[align=justify]
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counsel tables to keep the jury from seeing beneath them, and that a podium be used as a visual block in the courtroom.
Despite the trial court's efforts, one prospective juror, Kevin Mancusi, informed the court during individual voir dire that during a break, he saw the shackled ankles of a person whom he believed to be Hernandez underneath a chalkboard set up in the hallway outside the courtroom. Mancusi indicated difficulty in maintaining a presumption of innocence after seeing the shackles.
However, Mancusi did not know whether any other prospective jurors present in the hallway at the time saw the shackled individual, and he did not discuss it with any other members of the venire. He also stated that he did not see anything inside the courtroom that led him to the conclusion that Hernandez was shackled but that the measures that had been taken were obvious to him "after the fact." The trial court excused Mancusi for cause.
After Mancusi's individual voir dire, the defense moved to strike the venire and for a mistrial. Even though the trial court agreed with defense counsel that shackling was "inherently prejudicial," it denied the defense's motions, explaining that it was aware of the possibility that members of the jury would eventually become aware that Hernandez was shackled, despite the steps taken by the court, and noting that it did what was necessary under the circumstances.
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This Court reviews a trial court's ruling on a motion for mistrial under an abuse of discretion standard. England v. State, 940 So. 2d 389, 402 (Fla. 2006) (citing Perez v. State, 919 So. 2d 347 (Fla. 2005)). A trial court's decision on whether to dismiss a venire is also reviewed for an abuse of discretion.
Valderrama v. State, 816 So. 2d 1143, 1144 (Fla. 4th DCA 2002).
We have long held that a juror's or prospective juror's brief, inadvertent view of a defendant in shackles is not so prejudicial as to warrant a mistrial. See,
e.g., Singleton v. State, 783 So. 2d 970, 976 (Fla. 2001) (explaining that the jurors' brief glances of the defendant while he was being transported in prison garb and shackles, standing alone, were not so prejudicial as to require a mistrial); Stewart
v. State, 549 So. 2d 171, 174 (Fla. 1989) (finding that a new trial was not warranted where the defendant's shackles were ruled unobtrusive and necessary by the trial court and were only barely visible beneath the table); Heiney v. State, 447 So. 2d 210, 214 (Fla. 1984) (holding that the jurors' possible inadvertent and brief sight of the defendant being transported into the courtroom in chains did not justify a mistrial); Neary v. State, 384 So. 2d 881, 885 (Fla. 1980) (concluding that the jurors' inadvertent sight of the defendant being brought into the courtroom in handcuffs was not so prejudicial as to require a mistrial). Thus, the mere fact that a prospective juror saw the shackled ankles of a person whom he believed to be
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Hernandez underneath a chalkboard set up in the hallway outside the courtroom is not sufficient, standing alone, to warrant a mistrial or dismissal of the venire.
Moreover, the fact that Hernandez's shackles may have become visible to even all of the jurors does not mean that the court should have granted his motion for a mistrial or motion to strike the venire. Although a court cannot place a defendant in visible restraints as a routine matter, the Constitution "permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling." Deck, 544 U.S. at 633. Shackles are permissible if the trial court determines that such restraints are necessary to ensure the safety and security of those present during trial. See Bryant, 785 So. 2d at 428. This clearly suggests that a trial court, in its discretion, may legitimately deny a motion for mistrial or motion to strike the venire that may have seen a defendant shackled, provided that it has made the requisite findings that such shackles are necessary. As explained above, the trial court found that shackles were necessary and gave multiple, case-specific justifications for its decision. Furthermore, the trial court made extensive efforts to prevent the jury from seeing Hernandez's shackles.
In sum, we find that the trial court did not abuse its discretion in denying the motion for mistrial and motion to strike the venire, given that the record merely indicates that one prospective juror saw the shackled ankles of a person whom he
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believed to be Hernandez underneath a chalkboard set up in the hallway outside the courtroom, the trial court took numerous precautions to reduce the visibility of the shackles, and the trial court had a substantial foundation to find that shackles were necessary and relied on that foundation to justify their use.
JUROR CHALLENGE FOR CAUSE
Hernandez argues that the trial court erred in refusing to grant Hernandez's challenge for cause to juror Martina Lindquist.10 Hernandez contends that because there was a reasonable doubt about Lindquist's ability to render an impartial verdict, the trial court violated his constitutional rights by not excusing her.
Hernandez argues that a reasonable doubt existed because Lindquist had personal encounters with substance abuse through family members' drug addictions and had extensive contacts with law enforcement and the criminal justice system.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant the right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (citing Wainwright v. Witt, 469 U.S. 412 (1985), and Irvin v. Dowd, 366 U.S. 717, 722 (1961)). Under Florida law, "juror impartiality is a firm basis for excusing a prospective juror for cause." Busby v. State, 894 So. 2d 88, 99 (Fla. 2004). "The test for determining juror competency is whether the juror can lay
10. When Hernandez challenged Lindquist for cause, he had exhausted his peremptory challenges. The trial court denied Hernandez's challenge to Lindquist for cause and denied Hernandez's request for an additional peremptory challenge to use on Lindquist. Thus, Lindquist served on the jury.
