       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 23, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-614
                         Lower Tribunal No. 09-176-M
                             ________________


                             Pierson Villalobos,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Monroe County, Ruth L. Becker,
Judge.

     Carlos J. Martinez, Public Defender, and James Moody, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.


Before SUAREZ, EMAS and SCALES, JJ.

      EMAS, J.
      Appellant, Pierson Villalobos (“Villalobos”) appeals from a judgment of

conviction and sentence, challenging the trial court’s failure to dismiss a juror after

that juror revealed, during the trial, his knowledge of and relationship with a

testifying state witness.

      Villalobos was charged with two counts of DUI manslaughter following a

car accident in Monroe County. During voir dire, the court read a list of potential

witnesses to the jury venire and specifically inquired whether any of the venire

members knew of, or had a prior business or social relationship with, anyone on

the witness list. The list included blood analyst “Jody Gyokeres of Marathon.”

Venire members James Stelzer and John Arvidson remained silent in response to

the court’s question and did not acknowledge that they knew Ms. Gyokeres.

Stelzer and Arvidson were both eventually selected as jurors.1

      Trial ensued and the State presented evidence that while intoxicated and

driving in Monroe County, Villalobos crossed the median line and struck another

car, killing both the driver and passenger. On the third day of trial, Trooper Elmo

Williams was called to the stand and testified that after responding to the accident

scene, he accompanied Villalobos to the hospital to conduct a blood draw, at which

time he observed Gyokeres draw Villalobos’ blood.            During a break in the


1 In response to the reading of the witness list, four other venire members disclosed
that they knew one of the potential witnesses listed by the court, and all four jurors
were stricken.
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trooper’s testimony, and outside the presence of the other jurors, juror Stelzer

revealed to the court and counsel that he knew witness Gyokeres. During the

questioning that followed, Stelzer explained that he believed he used to live in the

same building as Gyokeres’ boyfriend, that Stelzer and Stelzer’s wife had known

the couple for a few years, they had dinner together a couple of times, and that a

few days before the trial, Stelzer’s wife attempted to make plans with Gyokeres.

In response to further questioning, Stelzer said he did not believe his relationship

with Gyokeres would affect his ability to render a fair and impartial decision.

Nonetheless, and at the defense’s request, the trial court dismissed Stelzer due to

his relationship with the witness.

      Thereafter, trial resumed with the remainder of Trooper Williams’

testimony. During a break at the conclusion of the trooper’s testimony, juror

Arvidson asked to speak to the court. Outside the presence of the other jurors,

Arvidson revealed the following information to the court and counsel:

      - Arvidson had been employed by Gyokeres as a carpenter/handyman to

         perform work on her house at various times over the past four years;

      - Arvidson saw Gyokeres around town every three to four months;

      - Arvidson performed repair work for Gyokeres approximately two months

         before the trial;




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      - Gyokeres paid Arvidson directly, writing him checks for the work

         performed;

      - Arvidson would occasionally run into Gyokeres at the grocery store; and

      - The last time Arvidson saw Gyokeres was at the grocery store about two

         weeks before the trial. At that time Arvidson gave Gyokeres a hug

         because he knew she was undergoing cancer treatment.


      The court, the State and the defense inquired as to Arvidson’s ability to be

fair and impartial in deciding this case despite Arvidson’s relationship with

Gyokeres. Arvidson consistently answered that he could be fair and impartial, and

that “she’s just another person testifying to me.”

      The defense moved to dismiss Arvidson, contending that despite his claim

that he could be impartial, Arvidson was employed by Gyokeres, had social

interaction with her, and was sympathetic to Gyokeres’ medical condition.2 The

State, on the other hand, believed this situation was different from the prior juror

(Stelzer), since Arvidson did not have an ongoing social relationship with

Gyokeres, the relationship was limited to some random repair work, and Arvidson

would weigh her credibility in the same manner as any other witness. The trial

court reasoned as follows:



2 Gyokeres’ medical condition and treatment were not relevant to the trial, and no
testimony regarding same was elicited during the trial.
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      THE COURT: I agree. Mr. Stelzer indicated that he had a social
      relationship with that witness, that his wife spoke with her, that they
      were in more frequent contact on a social basis, that he did offer an
      opinion about her veracity.

             [Arvidson] had indicated no social interaction other than what
      might occur in a small community, which we are. He did work for her
      during which their exchange had to do with receiving payment,
      perhaps talking about a trip she was taking. He ventured no opinion
      about her trustworthiness or lack of trustworthiness and expressed
      absolutely no doubt about his ability to weigh her testimony. He did
      not have any specific knowledge of what her job is or was at the
      hospital, and what he did venture as what her job may have been is
      certainly nothing that she was involved with in this incident. And I’m
      going to allow him to keep his seat.

      In announcing its ruling, the court did not determine whether the defense

would likely have used a peremptory challenge to strike juror Arvidson had his

relationship with Gyokeres been disclosed during voir dire.

