        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                            DALIA DIPPOLITO,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D11-2628

                              [July 30, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Colbath, Judge; L.T. Case No. 2009CF009771AXX.

   Andrew B. Greenlee, Robert L. Sirianni, Jr. and Michael M. Brownlee of
Brownstone, P.A., Winter Park, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and John M.
Klawikofsky, Assistant Attorney General, Tampa, for appellee.

WARNER, J.

   Dalia Dippolito appeals her conviction for solicitation to commit first
degree murder with a firearm. She argues the trial court erred by denying
her request to individually question prospective jurors about their
exposure to pretrial publicity about her case, and by denying her request
to strike the entire jury venire after all the jurors heard an allegation that
appellant had attempted to poison the victim in this case. We agree and
reverse. We affirm as to the remaining issues without further comment,
as they were either not error or not properly preserved.

                                Background

   In the late summer of 2009, appellant’s lover approached the Boynton
Beach Police Department and reported that appellant was planning to kill
her husband. An investigation ensued, during which police videotaped
incriminating meetings between appellant and her lover, as well as
between appellant and a purported hit man, who was in reality an
undercover officer. The hit man agreed to shoot and kill appellant’s
husband in their home and make the killing look like part of a burglary.

   Subsequently, police staged a fake crime scene at appellant’s home and
informed her that her husband had been killed in the manner described
by the hit man. Appellant’s reaction was videotaped by the police and by
the television show “Cops,” which was then filming the Boynton Beach
Police Department. Appellant was subsequently taken to the police station
and interviewed. The police eventually told appellant that her husband
was alive and revealed the hit man was an undercover officer. Appellant
maintained her innocence.

    She was charged with solicitation to commit first degree murder with a
firearm. The case generated considerable pretrial publicity. She pled not
guilty, and a ten-day jury trial was held in late April and early May of 2011.

   Prior to trial, on March 30, 2011, appellant moved to individually
question prospective jurors about their exposure to pretrial publicity.
Appellant alleged the case had “received a great deal of national attention
and publicity and has been reported on a variety of national media
shows[.]” She alleged that, due to unspecified public comments by her
husband’s divorce attorneys, she had sought a gag order in the parties’
divorce proceedings in late August 2010. She also reported that the
Boynton Beach Police Department had uploaded to YouTube the videos of
appellant taken during the investigation. She tallied the number of views
the videos had received to date and alleged they had been “played
nationally, locally on the internet and on nationally produced television
shows[.]” These included the Today Show, Good Morning America, CNN,
and CBS News. The trial court denied the motion but noted appellant
could re-raise the issue at jury selection.

   Appellant renewed her motion on the first day of jury selection. Her
counsel asserted several new newspaper articles had appeared in the prior
forty-eight hours, which had “liken[ed] this case or compare[d] it to Scott
Peterson or Martha Stewart or Michael Jackson,” and had “impl[ied] that
this is some sort of slam dunk by the State[.]” The court again denied the
motion, but noted questioning might “evolve into individual voir dire”
depending on “[the] venire’s knowledge of the case[.]”

   The court read prospective jurors a brief description of the charges,
which had been agreed upon by the parties, and asked jurors for a show
of hands as to who had heard of the case. Many indicated they had: the
court commented there were “a lot of hands,” and appellant’s later motion
for new trial alleged that twenty-eight of the fifty-four prospective jurors

                                      2
raised their hands. The court asked whether any juror had “some strong
feelings that would be difficult to overcome and give either the State a fair
trial or the Defense a fair trial.” No hands were raised.

   When it was appellant’s turn to question the jurors, she again
requested individual voir dire, concerned that asking individual jurors
about the media reports could lead to contamination of the entire jury
pool. The court commented that none of the jurors “held any strongly held
opinions on the merits of the case” and opined, “I don’t think it’s necessary
for you to say, hey, tell me everything you heard about this case. . . .
[T]hat’s going to lead to more problems than it’s going to solve.” Appellant
argued she had the right to ask jurors what, specifically, they had heard
about the case, and the court eventually agreed she could do so. However,
the court ruled it would “[n]ot yet” allow individual questioning.