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aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984) (citing Singer v. State, 109 So. 2d 7 (Fla. 1959)). If any reasonable doubt exists as to whether a juror possesses an impartial state of mind, the juror must be excused for cause. Busby, 894 So. 2d at 95. "In reviewing a claim of error such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors' voir dire responses and make observations which simply cannot be discerned from an appellate record." Smith v. State, 699 So. 2d 629, 635-36 (Fla. 1997) (citing Taylor v. State, 638 So. 2d 30, 32 (Fla. 1994)). Thus, it is within the province of the trial court to determine whether a challenge for cause is proper. Busby, 894 So. 2d at 95 (quoting Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1991)). The decision whether a challenge for cause is proper presents a mixed question of fact and law that will not be overturned in the absence of manifest error. See Smith, 699 So. 2d at 636.
While the record reflects that Lindquist had experience with substance abuse through family members' addictions and had connections with law enforcement, the record does not support Hernandez's claim that her background and her responses during voir dire raised a reasonable doubt about her impartiality.
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With regard to questions about how substance abuse and alcohol abuse had impacted her life, Lindquist indicated that it had affected her life in "numerous ways through numerous family members." Lindquist explained that her first husband's abuse of marijuana caused her first marriage to end. She also explained that her oldest son had been addicted to marijuana and that she had two cousins with substance abuse issues, which caused stress on the family. Lindquist also stated that her ex-brother-in-law's fiancée had a substance abuse problem and overdosed and died. However, when the States asked, "Do you think if drug addiction or the use of drugs becomes an issue in this case that, that you can put aside you family's involvement with substance abuse, and base your verdict solely on the evidence and the law in this trial?" Lindquist responded, "Yes, I do."
Furthermore, when asked by defense counsel about whether the ingestion of alcohol or cocaine could rise to the level of a mitigating factor in her mind, Lindquist responded affirmatively. In sum, while Lindquist indicated that her life had been affected by substance abuse, she did not give an equivocal response about her ability to base her verdict solely on the evidence and law, and she never indicated that her experience would play a role in how she decided the case.
With regard to her connections with law enforcement, Lindquist indicated that she was a probation office supervisor for the Department of Juvenile Justice (DJJ) of Santa Rosa County. As Hernandez concedes, this fact, alone, would be
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insufficient grounds for a cause challenge. Cf. Busby, 894 So. 2d at 95 (explaining that the mere fact that someone is a correctional officer is not per se grounds for a challenge for cause).
Lindquist also agreed with the State's assertion that she knew a lot of people in law enforcement. For example, she said that she was engaged to a former deputy and law enforcement officer in the Air Force, who was employed with the DJJ. She said that she knew three people in law enforcement personally and between fifty-five and sixty individuals professionally in Escambia and Santa Rosa Counties. Among those people, she said that she knew Detective Shuler, one of the investigators in Hernandez's case who later testified at the trial. She said that she had worked with him approximately five times in the previous ten years, mostly over the phone. She unequivocally stated that her knowledge of him would not prohibit her from being fair and impartial in a case where he was the case agent, that she could weigh his credibility the same as any other witness, and that she did not know anything about him that would give her reason to give him more credibility.
Significantly, the State also asked her if her knowledge of persons in law enforcement or her work would prejudice her in any way in deciding the case. She responded, "I don't believe so." The State then asked, "Can you assure Mr. Hernandez that you can listen to the evidence in this case and the law that the
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judge instructs, and base your verdict solely on the evidence and the law?"
Lindquist responded:
Yes, I can. I work for a neutral agency, and we work with all parties involved. But we are very neutral. We don't work for the Public Defender, the State Attorney or law enforcement. And we look at the totality of the big picture. And I am also a Quality Assurance Reviewer for the Department of Juvenile Justice. And I review our policy and procedure on that, as well as a Regional Administrative Review Liaison from Tallahassee with the Department of Juvenile Justice. So I look at facts.
Although Lindquist initially responded, "I believe so," rather than responding "Yes" to the question of whether her employment and knowledge of persons in law enforcement would prejudice her in deciding the case, this response was not equivocal enough, in light of the entirety of her questioning, to generate a reasonable doubt about her fitness as a juror. As this Court explained in Busby, "The mere fact that a juror gives equivocal responses does not disqualify that juror for service. . . . `In evaluating a juror's qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror.' " 894 So. 2d at 96 (quoting Parker v. State, 641 So. 2d 369, 373 (Fla. 1994)).
Lindquist gave unequivocal responses to other questions regarding her possible prejudices and biases and regarding her understanding of and ability to follow the law. A review of the entirety of her voir dire supports the court's denial of the cause challenge.
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Accordingly, we find that the trial court did not err in denying Hernandez's challenge for cause to juror Lindquist.
