Weber v. State

501 So. 2d 1379, 12 Fla. L. Weekly 475
CourtDistrict Court of Appeal of Florida
DecidedFebruary 10, 1987
Docket86-184
StatusPublished
Cited by12 cases

This text of 501 So. 2d 1379 (Weber 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
Weber v. State, 501 So. 2d 1379, 12 Fla. L. Weekly 475 (Fla. Ct. App. 1987).

Opinion

501 So.2d 1379 (1987)

Charles WEBER, Appellant,
v.
The STATE of Florida, Appellee.

No. 86-184.

District Court of Appeal of Florida, Third District.

February 10, 1987.

*1380 Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee.

Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Before arriving at its verdict finding the defendant guilty as charged, the jury learned from a source extrinsic to the trial that Weber had been previously convicted of, and sentenced to 99 years in prison for, the crimes for which he was on trial and that the conviction and sentence had been reversed because of a technicality. On this appeal, the defendant contends that neither the trial court's admonition to the jurors to *1381 disregard this information nor the jurors' assurances to the trial court that the information would not affect their deliberations were sufficient to show that the jury was not influenced by its receipt of this highly prejudicial information and thus to show that the guilty verdict ultimately rendered by the jury had been decontaminated. Concluding that the defendant is correct, we again reverse his conviction and remand the cause for a new trial.

I.

A brief history is in order. Weber was first tried and convicted on the charges of attempted second-degree murder and the unlawful possession of a firearm while engaged in such attempted murder. This court affirmed Weber's conviction without prejudice, determining that his claim that he did not receive effective assistance of counsel at his trial should be first made in the trial court. Weber v. State, 411 So.2d 315 (Fla. 3d DCA 1982). In 1983, after the defendant was unsuccessful in obtaining relief in the trial court, we concluded that in the face of reasonable grounds to believe that he was not competent to have been placed on trial in 1981, his counsel should have demanded, and the trial court, even without counsel's demand, should have required, a competency hearing. This "technicality," as it was to be later called, resulted in our reversing Weber's conviction and ordering that he be retried, but only after he was found to be competent to stand trial. Weber v. State, 438 So.2d 982 (Fla. 3d DCA 1983). Underlying the seriousness of putting an arguably incompetent defendant on trial, we subsequently upheld a trial court ruling excluding from Weber's new trial the reported testimony of a prosecution witness given at Weber's first trial. Weber v. State, 466 So.2d 345 (Fla. 3d DCA 1985).

II.

We come now to Weber's second trial — the case before us. Having been found competent to stand trial, Weber apparently deemed himself fit not merely to assist counsel, but, with the trial court's begrudging imprimatur (not challenged on this appeal), undertook to represent himself. And, when the critical moment came, Weber's self-representation, if not the paradigm of good lawyering, was certainly adequate; the error of which he complains on appeal was safely preserved.

A.

During its deliberations, the jury gave the bailiff a note to the judge, who in turn summoned Weber and the prosecutor to inform them of its contents.

"THE COURT: Let the record reflect that everybody is present.
"Gentlemen, I have received a communication from the jurors. It says: To Judge Snyder. During the deliberations, the six jurors took a vote as to whether we believe Mr. Weber shot Ricky Facen. After the vote, one of the jurors commented that Mr. Weber was convicted of these charges in a case previously and received a 99-year sentence that was later overturned on appeal for a technicality. The source from which the information came was the jury pool room yesterday, Thursday, November 14th, 1985. Two people were discussing the case and the juror overheard the comment. The jurors proceeded to deliberate and reached a decision with regard whether [sic] Mr. Facen was shot by Mr. Weber. Is a decision as to the guilt or not of the charges the next step?[1] Did the information about the previous case in finding contaminate what was done so far and can we still proceed? Signed, Alberta Gokey, foreman."

Weber's reaction was unhesitating and clear:

"MR. WEBER: Mistrial, whatever you call it.
*1382 "THE COURT: [calling for the prosecutor's response] Mr. Merrill?
"MR. WEBER: Start a new trial Monday, Your Honor."

The court denied the defendant's motion for mistrial[2] and instructed the jury:

"THE COURT: Ladies and gentlemen of the jury, what you brought to my attention is a very serious situation. Now, let me say this:
"Whatever happened in this case prior to this should be of no concern to you and it's certainly no concern to me. I do not know these statements here are true as a matter of my checking into it. I have not examined the file. I do not know exactly what happened in the prior case or the reasons for it. That's not my job. My job is to try this case.
"Now, assuming that the information that you received was correct — it's possible that it was; I don't know, but it's possible that it was — would that in any way affect your deliberations in this case? Would that affect your ability to determine the facts in this case, whether Mr. Weber was convicted of these charges at a prior time and reversed on appeal or not?
"In other words, every time a person wins an appeal it's another case, it's another trial and another jury, not the jury that originally heard the case, has to come in and decide facts.
"It is unfortunate that you people, whoever it was, after my admonishment of you exactly to that effect even listened to it. This case has taken all week.
"Now, you just tell me if anybody is going to be tainted by this information? That's the way it is. Facts don't change.
"Let me go down the list."

The court thereupon asked each juror whether the information would affect him or her in any way and received from each a negative response. Satisfied with these answers, the court sent the jury back to resume deliberations. Before long, it returned a guilty verdict.

B.

It is well established that a requisite of the fair jury trial to which an accused is constitutionally entitled is that there be "a panel of impartial, `indifferent' jurors." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961)). While it is also said that a juror may be deemed to be fair and thus qualified to sit even though not "totally ignorant of the facts and issues" in the case, a juror's assurance that he is equal to the task of laying aside his impressions or preconceived notions is not dispositive of the question of the juror's ability to be impartial, indifferent, and fair. Murphy v. Florida, 421 U.S. at 800, 95 S.Ct. at 2036, 44 L.Ed.2d at 594-95.

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Cite This Page — Counsel Stack

Bluebook (online)
501 So. 2d 1379, 12 Fla. L. Weekly 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-state-fladistctapp-1987.