        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                              LENIST KEY,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-1928

                          [November 25, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 11-2654CF10A.

  Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   Appellant alleges that the trial court erred in denying his motion for
mistrial due to jury misconduct. Appellant also states that reversal is
mandated because a testifying police officer gave an improper opinion. We
find that the alleged jury misconduct does not require reversal. We affirm
on this issue and write further to elaborate. We also find that the alleged
improper opinion does not require reversal and we affirm without further
comment.

   Appellant was charged and convicted of armed sexual battery and
armed kidnapping. The victim testified to an incident that occurred in
1995, while she was waiting for a bus on her way to work. The assailant
took her at gunpoint to his vehicle and drove her to a wooded area where
he struck her with his gun and raped her. The victim then hit the assailant
with the car door and fled without her clothes. The victim testified to not
knowing the assailant.

   During the trial, there was evidence that a DNA test on the sperm
recovered from the victim matched appellant’s DNA. During closing
argument, the defense argued that the sex between appellant and victim
was consensual and further argued that the victim was not credible.

   Before deliberations, the court instructed the jury:

         During deliberations, jurors must communicate about the
      case only with one another and only when all jurors are
      present in the jury room. You are not to communicate with
      any person outside the jury about this case.

          Until you have reached a verdict you must not talk about
      this case in person or through the telephone, writing, or
      electronic communication such as a blog, Twitter, email, text
      messaging, or any other means at all. Do not contact anyone
      to assist you during your deliberations. These communication
      rules apply until I discharge you at the end of the case.

   After the jury began its deliberations and before the jury left for the day,
the court instructed the jury as follows:

          In order to have a fair and lawful trial, there are rules that
      all jurors must follow. A basic rule is that jurors must decide
      the case only on the evidence presented in the courtroom. You
      must not communicate with anyone, including friends and
      family members, about the case, the people and places
      involved, or your jury service.

         You must not disclose your thoughts about this case or ask
      advice on how to decide this case. I want to stress that this
      rule means that you must not use electronic devices or
      computers to communicate about this case including
      Tweeting, texting, blogging, emailing, posting information on
      a website or chat room or any other means at all.

          Do not send or accept any messages to or from anyone
      about this case or your jury service. You must not do any
      research, look up any words, names, maps, or anything else
      that may have anything to do with this case. This includes
      reading the newspapers, watching TV, using a computer, a
      cell phone, the Internet, any electronic device or any other
      means at all to get information related to this case or the
      people or places involved in this case. This applies whether
      you’re at the courthouse, at home, or anywhere else. All of us
      are depending upon you to follow these rules so there will be

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      a fair and lawful resolution to this case. That would be
      contrary to our judicial system, which assures every party the
      right to ask questions about and rebut the evidence being
      considered against it. Non-court inquiries and investigations
      unfairly and improperly prevent the parties from having that
      opportunity our judicial system promises. If you become
      aware of any violations of these instructions or any other
      instruction I give in this case, you must tell me by giving a
      note to the deputy. So, folks, here’s the bottom line: There is
      nothing for you to talk about with anybody tonight. Go home,
      watch the Heat game, have dinner, but don’t talk about the
      case. Okay? You can’t use your computers to look at anything.
      You can’t research anything. Your verdict can only be based
      on the law and the evidence that’s been presented. Okay? So,
      having said that, I’m going to release you for tonight.

    When the court reconvened the next day and before the jury resumed
its deliberations, the state informed the trial court that an employee of the
State Attorney’s Office heard a conversation the previous day between two
jurors, one female and one male. The employee heard one juror say
something to the effect that “[w]ell, we know there was sex occurred [sic],
because there was DNA – because of the DNA.” Then the employee heard
a juror say something to the effect of “[w]ell, it’s been so long so he’ll
probably – the judge will probably just give him probation.” The employee
could not say which juror said each statement or whether the same juror
made both statements.

