Cooper v. State

385 So.3d 683

Malcolm T. COOPER, Appellant,

v.STATE of Florida, Appellee.

No. 1D2022-2143

District Court of Appeal of Florida, First District.

May 15, 2024

On appeal from the Circuit Court for Leon County. J. Lee Marsh, Judge.

Luke Newman, Tallahassee, for Appellant.

Ashley Moody, Attorney General, David Welch, Assistant Attorney General, Tallahassee, for Appellee.

Tanenbaum, J.

Malcolm Cooper appeals his convictions and concurrent sentences (which include a life sentence). His appeal centers on several interactions by the trial judge with the jury. Cooper first contends that the trial judge created a coercive atmosphere regarding both deliberations and the ultimate verdict form.¹ He also argues that the judge erroneously recalled the "discharged" jury to re-poll the jurors about their verdict after the judge realized that he had misread the verdict form to them. We will affirm.

[1, 2] The first of Cooper’s contentions we address is that the trial court fundamentally erred by giving an unrequested standard Allen² charge on the second day of jury deliberations, even though the jury had not announced it was deadlocked. The previous day, the jury had been allowed to adjourn after starting its deliberations and continuing for about three hours. On the second day, the jury sent a note indicating that it had reached a decision as to two counts—burglary and criminal mischief³—but apparently not two others—arson and kidnapping. The jury asked if it could leave and resume deliberations the following (third) day. The trial judge told counsel that he was inclined to keep the jury there and give them the charge. After all, it was not even 4:00 p.m,, yet. The prosecutor stated that the State was "fine with that," but defense counsel said, "Defense wouldn’t be asking for it."⁴ The judge read the standard instruction for a deadlocked jury. No objection or request for a cure was lodged following this. The jury returned later that afternoon with a verdict that was consistent with its previous note: deadlocked on the arson and kidnapping counts, verdicts for the others, and an answer regarding the commission of a battery during the burglary.

This court previously has suggested that without an objection to an Allen charge being given to a jury that is not dead-locked, there can be no reversible error. See Armstrong v. State, 364 So. 2d 1238, 1238 (Fla. 1st DCA 1977) ("While we consider that the giving of the instruction in the absence of a deadlocked jury was error, such was not fundamental error, and the failure to object waived any objection appellant might have had to the instruction."); Gahley v. State, 567 So. 2d 456, 460 (Fla. 1st DCA 1990) (relying on Armstrong to conclude that there was no reversible error in giving the Allen charge absent an "assertion of deadlock" because no objection had been made).

[3, 4] That said, it is conceivable that there could be fundamental error if there is evidence of coercion under the "totality of the circumstances" of the case. Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999) ("It has long been the law that a trial court should not couch an instruction to a jury or otherwise act in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position." (citing Jones v. State, 92 So.2d 261 (Fla. 1956))). Factors to consider are the following: "(1) coercive deadlines, (2) threats of marathon deliberations, (3) pressure for the surrender of conscientiously held minority views, and (4) any implication of a false duty to decide." Gahley, 567 So. 2d at 459; cf. Thomas, 748 So. 2d at 976-77 (considering the following factors indicating coercion: "(1) the trial judge’s repeated failure and refusal to give the balanced Allen charge from the Standard Jury Instructions; (2) the judge’s repeated informal instructions urging the jury to render a decision; (3) the prevailing conditions surrounding the deliberations evidenced predominantly by the jury’s deliberations into the early morning hours of the following day; and (4) the jury’s announcement in open court of their split vote indicating a lone holdout").

We can find none of these factors present in the record here. Indeed, "the fact that no objection was raised to the supplemental instruction indicates that the potential for coercion did not appear so to one on the scene." Gahley, 567 So. 2d at 460. Moreover, "[s]ince the jury had not completed its work at the usual adjournment time, it was not inappropriate to return the jurors to the courtroom to provide guidance." Id. Finally, the final verdict, which showed a deadlock on the same two counts that the jury had mentioned in its note suggests that the Allen charge in the end had no discernable effect. Cooper’s first argument for reversal fails.

[5, 6] Now for the appellant’s second contention: The trial judge erred by—over defense counsel’s objection—bringing back the jurors, after they had been discharged, to re-poll them once the judge realized that he had made a mistake in his reading of the verdict form to the jurors in connection with the first poll. While a discharged jury cannot be recalled, a trial court does not err by doing so after it simply uses the term "discharged." The supreme court has explained this as follows:

On the other hand, it may remain undischarged and retain its functions, though discharge may have been spoken by the court, if, after such announcement, it remains an undispersed unit, within control of the court, with no opportunity to mingle with or discuss the case with others, and particularly where, as here, the very case upon which it has been impaneled is still under discussion bythe court, without the intervention of any other business.

Lee v. State, 294 So. 2d 305, 308 (Fla. 1974) (emphasis supplied); see also U.S. Fid. & Guar. Co. v. Gulf Fla. Dev. Corp., 365 So. 2d 748, 749 (Fla. 1st DCA 1978) ("After a jury has returned its verdict, has been discharged and separated, it cannot be recalled to alter or amend the verdict." (emphasis supplied)).

Along these lines, then, the circumstances here are close to those under consideration in Masters v. State, 344 So. 2d 616 (Fla. 1st DCA 1977), which affirmed. The court...