   As appellant proceeded to question the jurors about their knowledge of
the case, the jurors freely recounted what they had heard and seen on the
news. One juror mentioned “an allegation that [appellant] had tried to
poison her husband with antifreeze. That was in the Palm Beach Post.”
The trial court had already ruled that allegation inadmissible at trial.1
Therefore, appellant moved to strike the jury panel and for a mistrial. The
court denied both requests.

   The case proceeded to trial, after which the appellant was convicted of
attempted first degree murder with a firearm. The court sentenced her to
twenty years in prison. She then filed this appeal.

    Refusal To Conduct Individual Voir Dire and To Strike Jury Panel

   Appellant claims that the court erred in refusing individual voir dire
and in failing to strike the jury panel after it had heard inadmissible bad
acts evidence from one of the jurors. This is dispositive of the appeal. We
conclude that the court erred in refusing to allow individual voir dire
questioning and in failing to strike the jury pool.

    The denial of a motion to strike the jury panel is reviewed for an abuse
of discretion. Williams v. Osking, 105 So. 3d 653, 655 (Fla. 4th DCA 2013).
Likewise, “a trial court has broad discretion in deciding whether


1 Contrary to the state’s assertion on appeal, the state had not merely agreed to
refrain from introducing this evidence; the trial court had ruled it inadmissible
in a pretrial order dated April 20, 2011.


                                       3
prospective jurors must be questioned individually about publicity the
case has received.” Bolin v. State, 736 So. 2d 1160, 1164 (Fla. 1999).

   Three Florida Supreme Court cases control the disposition of this case:
Boggs v. State, 667 So. 2d 765 (Fla. 1996), Bolin v. State, 736 So. 2d 1160
(Fla. 1999), and Kessler v. State, 752 So. 2d 545 (Fla. 1999). In Boggs and
Bolin, the defendants’ initial convictions and death sentences were
reversed and, just before jury selection in the retrial, local newspapers
published inadmissible and prejudicial information about the first trial.
Boggs, 667 So. 2d at 766; Bolin, 736 So. 2d at 1161-63. Similarly, in
Kessler, on the day of jury selection a newspaper article published
inadmissible and prejudicial information about the defendant’s federal
conviction for the same crime and stated he was being investigated for
unsolved murders. 752 So. 2d at 551.

      In Boggs, the court held,

      [B]ecause of the timing and content of the newspaper articles
      and the statements made by these prospective jurors that they
      had read newspaper articles and had formed opinions about
      the case, individual voir dire examination of these prospective
      jurors was compelled. Through individual voir dire, the trial
      court could have determined the extent of the prospective
      jurors’ knowledge of the newspaper articles and evaluated
      whether their preformed opinions could be set aside. This
      procedure would have also protected the remainder of the
      venire from any potential contamination resulting from this
      questioning. . . . [W]e find that the trial court abused its
      discretion by not allowing further individual inquiry of the two
      prospective jurors who could not unequivocally state that they
      could not set aside their preformed opinion as to Boggs’ guilt
      and base a verdict solely on the evidence presented . . . .

667 So. 2d at 768. Bolin appears to expand on Boggs, holding that even
where the jurors had not formed opinions based upon media reports,
individual voir dire was still required:

      Even though these jurors, unlike the challenged prospective
      jurors in Boggs, stated during voir dire that they had formed
      no opinions as to Bolin’s guilt, there was no individual voir
      dire with specific questions concerning the jurors’ knowledge
      of newspaper articles containing inadmissible and prejudicial
      information. Thus, defense counsel, the trial judge, and this


                                     4
      Court are left to speculate about what these jurors had
      learned from these newspaper accounts.

      In Reilly v. State, 557 So. 2d 1365 (Fla.1990), we found the
      same type of publicity concerning inadmissible information to
      be so prejudicial that even a prospective juror without a
      preformed opinion should not be allowed to serve on a jury
      after exposure to the publicity. Id. at 1367.