      Gyokeres was subsequently called to the stand. She testified that although

she did not actually remember performing the blood draw, she was the person who

drew the blood, that the blood drawn was from Villalobos, and that she followed

the correct procedures because she signed off on the paperwork. Her testimony

served to establish a chain of custody for the blood sample, and she further testified

that Villalobos had a blood alcohol content of .391 on the night of the accident.

On cross-examination, the defense sought to impeach Gyokeres, given that she had

no independent recollection of the events in question and could not identify

Villalobos as the person from whom she drew the blood.             The defense also


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questioned her at length regarding the maintenance of the testing equipment and

the handling and chain of custody of the blood test kit.3

      At the conclusion of the evidence, the defense renewed its objection to juror

Arvidson remaining on the jury and moved for a mistrial.4 The trial court denied

the motion, finding that Arvidson’s relationship with Gyokeres would not affect

the weight or credibility Arvidson gave to Gyokeres’ testimony.            The jury

convicted Villalobos as charged and the court sentenced him to 30 years in state

prison. This appeal followed.

      We review the trial court’s action (in denying the motion to dismiss the juror

and for mistrial) for an abuse of discretion. Conde v. State, 860 So. 3d 930, 939

n.6 (Fla. 2003).   However, to the extent the claim involves the application of the




3 Testimony at trial indicated that following the blood draw, Trooper Williams
turned over the blood samples to a deputy from the Monroe County Sheriff’s
Office. The deputy testified that, within thirty minutes of receiving the samples, he
delivered them to the Monroe County Sheriff’s Office evidence room, where they
were impounded and refrigerated to preserve the samples for subsequent analysis.
However, the defense argued that a property receipt introduced at trial indicated
that the blood samples were unaccounted for for nearly thirty hours between the
time Trooper Williams turned over the samples to the deputy and the time the
deputy delivered them for impounding at the sheriff’s office.
4 It appears from our review of the record that trial began with six jurors and one

alternate. After juror Stelzer was dismissed, only six jurors remained on the panel.
Had the trial court dismissed juror Arvidson, only five jurors would have
remained. Absent an on-the-record waiver and a stipulation to a trial by less than
six jurors, see Blair v. State, 698 So. 2d 1210 (Fla. 1997), dismissing juror
Arvidson would have necessitated a mistrial.
                                          6
correct law by the trial court in exercising its discretion, our standard of review is

de novo. Collett v. State, 28 So. 3d 224 (Fla. 2d DCA 2010).

      In determining whether juror Arvidson should have continued to serve as a

juror in light of his newly-disclosed information, the trial court applied the

incorrect standard. The trial court focused its inquiry, and ultimately the exercise

of its discretion, on whether there was any reasonable doubt that juror Arvidson

could be fair and impartial. Such a standard is to be utilized in determining

whether a juror should be stricken “for cause.” See Singleton v. State, 783 So. 2d

970 (Fla. 2001); Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006). The trial

court instead should have applied the standard for juror nondisclosure, as

established in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995). In De La Rosa,

the Supreme Court of Florida outlined the three-prong test to be utilized in

determining whether a juror’s nondisclosure of information during voir dire

warrants a new trial5:

      First, the complaining party must establish that the information is
      relevant and material to jury service in the case. Second, that the juror
      concealed the information during questioning. Lastly, that the failure
      to disclose the information was not attributable to the complaining
      party’s lack of diligence.


5 In the more common scenario, the juror’s nondisclosure of information is not
discovered until after the trial, resulting in a motion for new trial. Here, the
nondisclosure was discovered during the trial itself, and the issue is whether the
court erred in not dismissing the juror upon discovery of the undisclosed
information. Under either scenario, however, the analysis remains the same.
                                          7
Id. at 241.

      There is little doubt that the second and third prongs of De La Rosa were

satisfied in this case.6 We therefore turn to the first prong and analyze whether the

information was relevant and material.




6 With regard to the concealment prong, the State argues that Arvidson’s failure to
disclose was not intentional. However, there is no requirement that the failure to
disclose be accompanied by an intent to mislead; even an unintentional failure to
disclose satisfies this prong. Bernal v. Lipp, 580 So. 2d 315, 316-17 (Fla. 3d DCA
1991 (finding concealment even though the juror did not intend to mislead
counsel). See also, Estate of Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002)(noting
“a juror’s non-disclosure need not be intentional to constitute concealment”); Tripp
v. State, 874 So. 2d 732 (Fla. 4th DCA 2004). The State also contends that there
was no concealment because Arvidson disclosed the information as soon as he
became aware that he knew Gyokeres. The case relied upon by the State for this
proposition, Murray v. State, 3 So. 3d 1108 (Fla. 2009), is inapposite. In Murray
(unlike the instant case), the juror was never asked during voir dire whether he
knew any of the witnesses who would be testifying at trial. Given that the
information was never “squarely asked for,” Bernal, 580 So. 2d at 316, it could not
be said that the juror in Murray “concealed” any information when, upon realizing
he knew one of the witnesses, the juror came forward and notified the court.