WITNESS'S EXEMPTION FROM SEQUESTRATION
Hernandez argues that the trial court erred by excusing the State's mental health expert from the rule of sequestration and allowing the expert to remain through the presentation of lay and expert testimony during the penalty phase of his trial. Hernandez asserts that this error unfairly allowed the State's expert to specifically tailor his testimony to do the most damage to Hernandez's case.
Hernandez argues that the trial court abused its discretion and that the court's error was inherently prejudicial.
At the beginning of his trial, Hernandez invoked the rule of sequestration.
Then, after the presentation of victim impact evidence during the penalty phase, the State requested that Dr. Harry McClaren, a licensed forensic psychologist who was appointed by the court as the State's mental health expert before trial and who examined Hernandez after the jury returned a guilty verdict, remain in the courtroom during the presentation of evidence by the State and defense:
MR. ELMORE [prosecutor] :
Judge, the State has--as the Court is aware, has secured the services of Doctor Harry McClaren, a licensed forensic psychologist for possible rebuttal testimony in this case. He has requested of me leave of the Court to sit in on the information that comes before the Court from this point forward concerning Michael Albert Hernandez, Junior.
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THE COURT: He's an expert. Do you have any problem with that?
MR. ROLLO [defense counsel] :
I think he's entitled to sit through the presentation of our experts, but I don't know that he can gather facts that go into--that help him base his opinion on whatever their rebuttal opinion is, which by the way I haven't had a chance to talk to him about. Based on the factual presentation of evidence expert opinion is one thing and fact witnesses I think are another.
THE COURT: Are you objecting?
MR. ROLLO: I am.
MR. ELMORE: Judge, the factual witnesses, such as the State's aggravating evidence, as well as the background evidence that will be presented concerning the defendant, are the very type things that a psychologist bases their expert opinion on. And that's why he's asked to be allowed to--
THE COURT: Either of you have any law on this? Do you think it's discretionary?
MR. ELMORE: Judge, the law is that it's discretionary with the Court.
THE COURT: I think it's discretionary. He's an expert and subject to cross. I'll permit it.
Dr. McClaren stayed in the courtroom during the penalty phase and testified.
The practice of sequestering witnesses has been used for centuries, and it came to the United States as part of our inheritance of the common law. See 6 John Henry Wigmore, Evidence in Trials at Common Law § 1837, at 455-56 (James H. Chadbourn rev., 1976). The United States Supreme Court has described its purpose as two-fold: "It exercises a restraint on witnesses `tailoring' their
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testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." Geders v. United States, 425 U.S. 80, 87 (1976); see also Knight v. State, 746 So. 2d 423, 430 (Fla. 1998) ("The purpose of the rule of sequestration is `to avoid a witness coloring his or her testimony by hearing the testimony of another,' thereby discouraging `fabrication, inaccuracy and collusion.' " (quoting Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.))).
Under the common law, this Court emphasized the discretionary nature of the trial court's decision to exclude witnesses from the rule of sequestration. See,
e.g., Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984) ("The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule."). Thus, while recognizing that some cases had approved an exception for expert witnesses from the general rule of sequestration, we held that the exception of an expert witness from the rule was a matter within the trial court's discretion. See McVeigh v. State, 73 So. 2d 694, 696 (Fla. 1954). Moreover, we applied an abuse of discretion standard when reviewing a trial court's decision to exempt a witness from the rule.
See, e.g., Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961) ("Unless a trial judge can be said to have abused the discretion which is his to exercise in such situations, then his judgment will not be disturbed."). Furthermore, we placed the burden on
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the complaining party to demonstrate an abuse of discretion with resultant injury.
See, e.g., id.
In Burns v. State, 609 So. 2d 600 (Fla. 1992), we addressed the exemption of the State's mental health expert witness under the common law. In Burns, the trial court first ruled that the State's psychologist would be allowed to remain in the courtroom during testimony by the defendant and the defense's psychologist, and the trial court later ruled that the experts for both the State and the defense would be allowed to remain in the courtroom for the entire penalty phase of the defendant's capital trial. Id. at 606. The trial court determined that these exemptions from the rule of sequestration were necessary because it had determined that the defendant was not required to submit to an examination by the State's expert. Id. We held that because "this was the only avenue available for the state to offer meaningful expert testimony to rebut the defense's evidence of mental mitigation," the trial court did not abuse its discretion in exempting the expert witnesses from the rule. Id.11
11. After Burns was decided, we adopted Florida Rule of Criminal Procedure 3.202. See Amendments to Florida Rule of Criminal Procedure 3.220-- Discovery (3.202--Expert Testimony of Mental Health Mitigation During Penalty Phase of Capital Trial), 674 So. 2d 83, 84 (Fla. 1995). Rule 3.202 provides that where the death penalty is sought, the court shall order that the defendant be examined by the State's mental health expert within forty-eight hours of a capital murder conviction. Fla. R. Crim. P. 3.202(d).
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