Bolin, 736 So. 2d at 1164-65.

    Relying on a federal case which held that “simply asking members of
the jury venire to indicate by a show of hands whether the publicity would
impair their ability to render an impartial decision did not adequately
protect the defendant’s constitutional rights,” Bolin held, “the preferred
approach for Florida trial courts is to conduct individual and sequestered
voir dire of prospective jurors whenever, as in Boggs, ‘the timing and
content’ of pretrial publicity creates the probability that prospective jurors
have been exposed to prejudicial information that will not be admissible at
trial.” Id. at 1165 (relying on Cummings v. Dugger, 862 F.2d 1504, 1507-
08 (11th Cir. 1989)). However, the court noted that exposure to prejudicial
information “might not require disqualification of prospective jurors if this
information were going to be introduced into evidence.” Id. at 1165.

   In Kessler, one venire member admitted having read the prejudicial
article about the defendant in its entirety, and sat on the jury after
Kessler’s for-cause challenge was denied. 752 So. 2d at 550. Even though
this juror had stated during questioning that he had not formed an opinion
and could be fair, the supreme court found that the denial of individual
voir dire

     prevented defense counsel from developing an accurate picture
     of the impact of the article on juror Mengel, for had counsel
     attempted to do so the information would have been broadcast
     to the entire venire. Defense counsel, for instance, was unable
     to gauge the following: Whether Mengel had focused closely on
     the article when he read it; whether he had understood and
     absorbed the details of the article; whether he had found the
     article credible; and whether he had experienced a gut-level
     reaction to the article.

     The State contends that it is enough that Mengel averred that
     he possessed an open mind and could render a fair verdict
     based solely on the evidence presented at trial. We disagree.

                                      5
Id. at 551. Although Boggs had noted that exposure to pretrial publicity
was not enough, in and of itself, to raise a presumption of unfairness,
citing Bundy v. State, 471 So. 2d 9 (Fla. 1985), Kessler distinguished
Bundy as addressing “a motion for change of venue–not a dismissal [of a
juror] for cause” and found “[t]he practical and policy considerations
underlying these two issues are vastly different.” Kessler, 752 So. 2d at
552.

    In sum, Bolin and Kessler hold that, where inadmissible and prejudicial
information about the case has recently been published in the media, the
trial court abuses its discretion if it does not permit individual voir dire of
jurors exposed to such publicity. Bolin, 736 So. 2d at 1165; Kessler, 752
So. 2d at 552. They hold there is an abuse of discretion even if the venire
members exposed to the publicity testify, per a show of hands, that they
have not formed an opinion and can be impartial. Bolin, 736 So. 2d at
1164-65; Kessler, 752 So. 2d at 550-52. Thus, the state’s argument in
this case that there was no abuse of discretion because no juror who had
formed an opinion sat on the jury is without merit.

   Under the Boggs/Bolin/Kessler standard, while the trial court may not
have abused its discretion in denying the pretrial request for individual
voir dire, it did abuse its discretion in denying the appellant’s later,
renewed request for individual voir dire to determine each juror’s
knowledge of the media reports. Further, the court abused its discretion
in denying the motion to strike the panel when a juror revealed
inadmissible prior bad acts of appellant.

    The pretrial motion requesting individual voir dire cited to media
reports which appeared to have aired more than six months before the
motion was filed. Although appellant later complained of more recent
stories, she failed to specifically identify, in either her written pretrial
motion or her renewed motion prior to questioning the jurors, any
prejudicial, inadmissible information that had been reported in the media.
See Kessler, 752 So. 2d at 551 (individual voir dire should have been
allowed where article appearing on second day of voir dire stated the
defendant was serving a federal sentence for the same crime); Bolin, 736
So. 2d at 1162-63 (individual voir dire should have been allowed in retrial
where multiple articles published within a few days of jury selection
recounted inadmissible information from the defendant’s first trial for the
offense). Because the media reports were not recent and did not, as
described by appellant, convey inadmissible evidence, individual voir dire
was not mandated from the start.