   The trial court brought in the jurors individually for questioning,
including the only female juror on the panel. All the jurors said they had
no conversations about the case after deliberations had ended the previous
day, except for one male juror and the female juror. The male juror said
he talked with the female juror about what time they were going to return
the next day. He denied having any conversation about the case itself.
The female juror eventually admitted to having a conversation with the
male juror because she “thought it was okay to talk to the juror, one of our
jurors.” According to the female juror, she and the other juror agreed that
sex occurred, but they were not sure whether it was consensual or not.
She could not remember who brought up the subject, but she was sure no
one else was around. She denied discussing probation as a potential
sentence, mentioning that the incident took place in 1995, or mentioning
DNA.

   Appellant moved for a mistrial based on the employee’s testimony that
two jurors had a conversation after the trial court had instructed the jurors

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not to discuss the case outside the presence of other jurors. The trial court
denied the motion for mistrial and stated the following:

         Based on the testimony of the two jurors that in fact were
      seen by the elevator having a conversation about the case, the
      Court is going to make the following findings that there is
      nothing in the record to suggest that there has been an
      exchange of ideas that there had been any deliberations
      outside of the jury room.

         The Defense through the whole trial has, including their
      closing argument, has relied on the issue that this was a
      consensual act. It did not appear from the testimony of the
      two jurors that they had any discussion other than there was
      any discussion at all [sic].

         The Court finds that it does not rise to the level of
      prejudice, the motion for mistrial would be denied.

   The jury found appellant guilty, and this appeal follows.

   “A trial court’s ruling on a motion for mistrial is subject to an abuse of
discretion standard of review.” England v. State, 940 So. 2d 389, 402 (Fla.
2006). “A motion for a mistrial should only be granted when an error is so
prejudicial as to vitiate the entire trial.” Id. at 401-02.

   Although “it is axiomatic that jurors should not discuss a case among
themselves prior to deliberations,” this case involved an allegation that a
juror or two jurors discussed a case after deliberations had begun.
Johnson v. State, 696 So. 2d 317, 323 (Fla. 1997). In another case
involving premature deliberations, the Florida Supreme Court determined
that an allegation that one juror attempted to prematurely discuss the case
did not warrant jury interviews because there was no evidence of any
“agreement among the other jurors to disregard their oaths and ignore the
law, nor does it imply that the jury was influenced by external sources or
improper material.” Reaves v. State, 826 So. 2d 932, 943 (Fla. 2002).
However, where there is an allegation that multiple jurors prematurely
discussed the pending case together and their opinions as to a potential
verdict, there would be sufficient evidence to require questioning of the
entire jury panel. Sheppard v. State, 151 So. 3d 1154, 1172 (Fla. 2014).

   In the present case, the employee’s allegations appear to have been
insufficient to require jury interviews in the first place because there was
no direct allegation that more than one juror discussed the case. Id. The

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employee could not say if more than one juror was talking. Thus, if only
one juror discussed the case, then there could not be an “agreement
among the other jurors to disregard their oaths and ignore the law.”

   But even if the jury conduct warranted juror interviews, the actions of
the jurors in this case do not warrant a mistrial because no prejudice was
established. As Judge Learned Hand commented many years ago
regarding the nature of jurors and juries, “Juries are not leaves swayed by
every breath.” United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).
Thus, we must not assume mere discussion by a juror or jurors necessarily
means prejudice to appellant.

    Although the Johnson case involved discussions prior to deliberations,
it is nevertheless instructive to this case’s analysis. In Johnson, one juror
was confused about nicknames referenced during the trial and the other
jurors clarified the confusion. 696 So. 2d at 321, 323. In addition, one
juror in Johnson spoke with another juror about the “traumatic” nature of
the wounds suffered by the victim. Id. at 324.

   The Florida Supreme Court in Johnson noted that the juror comments
were simply a reaction to testimony and significantly no extrinsic
information was imparted to the jury. The court found that no prejudice
occurred because the limited conversation did not indicate that either
juror had formed a premature opinion of the case. Similarly, in the present
case, the statements overheard by the state employee were also simply a
reaction to the trial testimony, and there was no indication that any
extrinsic information was imparted. The allegations were that a juror or
two jurors agreed that appellant and the victim had sex. Significantly,
appellant conceded that he and the victim had sex, so it was not an issue
contested at trial.

