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Grigg v. State

Florida Court of Appeals, First District

November 15, 2017

BRYAN GRIGG, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

         An appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.

          Francis Jerome Shea of Francis Jerome Shea, P.A., Jacksonville, for Appellant.

          Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

          OSTERHAUS, J.

         Bryan Grigg appeals his armed burglary conviction and sentence and argues that the trial judge committed fundamental error during voir dire by previewing "hypothetical" facts to the venire that closely matched the evidence in Mr. Grigg's own case and then communicating the judge's view that defendants in Mr. Grigg's situation should not go free. We agree with Mr. Grigg's argument and reverse and remand for a new trial.

         I.

         During jury selection in Mr. Grigg's trial below, the state prosecutor asked prospective jurors if any of them would have a problem reaching a verdict in a case where no physical evidence was presented. Three prospective jurors indicated that they couldn't convict a defendant in the absence of physical evidence, whereupon the trial court began asking its own questions. The trial judge asked the potential jurors how they would decide two "hypothetical" cases using facts that were almost identical to the evidence in Mr. Grigg's case. The trial judge asked them to assess the hypothetical cases as though they themselves were victims of the crimes and told them his view that the defendants in his hypotheticals should not go free.

         A jury was ultimately selected without objection, not including the three prospective jurors who said they couldn't convict in a case lacking physical evidence. And then, on the heels of dismissing the unselected members of the venire, the trial judge reiterated that it was incorrect to think that the State couldn't bring a case in the absence of physical evidence; that it wasn't unusual for there to be no physical evidence in a criminal case; and that no physical evidence doesn't mean there wasn't a crime.

         The State's armed burglary case proceeded against Mr. Grigg and the evidence against him was very similar to what the trial court had described "hypothetically" at jury selection. The jury found him guilty. And now, Mr. Grigg seeks a new trial on due process-related grounds, because of the trial court's comments during voir dire.

         II.

         Because Mr. Grigg did not object to the trial judge's comments that he is now challenging, we review the court's actions for fundamental error. "Fundamental error is defined as error which 'goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.'" Olivera v. State, 58 So.3d 352, 353 (Fla. 1st DCA 2011) (quoting Sparks v. State, 740 So.2d 33, 35 (Fla. 1st DCA 1999)). "[A] fundamental tenet of due process is a fair and impartial tribunal." Sparks, 740 So.2d at 36.

         This case involves statements made at voir dire. "The purpose of voir dire is to 'obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice.'" Hoskins v. State, 965 So.2d 1, 13 (Fla. 2007) (quoting Ferreiro v. State, 936 So.2d 1140, 1142 (Fla. 3d DCA 2006)). The purpose is not "to obtain a preview of [potential juror's] opinions of the evidence." Id. A trial judge's improper participation in voir dire can render a trial unfair and result in fundamental error. Morgan v. State, 198 So.3d 812, 816 (Fla. 2d DCA 2016). Trial judges must be especially mindful of their statements because of "the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by the judge." Jacques v. State, 883 So.2d 902, 906 (Fla. 4th DCA 2004) (quoting Kellum v. State, 104 So.2d 99, 104 (Fla. 3d DCA 1958)). Judges must "never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the government." Sparks, 740 So.2d at 37 (quoting J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998)). Nor should judges "sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused." § 90.106, Fla. Stat. (2016).

         When three prospective jurors at voir dire in this case indicated that they couldn't convict a defendant in the absence of physical evidence, the trial court proceeded to ...


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