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Dowd v. State

Florida Court of Appeals, Second District

May 26, 2017

CALVIN W. DOWD, Appellant,


         Appeal from the Circuit Court for Pinellas County; Michael F. Andrews, Judge.

          John H. Trevena and Cynthia E. Richards, Largo, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

          KELLY, Judge.

         Calvin W. Dowd appeals from his judgment and sentence for lewd and lascivious molestation. He raises three issues in this appeal, none of which require reversal.

         Dowd first challenges the trial court's order denying his motion to suppress the post-Miranda[1] statements he made to sheriff's detectives. Dowd argues the totality of the circumstances demonstrate the statements are the product of coercive police tactics designed to extract an involuntary confession. We disagree. When a defendant alleges his statement is the product of police coercion, courts must determine the voluntariness of the confession by examining the totality of the circumstances. Traylor v. State, 596 So.2d 957, 964 (Fla. 1992). Dowd argues the trial court erred because it evaluated each of the detectives' tactics separately instead of cumulatively. The trial court's order demonstrates otherwise. The sixteen-page order shows the trial court thoroughly considered each factor Dowd raised as a part of its larger analysis of the totality of the circumstances. We find no error in the trial court's analysis or in its conclusion that "[t]he admission was a free choice made by a man who appeared burdened by a secret and relieved, even if only temporarily, by its revelation."

         Dowd also challenges the trial court's decision to allow Willams[2] Rule evidence. We need not decide whether the trial court abused its discretion in allowing the challenged evidence because after a careful review of the record on appeal, we are convinced beyond a reasonable doubt that the error, if any, did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

         Finally, Dowd argues the trial court should have granted his motion to interview jurors. Dowd filed the motion pursuant to Florida Rule of Criminal Procedure 3.575. We review a trial court's decision on a motion to interview jurors under an abuse of discretion standard. Gray v. State, 72 So.3d 336, 337 (Fla. 4th DCA 2011) (quoting Anderson v. State, 18 So.3d 501, 509 (Fla. 2009)). Rule 3.575 states as follows:

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.

         Dowd's motion alleged that an alternate juror approached members of his family and told them that before jury deliberations began, some jurors had discussed the trial. The alternate also said the jurors had elected the foreman on the first day of trial. Dowd contends the alternate juror's allegations demonstrate the "verdict may be subject to challenge." Accordingly, rule 3.575 requires the trial court to permit the interview.

         The trial court denied Dowd's motion after finding that the facts alleged by the alternate juror either pertained to matters that inhered in the verdict or that they did not demonstrate a reasonable possibility that Dowd was prejudiced. Dowd contends the trial court did not follow the proper procedure because it determined the issue of prejudice without first conducting any interviews. He argues that once he presented facts showing juror misconduct, the court should have ordered the interviews. After the interviews, the court could then conduct an evidentiary hearing at which the State would have to show the misconduct did not prejudice Dowd. We disagree. The trial court correctly recognized that absent a preliminary showing of prejudice, Dowd was not entitled to interview jurors.

         At one time it was "common practice for counsel to interview jurors at the end of a trial, both to find out 'what went wrong' and for the general education of counsel." Brassell v. Brethauer, 305 So.2d 217, 219 (Fla. 4th DCA 1974); see also Branch v. State, 212 So.2d 29, 32 (Fla. 2d DCA 1968) (noting that after a trial, the appellant's counsel had a conversation with a juror "for his own betterment and education"); Bullard v. State, 324 So.2d 652, 655 (Fla. 1st DCA 1975) (Boyer, C.J., dissenting) (noting that it was an attorney's "Right" to interview jurors after the trial and that it "was customary for attorneys to interview jurors after their discharge to determine whether or not their verdict was subject to any legal challenge"). In 1966, the Florida Bar asked the supreme court to "amend[] Canon 23 . . . so as to terminate indiscriminate interviewing of jurors by requiring that a lawyer have 'reason to believe' [the verdict was subject to challenge] and that he file notice of his intention to interview." Brassell, 305 So.2d at 219-20 (quoting In Re Canon of Ethics Governing Attorneys, 186 So.2d 509, 510 (Fla. 1966)); see also Branch, 212 So.2d at 32 (noting that Canon 23 prohibits inquiry by an attorney of a juror except to challenge for legal cause).

         Canon 23 was the predecessor of Disciplinary Rule 7-108(D) and Ethical Consideration 7-29 of the Code of Professional Responsibility. Ethical Consideration 7-29 identified the ...

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