    Further, what is clear is that no extrinsic information or evidence was
discussed by the jurors in this case. See Russ v. State, 95 So. 2d 594, 601
(Fla. 1957) (en banc) (stating that in considering whether extrinsic
evidence warrants a mistrial, “[i]t is necessary either to show that prejudice
resulted or that the statements were of such character as to raise a
presumption of prejudice”); Tapanes v. State, 43 So. 3d 159 (Fla. 4th DCA
2010) (finding reversible misconduct where a juror looked up a word
related to the case); Pozo v. State, 963 So. 2d 831, 834 (Fla. 4th DCA 2007)
(finding investigation warranted as to external influences on the jury where
the jurors allegedly discussed fear of harassment by the sheriff’s office if
they did not convict, and sheriff’s office members were present in the
gallery during trial); Del’Ostia v. Strasser, 798 So. 2d 785 (Fla. 4th DCA
2001) (finding misconduct where a juror and a witness engaged in

                                      5
conversation); State v. Devoney, 675 So. 2d 155, 160 (Fla. 5th DCA 1996)
(“Consideration of extrinsic evidence is jury misconduct and is sufficient
to violate the constitutional right to trial by an impartial jury.”); Brooks v.
Herndon Ambulance Serv., 510 So. 2d 1220, 1221 (Fla. 5th DCA 1987)
(During a jury interview, a court must determine whether “the juror was
imparting information from outside the trial and evidence, [in which case]
a new trial may be warranted.”).

   In State v. Brown, 62 A.3d 1099 (R.I. 2013), the Rhode Island Supreme
Court confronted a similar issue, albeit after the jury had returned its
verdict. In Brown, affidavits alleged that two jurors discussed the case
separately from the other jurors after deliberations had begun but before
a verdict had been rendered. The Rhode Island Supreme Court determined
that since the affidavits did not indicate that the jurors had considered
extrinsic evidence, then any further inquiry by the trial court would have
invaded the jury deliberation process.1

   In the present case, there was no evidence or allegations that the jurors
considered any extrinsic information or evidence. We share the reluctance
and concern of the court in Brown about invading the province of the jury
deliberation process. The inviolate nature of jury deliberations, absent
jury misconduct such as extrinsic influence or evidence, must be
protected. Thomas Jefferson recognized the centrality of an independent
jury system, free from most types of intrusions, when he wrote that “I
consider that [trial by jury] as the only anchor, ever yet imagined by man,
by which a government can be held to the principles of it’s [sic]
constitution.” Letter from Thomas Jefferson to Thomas Paine (July 11,
1789), in 15 The Papers of Thomas Jefferson 266, 269 (Julian P. Boyd ed.,
1958).

    Other courts have similarly dealt with this issue regarding limitations
on jury interviews absent extrinsic influences. See United States v.
Lespier, 87 Fed. R. Evid. Serv. 1383 (W.D.N.C. 2012) (“An allegation of
deliberation by part of the jury outside the jury room constitutes a claim
of internal juror misconduct” and “is not the sort of conduct that this Court
can or should directly inquire into by interrogating jurors . . . .”) (quoting
United States v. Siegelman, 640 F.3d 1159, 1187 (11th Cir. 2011)); United
States v. Fails, 51 Fed. App’x. 211, 216 (9th Cir. 2002) (affirming denial of
mistrial where three jurors discussed the case during a break from
deliberations because “no nonjuror participated in the discussion, there
was no indication that the jurors were otherwise improperly discussing

1Similarly, section 90.607(2)(b), Florida Statutes, does not permit inquiry into
any matter which inheres in the verdict.

                                       6
extraneous evidence, and the discussion took place during a short break
from ongoing deliberations”); United States v. Prosperi, 201 F.3d 1335,
1340 (11th Cir. 2000) (finding trial court properly declined to investigate
allegations of internal influence occurring during deliberations where two
jurors were observed in a “heated discussion” away from the other jurors);
United States v. Yoakam, 168 F.R.D. 41 (D. Kan. 1996) (refusing to inquire
into a conversation between two jurors concerning their deliberations in
the case).

   In summary, we find the trial court did not err in denying appellant’s
motion for mistrial inasmuch as there was no evidence of extrinsic
information discussed by the jury and as such no prejudice to appellant.
Thus, we affirm.

   Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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