I
N THE TENTH JUDICIAL CIRCUIT COURTCase No.: TT00-002547-LD
Appeal No.: DD-6
MYRON SCOTT,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Ellen Masters presiding. Appellant Myron Scott alleges that the trial court erred in denying appellant's motion for new trial. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is AFFIRMED.
On appeal, the appellant argues that a juror committed misconduct by her Afailure to disclose her knowledge during voir dire or during the trial that she knew Assistant State Attorney, Joseph McCarthy. (Initial Brief, P.8) The appellant argues that the denial of his ability to voir dire the juror on her relationship with the State Attorney or his family prejudiced the substantial rights of the appellant.
The facts show that on November 25, 2000, the prosecutor, Joseph McCarthy, was married to Suzanne, a woman who worked at the Lakeland Electric and Water building. As a result of his wedding, the prosecutor was not was not working on November 27, 2000, the date of the jury selection in this case and he was not scheduled to prosecute the trial which was set for November 29, 2000. On November 28, 2000, the prosecutor learned that he would be needed to handle the trial. The prosecutor never had the opportunity to discuss the case with his new wife until after the trial ended on the evening of November 29, 2000. On November 30, 2000, Suzanne spoke with Ms. Hayes, the juror in question, who also works at the E & W building. Ms. Hayes, who knew Suzanne was going to marry an attorney, indicated that she had been a juror and wondered if the prosecutor was Suzanne's new husband. Having learned of this conversation, the prosecutor felt it proper to inform the court and the defense about the connection, even though the prosecutor believed it had no effect on the outcome of the case. The appellant filed a motion for new trial. At the hearing, the appellant argued that Aduring the trial were assuming that Ms. Hayes realized that she was an acquaintance of Mr. McCarthy's wife. We have no idea if that had an impact on her decision or not. (R 7) The prosecutor informed the court that he did not know the juror. He also stated that he knew the juror and his new wife had no contact during the week of the trial until the day after when his wife was approached by the juror. The court denied the motion.
In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have generally applied a three part test. De La Rosa v. Zequiera, 659 So.2d 239 (Fla. 1995); citing Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied, 275 So.2d 253 (Fla. 1973). First, the complaining party must establish that the information is relevant and material to the jury service in that case. Second, that the juror concealed the information during questioning. Finally, that the failure to disclose the information was not attributable to the complaining party's lack of diligence. Id. at 380. The court, having reviewed the record and applicable law, finds that the appellant has failed to establish the elements of juror misconduct required to warrant a new trial. De La Rosa.
Accordingly, it is ORDERED that the ruling of the trial court is AFFIRMED.
ORDERED February 2002.
Charles B. Curry, Chief Judge