, blog, and surf continue to disrupt and derail lengthy trials, resulting in mistrials and the unnecessary waste of public and private resources. A jury trial that lasted approximately two weeks and resulted in guilty verdicts against former Brevard County Clerk of the Court, Mitchell Aaron Needelman, will have to be retried because one juror, Lisa Mausner, refused to follow the trial court's instructions that jurors, on penalty of contempt of court, were not to do any online research into the facts or law. The situation here appears to be unique in that the juror's misconduct arguably affected only two of the four counts for which guilty verdicts were returned. For the reasons discussed below, we affirm the trial court's order that granted a new trial as to all counts.
See James A. Edwards, Jurors Who Tweet, Blog & Surf—Deciding and Discussing Your Case (pts. I & II), 77 Orange Cty. Bar Ass'n - Briefs 20, no. 10 (2009), 77 Orange Cty. Bar Ass'n - Briefs 32, no. 11 (2009).
POSTTRIAL DISCOVERY OF JUROR MISCONDUCT
The possibility of juror misconduct was raised posttrial when another juror approached defense counsel in the parking lot and suggested there had been improper deliberations prior to closing arguments. That allegation was investigated through court-ordered questioning and found to be unsubstantiated. When interviewing jurors regarding the original claimed juror misconduct, it came to light that Juror Mausner had repeatedly engaged in online legal research and had shared her results with some of the other jurors.
During the posttrial questioning, Juror Mausner reluctantly admitted that she did a Google search to determine whether the proper number of jurors was being seated. She advised some of her fellow jurors that instead of twelve jurors, there would be only six actual jurors with two others serving as alternates.
As questioning continued, Juror Mausner repeatedly denied doing any other legal research. However, when pressed, she very reluctantly confirmed what others had already told the trial court—she did a search "just out of curiosity" to find out what potential sentence Needelman faced if convicted of bribery. She did not initially admit that she told others about the possible sentence, but finally confessed that it "came up" during deliberations. Another juror testified that Juror Mausner provided information about the possible sentence because he was concerned that the penalty for bribery could be fifty years in prison. Juror Mausner said she might have told other jurors that she had done some general research and that the penalty was five to ten years. Juror Mausner admitted that she "might have" looked up the definition of bribery as well and could have shared that with others on the jury. She also improperly shared her work-related knowledge with the jury by advising them that the judge would order a presentence investigation before determining the penalty that would be imposed.
The trial court described Juror Mausner's testimony as "evasive." The record does not reflect whether Juror Mausner was found in contempt of court or otherwise held accountable for her misconduct.
According to Florida Rule of Criminal Procedure 3.390(a), it is improper to instruct the jury on what sentence a defendant may face if convicted.
According to her testimony, Juror Mausner was a paralegal working for a local law firm. --------
The trial court found that what Juror Mausner had done amounted to juror misconduct that could have affected deliberations. More specifically, the trial court noted that the "definition of bribery was the central issue in two of the charged counts and any possibility that a juror or the jurors collectively relied upon an incorrect definition of that term must be deemed to be prejudicial." A new trial on all counts was ordered; however, the trial court did not announce why the new trial would not be limited to only the bribery and conspiracy to commit bribery charges that were directly related to the juror's misconduct. The State concedes that a new trial is appropriate for the two bribery-related counts. However, the State argues that because there was no evidence regarding juror misconduct or provision of extrinsic information on the bid tampering and official misconduct counts, the jury's deliberations on those charges were untainted, so that those two guilty verdicts should not have been disturbed.
STANDARD OF REVIEW
A trial court's order granting a new trial is reviewed for an abuse of discretion. Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639, 644 (Fla. 4th DCA 2008). On appeal, this amounts to a reasonableness test: "If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion." Brown v. Estate of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). A trial court is given broader discretion to grant a new trial than to deny one. Thigpen, 990 So. 2d at 645. Such a ruling "should not be disturbed in the absence of a clear showing that [discretion] has been abused." Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959).
UNAUTHORIZED EXTRINSIC INFORMATION AS GROUNDS FOR NEW TRIAL
Prejudice as a result of juror misconduct is a ground for granting a new trial. Fla. R. Crim. P. 3.600(b)(4). Juror misconduct includes the improper introduction of outside factual or legal material into deliberations, given the long-standing legal principles that the jury must: (1) consider only the evidence presented at trial, and (2) "get their instructions as to the law of the case from the court" and from no other source. Johnson v. State, 9 So. 208, 213 (Fla. 1891); see State v. Hamilton, 574 So. 2d 124, 126 (Fla. 1991) ("The introduction of unauthorized materials conceivably could have a powerful and often unascertainable impact on a verdict or jury recommendation, potentially violating the right to a fair trial guaranteed by the state and federal constitutions.").
