          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2224
                  _____________________________

CHARLAYA JOANNE ELAINE
MOORE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.

                         August 23, 2019


M.K. THOMAS, J.

     Appellant asserts she is entitled to a new trial because the
trial court erred in accepting a jury verdict where it was not clear
during polling of the jury whether one of the jurors agreed with the
verdict or repudiated it. We disagree and affirm.

     Following a trial, the jury returned a verdict finding Appellant
guilty of aggravated assault on a law enforcement officer, fleeing
or attempting to elude a law enforcement officer, and resisting an
officer with violence. Appellant requested to have the jury polled.
The clerk asked each juror if this was their “true and correct
verdict.” The last juror responded with “Reluctantly.” At a bench
conference, defense counsel requested to explore her answer.
However, the trial court denied the request, stating:

    No, ma’am. I don’t have any intention of doing it. I don’t
    know that there is any case law that would require it. I
    suspect a lot of people reluctantly reach verdicts, because
    they don’t like what the situation is, or they don’t like the
    law, but, reluctantly, they may do it because they know
    that they are duty bound to make certain findings . . .

And when defense counsel noted that the juror appeared
visibly disturbed, the trial court stated:

    I get a lot of jurors that are visibly disturbed. I get people
    who are crying and visibly they are upset, and visibly of
    things that take place, so I’m really – you know, at this
    point there is no reason to inquire any further, so I don’t
    intend to do it. As I said, I think a lot of jurors probably
    may reluctantly – I don’t think anybody joyously jumps
    onto a verdict and says, This is the greatest thing I’ve
    ever had to do. So, there you go.

The trial court then dismissed the jury. Appellant, thereafter,
moved for a new trial, raising several issues. Pertinent to this
appeal, Appellant argued that the trial court erred in denying her
request to further question the last juror regarding her response
during the jury polling. She contended that the response was
ambiguous and did not reflect consent with the verdict. The trial
court denied the motion for new trial and sentenced Appellant to
concurrent terms of three years in prison.

     This Court reviews for an abuse of discretion the trial court’s
decision to accept a verdict. See Harper v. State, 66 So. 3d 1092,
1092 (Fla. 3d DCA 2011). Florida Rule of Criminal Procedure
3.440 outlines the procedure for rendering a jury verdict. Under
this rule, the trial court asks the foreperson if the jury panel
reached an agreement on the verdict. Fla. R. Crim. P. 3.440. If
the foreperson answers affirmatively, the verdict is delivered to
the clerk to read and record. Id. Where, as here, the jury is polled,
the verdict is not recorded immediately. The jury polling is


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conducted pursuant to Florida Rule of Criminal Procedure 3.450,
which provides:

    On the motion of either the state or the defendant or on
    its own motion, the court shall cause the jurors to be
    asked severally if the verdict rendered is their verdict. If
    a juror dissents, the court must direct that the jury be
    sent back for further consideration. If there is no dissent
    the verdict shall be entered of record and the jurors
    discharged. However, no motion to poll the jury shall be
    entertained after the jury is discharged or the verdict
    recorded.

Thus, if a juror indicates that the verdict was not theirs, the trial
court is required to send the jury back for further deliberations.
Otherwise, if no juror dissents, the verdict is recorded, and the jury
is discharged. See Simpson v. State, 3 So. 3d 1135, 1142 (Fla.
2009). If a juror’s answer is ambiguous, the trial court has
discretion to seek clarification. See Brutton v. State, 632 So. 2d
1080, 1083 (Fla. 4th DCA 1994); Gonzalez v. State, 627 So. 2d 63,
64 (Fla. 2d DCA 1993). The jury’s verdict cannot be rendered
unless all the jurors concur in it. Fla. R. Crim. P. 3.440; see also
Perry v. State, 10 So. 3d 695, 697 (Fla. 1st DCA 2009) (“Although
neither the Florida nor Federal Constitutions contain the term
‘unanimous’ in connection with jury trials or verdicts, the
requirement that a jury verdict in a criminal case must be
unanimous has long been recognized in Florida.”).

     In the instant case, the trial court did not err in accepting the
verdict after the jury was polled and discharged. During the
polling, the last juror’s response of “reluctantly” was not
ambiguous and did not necessarily need clarification or further
deliberation.    The answer merely expressed some sort of
reservation about the decision, but it remained an affirmative
answer. She agreed that it was her verdict, which is the only
requirement in rule 3.450. See Ferrell v. Jones, 2017 WL 7230428
(N.D. Fla. July 24, 2017) (holding that juror’s answer of “yes, with
regrets” was not a clear expression of reasonable doubt or a dissent
from the verdict); see also Young v. State, 236 S.E.2d 1 (Ga. 1977)
(stating that juror’s poll response that he had “reservations” did
not prevent the verdict from being unanimous; only requirement

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was that juror agree to verdict, which he did). The last juror did
not expressly state the verdict was not her verdict. Cf. Gonzalez,
627 So. 2d at 64 (concluding that juror clearly indicated verdict
was for one of defendants); Cogmon v. State, 338 So. 2d 562, 563
(Fla. 1st DCA 1976) (holding that juror’s statement, that she went
along with verdict because other jurors had reached guilty
conclusion, did not disavow her earlier clear repudiation of
verdict). Therefore, she did not repudiate the guilty verdict.

     Appellant cites a 1996 case from Maryland for support of her
argument that the “reluctant” statement was ambiguous and
required clarification. In Bishop v. State, 341 Md. 288 (1996), a
juror first responded to a poll with “uhh, reluctantly, yes.”
Following a bench conference in which defense counsel requested
the trial court to seek clarification, the trial judge instructed the
clerk to start over with the jury polling. Id. at 290. In the second
poll, the juror individually answered affirmatively with no
qualifying words. Id. The clerk then asked the jury panel as a
group whether their verdict was guilty. Id. at 290-91. Defense
counsel noted that the same juror did not respond to the question
and, because the juror clearly had reservations and was visibly
upset, moved for a mistrial. Id. at 291-92. The trial court denied
the motion, declined to send the jury back for additional
deliberations or to seek clarification, and discharged the jury.

     The Maryland Court of Appeals reversed, holding that the
juror’s response was ambiguous and that the trial court’s actions
were not appropriate to resolve the ambiguity. Id. at 292. The
Maryland court relied upon its earlier decision in Lattisaw v. State,
329 Md. 339 (1993), in which a “with reluctance” response was
determined to be ambiguous when accompanied by the juror being
visibly upset and shaking her head.

     Here, the trial court did not abuse its discretion in declining
to resolve any ambiguity in the juror’s response. Unlike in the
Maryland cases, her response was not accompanied by any
negative actions. Although defense counsel noted she was “visibly
disturbed,” the record does not reflect that she was visibly upset,
crying, or shaking her head when she gave her response. In
addition, the trial court was in the best position to determine
whether the juror’s response reflected any confusion or uncertainty

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with the verdict or whether she merely disliked having to decide.
Appellant’s judgment and sentence is affirmed.

    AFFIRMED.

B.L. THOMAS and KELSEY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




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