We also reject the State’s argument that the defense did not act with diligence
because it did not inquire further regarding whether any of the jurors knew any of
the witnesses who might testify at trial. During voir dire, the trial court read aloud
to the venire the names of each of the witnesses and inquired whether any
prospective juror knew the witness. Neither juror Arvidson nor juror Stelzer
indicated at that time that they knew witness Gyokeres. Where a juror has been
asked a clear question and provided an unequivocal response, due diligence does
not require further inquiry. See Dery v. State, 68 So. 3d 252 (Fla. 2d DCA 2010).
Here, the jury venire was clearly asked whether any of them knew “Jody Gyokeres
from Marathon.” The absence of an affirmative response by Arvidson, indicating
that he knew Gyokeres, was in effect an unequivocal “no,” and defense counsel’s
failure to make further inquiry under these circumstances does not constitute a lack
of diligence.
                                          8
      First, “the complaining party must establish not only that the nondisclosed

matter was ‘relevant’ . . . but also that it is ‘material to jury service in the case.’”

Estate of Roberts v. Tejada, 814 So. 2d 334, 339 (quoting De La Rosa, 659 So. 2d

at 241). Materiality in this context is shown where the “omission of the

information prevented counsel from making an informed judgment-which would

in all likelihood have resulted in a peremptory challenge.” Id. (quoting De La

Rosa, 659 So. 2d at 242). A trial court errs when it focuses on whether the juror

may be biased or partial when considering or deliberating the case as opposed to

“what Appellant’s counsel would have done during voir dire had the . . . history

been disclosed.” Fine v. Shands Teaching Hosp. and Clinics, Inc., 994 So. 2d 426

(Fla. 1st DCA 2008). See also Tripp v. State, 874 So. 2d 732 (Fla. 4th DCA

2004).

      Here, Arvidson acknowledged that he had a business relationship with

Gyokeres. He performed carpentry/handyman work at Gyokeres’ home for which

Gyokeres personally wrote him checks, and he performed such work as recently as

two months before the trial. According to Arvidson, he and Gyokeres ran into each

other every three to four months.

      Further, Arvidson described a connection with Gyokeres that was, at least to

some degree, not simply a business relationship but a personal one as well:

Arvidson had seen Gyokeres at a local grocery store just two weeks before trial.


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When he saw her at the store, Arvidson was aware that Gyokeres was undergoing

cancer treatment and gave her a hug.

      We agree with Villalobos that this nondisclosure “prevented counsel from

making an informed judgment-which would in all likelihood have resulted in a

peremptory challenge.” De La Rosa, 659 So. 2d at 242. Had Arvidson disclosed

this information during voir dire, we conclude the defense in all likelihood would

have exercised a peremptory challenge on juror Arvidson.

      Courts have held similarly critical—or even less critical—information to be

“material.” See De La Rosa, 659 So. 2d at 241 (involvement in prior, completely

unrelated lawsuits was material); Dery v. State, 68 So. 3d 252 (Fla. 2d DCA 2010)

(holding that juror took an internet course in forensic science several years before

trial was material); Mitchell v. State, 458 So. 2d 819 (Fla. 1st DCA 1984) (holding

that juror’s nephew was a corrections officer at facility where incident occurred

was material); Smiley v. McCallister, 451 So. 2d 977 (Fla. 4th DCA 1984)

(holding that juror had a son-in-law who was in a car accident was material in a

case involving a car accident).

      Our determination of materiality is buttressed by the fact that Gyokeres was

a significant witness for the State. Aside from being the person who provided

evidence that Villalobos had a blood alcohol level of .391 (and thus satisfying an

essential element of the State’s case), Gyokeres drew Villalobos’ blood, testified


                                        10
that the blood was correctly drawn, that the chain of custody was uninterrupted,

and that the hospital’s equipment was functioning properly. Defense counsel

assertively questioned, and sought to impeach, Gyokeres on these issues and on

her apparent lack of ability to recall important aspects of her involvement in this

case.   Under these circumstances, had the defense been made aware during voir

dire of the information regarding the relationship between juror Arvidson and

witness Gyokeres, the defense in all likelihood would have peremptorily

challenged Arvidson.7

        Because the trial court erred in denying the motion to dismiss juror

Arvidson, and in denying the subsequent motion for mistrial, we reverse and

remand for a new trial.




7  Although the State contends that the trial court correctly determined that
Arvidson could still be fair and impartial notwithstanding his knowledge of and
relationship with Gyokeres, such a determination could not serve to satisfy the
requisite assessment of materiality under De La Rosa. The relevant question is not
whether there was a reasonable doubt about Arvidson’s ability to be fair and
impartial (an analysis that focuses largely on the trial court’s assessment of the
candor, demeanor and certainty of the juror’s answers), but whether the defense in
all likelihood would have exercised a peremptory challenge had this information
been disclosed during voir dire (an analysis that focuses largely on the trial court’s
assessment of the reasonable and probable actions counsel would have taken in the
collective light of a complete and informed jury selection process). One cannot
reasonably ignore the defense’s legitimate concerns, for example, that Arvidson
might accord greater weight or credibility to Gyokeres’ testimony than would a
typical juror; that Arvidson might be disproportionately affected by the aggressive
manner of the cross-examination of Gyokeres; and that Arvidson might share with
fellow jurors his knowledge of Gyokeres’ medical condition and treatment.
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