However, jurors' exposure to unauthorized materials is not per se reversible error. Once it is determined that extrinsic information was made available to the jury, "the State has the burden of proving that there is no reasonable possibility of prejudice to the defendant. That is to say, the State must demonstrate that the error was harmless." Williamson v. State, 894 So. 2d 996, 998 (Fla. 5th DCA 2005) (citing Hamilton, 574 So. 2d 124).
In Smith v. State, for example, the Florida Supreme Court reversed for a new trial because the trial court sent the jury a dictionary during deliberations. 95 So. 2d 525, 528 (Fla. 1957). The court reasoned that only the trial court judge is "authorized by law to give definitions and explanations to a jury." Id. On the other hand, in Hamilton, the Florida Supreme Court reversed the trial court's grant of a new trial on the charge of first-degree murder, reasoning that the introduction of muscle-car magazines into the deliberation room, without any juror consulting them, did not warrant a new trial. 574 So. 2d at 131. The court reasoned that there was no reasonable possibility that the verdict was affected by "materials that jurors did not consult, especially when those materials [were] irrelevant to the factual and legal issues." Id. (citations omitted).
The State argues that there are important distinctions between the subject trial and the circumstances present in some of the cases relied upon by the trial court in its new trial order. In Grissinger v. Griffin, for example, the jury was given an entire dictionary from which they could "proceed to torture the words in the court's charge from their true meaning." 186 So. 2d 58, 59 (Fla. 4th DCA 1966). Here, by contrast, only one extrinsic definition was available to the jury. Moreover, in Grissinger there was only one issue at trial, as the parties stipulated to trying the case "upon the issue of liability only," while in this case there were multiple counts, and the extrinsic definition arguably only related to two of them. See id.
The State also challenges the trial court's reliance on Tapanes v. State, 43 So. 3d 159, 160 (Fla. 4th DCA 2010), in which a juror used a smartphone to look up the definition of the word "prudent" in a trial for murder. At trial the defendant claimed self-defense, the jury was instructed on self-defense, and the self-defense instructions relied on the word "prudent." Id. at 163. Reasoning that the introduction of an outside definition tainted the trial, the fourth district reversed the trial court's finding that the misconduct was harmless and remanded for a new trial. Id. As in Grissinger, there was only a single charge in Tapanes and the juror's improper online research directly related to that charge. Id. The State argues that in this case, on the other hand, there were multiple counts, and the outside research affected only two of the four total guilty verdicts.
It is true that a trial court can, and sometimes should, grant a new trial only as to one or a limited number of counts or claims in a multi-count criminal or civil action. See, e.g., Carter v. State, 53 So. 3d 1248, 1248-49 (Fla. 2d DCA 2011) (limiting a new trial to one count because flawed jury instruction did not affect other counts); Williams v. State, 901 So. 2d 357, 358-60 (Fla. 2d DCA 2005) (reversing on count one, which was affected by judge's breach of neutrality, but affirming on count two); Wright v. State, 453 So. 2d 440, 441 (Fla. 4th DCA 1984) (reversing a single count but affirming other convictions when evidence was improperly admitted that affected only the reversed count). And in the civil arena, a jury's verdict on liability is often affirmed with a new trial being ordered only as to damages.
In this case, however, while the bid rigging and official misconduct charges were set forth as separate counts, they were arguably all part of the alleged bribery scheme and attempts to cover it up. Furthermore, exploring the impact of this unauthorized material on the mental processes of the jurors by questioning them is impermissible, as it seeks to examine a matter that necessarily inheres in the verdict itself. See Simpson v. State, 3 So. 3d 1135, 1143 (Fla. 2009). "Any receipt by jurors of prejudicial nonrecord information constitutes an overt act" subject to judicial inquiry, but "that inquiry may not be expanded to ask jurors whether they actually relied upon the nonrecord information in reaching their verdict." Baptist Hosp. of Miami, Inc. v. Maler, 579 So. 2d 97, 100-01 (Fla. 1991).
CONCLUSION
Neither the parties nor this Court located any decisions in which similar juror misconduct clearly tainted some counts, while others were not affected or were less obviously affected by the inappropriately gathered and shared extrinsic legal information. Based on our discussion above, we affirm, finding that the State has failed to meet its burden of showing that the trial court clearly abused its discretion in ordering a new trial as to all counts. See Cloud, 110 So. 2d at 673.
AFFIRMED. ORFINGER and WALLIS, JJ., concur.