Harrison v. State

172 So. 3d 1018, 2015 Fla. App. LEXIS 13614, 2015 WL 5306230
CourtDistrict Court of Appeal of Florida
DecidedSeptember 11, 2015
DocketNo. 1D14-4387
StatusPublished
Cited by4 cases

This text of 172 So. 3d 1018 (Harrison v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. State, 172 So. 3d 1018, 2015 Fla. App. LEXIS 13614, 2015 WL 5306230 (Fla. Ct. App. 2015).

Opinion

PER CURIAM.

Appellant, John Edward Harrison, raises two issues on appeal challenging his judgment and sentence for selling or delivering cocaine. Because we agree with Appellant that the trial court abused its discretion by severely limiting defense counsel’s right to conduct individual voir dire on the defense of entrapment, as authorized by Florida Rule of Criminal Procedure 3.300(b), we reverse. In light of this result, we do not address the other issue on appeal.

Appellant was charged with one count of selling or delivering cocaine. During voir dire, defense counsel asked prospective jurors whether they had heard the word “entrapment” before and how they would define that term. As three prospective jurors provided their definitions of entrapment, defense counsel reminded the jurors several times that those were not the legal definitions of entrapment and the trial court would be providing the legal definitions, and confirmed that everyone on the venire was thinking about entrapment along the same lines as the three answers they had heard. Defense counsel then asked a prospective juror who has friends at the sheriffs office whether he would be open to considering an entrapment defense in the case. At that point, the State objected on the ground that “[t]his is improper,” and the trial court sustained the objection and denied defense counsel’s ensuing request for a sidebar discussion. Defense counsel in turn asked whether he was “being precluded from asking the jury if they will consider an entrapment defense,” and [1020]*1020the trial court responded, “You’re precluded from asking them that.” When the parties concluded their questioning of the prospective jurors, the trial court read the legal definition of entrapment to the venire and inquired whether “that change[d] anybody’s ability to be fair and impartial,” to which the jurors responded, “No.”

At trial, the jury was instructed on the defense of entrapment, Appellant’s sole theory of defense to selling or delivering cocaine to undercover policemen. The jury found Appellant guilty as charged, and the trial court adjudicated him guilty and sentenced him as an habitual felony offender to twenty-five years of imprisonment. This appeal followed.

A trial court’s limitation on the questioning of prospective jurors during voir dire is reviewed for an abuse of discretion. Hillsman v. State, 159 So.3d 415, 419 (Fla. 4th DCA 2015); see also Wyatt v. State, 78 So.3d 512, 534 (Fla.2011). The purpose of voir dire is to obtain a fair and impartial jury. Hillsman, 159 So.3d at 420. Although a trial court “ ‘has considerable discretion in determining the extent of counsel’s examination of prospective jurors,’ ” it “ ‘must allow counsel the opportunity to ascertain latent or concealed prejudgments by prospective jurors.’ ” Id. at 419 (internal citations omitted). A trial court should also allow “questions on jurors’ attitudes about issues where those attitudes are ‘essential to a determination of whether challenges for cause or peremptory challenges are to be made Id. at 420 (internal citation omitted). Florida Rule of Criminal Procedure 3.300(b) allows a trial court to examine prospective jurors individually or collectively, but also provides that “[c]ounsel for both the state and defendant shall have the right to examine jurors orally on their voir dire.... The right of the parties to conduct an examination of each juror orally shall be preserved.”

In Lavado v. State, the Florida Supreme Court held that the trial court’s refusal to allow defense counsel to ask prospective jurors about their willingness and ability to accept the defense of voluntary intoxication denied the defendant’s right to a fair and impartial jury. 492 So.2d 1322, 1323 (Fla.1986). There, defense counsel sought to question prospective jurors during voir dire about “ ‘their ability to entertain or accept the premise of voluntary intoxication as a defense,’ ” but the trial court permitted counsel to inquire only about a juror’s bias against drinking in general and to ask “only a general question regarding a prospective juror’s ability to follow the court’s instructions.” Id. The Supreme Court quoted Judge Pearson’s dissenting opinion in Lavado v. State, 469 So.2d 917, 919 (Fla. 3d DCA 1985), that “ ‘[i]f he knew nothing else about the prospective jurors, the single thing that defense counsel needed to know was whether the prospective jurors could fairly and impartially consider the defense of voluntary intoxication.’ ” Id. The Supreme Court adopted Judge Pearson’s dissenting opinion in its entirety as its majority opinion, quashed the Third District’s decision, and remanded for a new trial. Id. Judge Pearson had written in part:

It is apodictic that a meaningful voir dire is critical to effectuating an accused’s constitutionally guaranteed right to a fair and impartial jury.
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What is a meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried. The scope of voir dire therefore “should be so varied and elaborated as the circumstances surrounding the juror under examination in relation to the case on trial would seem to require.... ”
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[1021]*1021The inadequacy of generalized inquiry as well as the inadequacy of a juror’s general acknowledgment that he will follow the law and serve fairly and impartially, both of which are here involved, are addressed in People v. Stack, 128 Ill.App.3d 611, 83 Ill.Dec. 832, 470 N.E.2d 1252.

Lavado v. State, 469 So.2d 917, 919-21 (Fla. 3d DCA 1985) (Pearson, J., dissenting), decision quashed, 492 So.2d 1322 (Fla.1986).

Pursuant to Lavado, the Fourth District held in Walker v. State that the trial court abused its discretion by precluding defense counsel from fully inquiring about the prospective jurors’ understanding and opinions of the defense of entrapment. 724 So.2d 1232, 1233 (Fla. 4th DCA 1999). The Fourth District reversed and remanded for a new trial upon concluding that the trial court denied the defendant his right to a fair and impartial jury where “although defense counsel was permitted to inquire as to the jurors’ understanding of the term entrapment in its ordinary sense, he was precluded from inquiring as to whether they were willing to accept that defense.” Id. at 1234; see also Stevens v. State, 928 So.2d 409, 410-11 (Fla. 3d DCA 2006) (remanding for a new trial because the trial court abused its discretion during voir dire by depriving the defendant, of the opportunity to discuss or question the jury about the defense of necessity and limiting him to asking the jurors “if they had an open mind to defenses in general and whether they agreed that in life there are times when people feel they must take certain action and said action may be legally recognized as a defense to a criminal charge”); Ingrassia v. State, 902 So.2d 357, 358-59 (Fla.

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Bluebook (online)
172 So. 3d 1018, 2015 Fla. App. LEXIS 13614, 2015 WL 5306230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-fladistctapp-2015.