                                      6
    Moreover, much of the evidence contained in the media reports would
later be admitted as evidence at trial. The YouTube videos of appellant
were admissible and, indeed, were later played at trial. Thus, exposure to
these videos would not necessarily have required disqualification of
prospective jurors. See id. (exposure to prejudicial information “might not
require disqualification of prospective jurors if this information were going
to be introduced into evidence”). When individually questioned, jurors who
indicated they could not be fair because they had seen the videos were
stricken and did not sit on the jury. Appellant failed to identify any other
prejudicial information to which prospective jurors could have been
exposed. She mainly objected to the tone of the media coverage, which
she believed implied her guilt. On this record, we cannot say the trial
court abused its discretion by denying the motion for individual,
sequestered voir dire prior to jury selection.

   However, this trial shows why individual voir dire should have been
conducted once it became apparent that a multitude of prospective jurors
had been exposed to pretrial publicity. Appellant had the right to ask these
jurors what specific information they had learned from the media; the
jurors’ show of hands was insufficient to protect her right to a fair and
impartial jury. See Bolin, 736 So. 2d at 1164-65; Kessler, 752 So. 2d at
551-52. The trial court’s refusal to allow appellant to do so on an
individual basis posed the danger that one juror’s response could taint the
entire panel. This is, in fact, what occurred when one juror mentioned the
poisoning allegation. We thus find that the trial court abused its discretion
when appellant renewed her request to individually voir dire the jurors on
the media coverage during her counsel’s opportunity to question the
jurors. See Bolin, 736 So. 2d at 551; Kessler, 752 So. 2d at 1164-65.

   The trial court then erred by failing to strike the jury panel after all the
jurors had heard the poisoning allegation. Because it involved an attempt
to kill the same victim, it was closely related to the pending charges and
could have prejudiced jurors in rendering their verdict. Even though
appellant had not been formally charged with a crime based on the alleged
poisoning, we find the comment analogous to comments informing
prospective jurors of a defendant’s criminal history, other pending
charges, or arrests. See Evans v. State, 36 So. 3d 185, 186 (Fla. 4th DCA
2010); Holt v. State, 987 So. 2d 237, 239 (Fla. 1st DCA 2008); Wilding v.
State, 427 So. 2d 1069, 1069 (Fla. 2d DCA 1983).

    The state argues any error was harmless “[i]n light of the video evidence
of Appellant soliciting the undercover officer to kill her husband[.]” Yet the
harmless error test “does not re-weigh the sufficiency of the evidence but
focuses on how the error affects the trier of fact.” Holt, 987 So. 2d at 240.

                                      7
Here, we cannot conclude that this error was harmless beyond a
reasonable doubt “because of the possibility that jurors were unfairly
prejudiced by their knowledge” of this closely related allegation. Id.
(finding error was not harmless because “[j]urors could have assumed that
because Appellant was charged with another robbery, he was the
perpetrator of the robbery being tried as well”); see also Jackson v. State,
729 So. 2d 947, 951 (Fla. 1st DCA 1998) (finding error was not harmless
“because of the possibility that the jury panel was unfairly prejudiced by
virtue of their knowledge of his arrest for other crimes”). We note that, if
this type of evidence had been improperly introduced at trial, it would have
been presumed harmful. See Kopsho v. State, 84 So. 3d 204, 212 (Fla.),
cert denied, 133 S. Ct. 190 (2012). Accordingly, appellant was deprived of
an impartial jury, and we reverse appellant’s conviction and remand for a
new trial.

   Reversed and remanded for a new trial.

DAMOORGIAN, C.J., and MAY, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     8
