         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


NICHOL PHELPS,

              Appellant/Cross-Appellee,

 v.                                                       Case No. 5D14-2128

STATE OF FLORIDA,

              Appellee/Cross-Appellant.

________________________________/

Opinion filed February 26, 2016

Appeal from the Circuit Court
for Orange County,
Michael Murphy, Judge.

James S. Purdy, Public Defender, and
David S. Morgan and Nancy Ryan,
Assistant Public Defenders, Daytona
Beach, for Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellee/Cross-Appellant.


PALMER J.

       Nichol Marie Phelps (defendant) timely appeals her convictions and sentences,

challenging the trial court's denial of her motion to interview an alternate

juror. Determining that the motion raised sufficient allegations to require a juror interview,

we reverse that ruling. The State cross-appeals, challenging the defendant's downward
departure sentences. Because the State failed to preserve this issue for appeal, we affirm

the sentences without further discussion. See State v. Hamner, 816 So. 2d 810, 812 (Fla.

5th DCA 2002) (“Because the state failed to timely object to the departure sentence after

it was imposed, or to the absence of reasons for its imposition, this sentencing issue was

not preserved for appeal.”).

       At trial, the court ordered the jury not to deliberate before the close of evidence.

After the jury entered its verdict, the defendant filed a motion seeking to interview an

alternate juror.1 She referenced an affidavit from her mother, Ms. Horn, which asserted,

in part:

             I had a conversation with the male alternate juror after he was
             excused from the jury. During that conversation, this juror
             indicated that the jurors had discussed the case during the
             trial even though they had been instructed not to by the Judge.
             He also stated that several jurors indicated that they wanted
             to hear [the defendant] testify and further that some of these
             jurors made statements to the affect [sic] that they could not
             understand why the defendant would not testify if she was not
             guilty.

The trial court granted a hearing on the motion. During the hearing, Ms. Horn testified

that an alternate juror had approached her and stated:

             I'm not going to tell you that we didn't talk during lunches and
             breaks; you know we did.


       1
         See Fla. R. Crim. P. 3.575 (“A party who has reason to believe that the verdict
may be subject to legal challenge may move the court for an order permitting an interview
of a juror or jurors to so determine. The motion shall be filed within 10 days after the
rendition of the verdict, unless good cause is shown for the failure to make the motion
within that time. The motion shall state the name of any juror to be interviewed and the
reasons that the party has to believe that the verdict may be subject to challenge. After
notice and hearing, the trial judge, upon a finding that the verdict may be subject to
challenge, shall enter an order permitting the interview, and setting therein a time and a
place for the interview of the juror or jurors, which shall be conducted in the presence of
the court and the parties. If no reason is found to believe that the verdict may be subject
to challenge, the court shall enter its order denying permission to interview.”).


                                            2
Further, Ms. Horn stated that the alternate juror told her that

              [the defendant is] going to have a hard time convincing a
              couple of the jurors that she's not guilty. They stated that – he
              – he [sic] stated that they said they wanted to hear her
              testimony, and why wouldn't a person who's not guilty testify
              for themselves.

Denying the motion, the trial court ruled:

              [N]either the allegation in the affidavit nor the statement made
              in the hearing indicate that jurors had discussed the case and
              formed an opinion as to guilt before the close of evidence. Had
              the statement been, for example, that two of the jurors
              indicated they were going to find the Defendant guilty if she
              did not testify, then that statement would have been sufficient
              to require a juror interview of at least the alternate.

The defendant challenges this ruling, arguing that the trial court abused its discretion in

denying her motion. We agree.

       “A trial court's decision on a motion to interview jurors is reviewed under an abuse

of discretion standard.” Gray v. State, 72 So. 3d 336, 337 (Fla. 4th DCA 2011) (internal

quotation marks omitted). “ '[A] claim of premature deliberations may be asserted

following an adverse jury verdict' . . . because '[t]he timing of deliberations does not inhere

in the verdict.' Accordingly, the issue of whether deliberations were undertaken

prematurely is an appropriate subject of judicial inquiry.' ” Id. at 337 (quoting Williams v.

State, 793 So. 2d 1104, 1106 (Fla. 1st DCA 2001)).

       In Gray, the Fourth District held that the trial court abused its discretion in denying

the defendant’s motion to interview jurors where the following had occurred:

              According to the allegations of the [defendant’s] motion, after
              the jury retired to deliberate, the alternate juror spoke to
              defense counsel as he was walking to the elevator. The
              alternate juror, who had been released, explained that several
              jurors felt “extremely” strongly that the defendant was guilty.



                                              3
                 One juror said [to] the alternate juror, “[W]hat was the
                 defendant doing walking with a gun at one o'clock in the
                 morning?” The alternate juror mentioned that other jurors felt
                 there was no physical evidence to convict and that several
                 jurors had strong personalities.
                 ....
                 The defendant's allegations suggested that multiple jurors
                 were improperly discussing the case during trial and were
                 expressing opinions as to the defendant's guilt before the
                 close of the evidence. This was not merely an allegation of a
                 lone juror attempting to discuss the case prematurely, as
                 occurred in Reaves [v. State, 826 So. 2d 932, 943 (Fla.
                 2002)]. Rather, the facts alleged in the defendant's motion, if
                 true, would constitute an agreement among multiple jurors to
                 disregard their oaths and deliberate prematurely.

Id. at 337-38.

       Similarly, in Ramirez v. State, the First District held that the trial court abused its

discretion in denying a motion to interview jurors where the alternate juror told a bailiff

“words to the effect that the jury was split as to the defendant's guilt until after they heard

his testimony.” 922 So. 2d 386, 387-88 (Fla. 1st DCA 2006).

       Additionally, in Williams v. State, 793 So. 2d 1104 (Fla. 1st DCA 2001), the First

District held that the defendant had set forth a prima facie case entitling him to interview

the jurors based upon the following facts:

                 [On] day 2 of the trial of Eduardo Williams there were two
                 jurors freely talking about the case. They had already found
                 him guilty of the offense. They said it was a waste of time and
                 money. And it was an act. They did not follow the judge's
                 directions.
                 ....

                 [Two women jurors] discussed the case after being sworn by
                 the judge. When Mr. Williams was first seen by the jury he
                 was unshaven and rough looking. After he was shaven, the
                 two women [jurors] said he, Mr. Williams, is just trying to look
                 innocent.
                 ....



                                                4
              The two women did not want to be on the jury and stated that
              the trial was a waste of time and money. This was said before
              the state ever finished putting on their case. The atmosphere
              of the jury was that Mr. Williams was guilty before the defense
              ever put on their case.

Id. at 1105-06.

       Here, the alternate juror allegedly stated to Ms. Horn that he was "not going to tell

[her] that we didn't talk during lunches and breaks; you know we did", and "that [the

defendant was] going to have a hard time convincing a couple of the jurors that she's not

guilty.” These facts demonstrate that, as in Gray, Ramirez, and Williams, at least two

jurors allegedly talked about the defendant's case before the case was submitted to the

jury, in violation of the trial court’s instruction, and at least two jurors were allegedly

disposed to find the defendant guilty, even before the jury deliberated. Accordingly, the

trial court abused its discretion in denying the defendant’s motion to interview the

alternate juror; therefore, we reverse that ruling and remand for reconsideration of the

defendant's motion.

       AFFIRMED in part; REVERSED in part; and REMANDED.

LAWSON, C.J. and BERGER, JJ., concur.




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