IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-1055
ANTHONY NOTTAGE,
Petitioner,
-vs-
STATE OF FLORIDA,
Respondent.
BRIEF OF PETITIONER ON JURISDICTION
ON PETITION FOR DISCRETIONARY REVIEW
FROM THE DISTRICT COURT OF APPEAL
OF FLORIDA, THIRD DISTRICT
CARLOS J. MARTINEZ
Public Defender
Eleventh Judicial Circuit
Of Florida
1320 N.W. 14th Street
Miami, Florida 33125
(305) 545-1958
HOWARD K. BLUMBERG
Assistant Public Defender
Florida Bar No. 264385
Counsel for Petitioner
TABLE OF CONTENTS
PAGE
INTRODUCTION .................................................................................................... 1
STATEMENT OF THE CASE AND FACTS ....................................................... 1
SUMMARY OF ARGUMENT ............................................................................... 5
ARGUMENT ............................................................................................................ 6
THE DECISION OF THE THIRD DISTRICT COURT OF
APPEAL IN THE PRESENT CASE, WHICH EXPRESSLY
REJECTS THE FOURTH DISTRICT COURT OF APPEAL’S
PER SE RULE MANDATING A MISTRIAL WHEN A JURY IS
STILL DEADLOCKED AFTER AN ALLEN CHARGE IS
GIVEN, EXPRESSLY AND DIRECTLY CONFLICTS WITH
THE DECISIONS OF THE FOURTH DISTRICT IN Tomlinson
v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), Washington v. State,
758 So. 2d 1148 (Fla. 4th DCA 2000), AND Rubi v. State, 952 So.
2d 630 (Fla. 4th DCA 2007) ........................................................................... 6
CONCLUSION ....................................................................................................... 10
CERTIFICATE OF SERVICE ............................................................................ 11
CERTIFICATE OF FONT ................................................................................... 11
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ii
TABLE OF CITATIONS
CASES
Allen v. United States, 164 U.S. 492 (1896) ........................................................ 4
Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla.1960)....................................... 6
Nottage v. State, 34 Fla. L. Weekly D993 (Fla. 3d DCA May 20, 2009) ............ 1
Rubi v. State, 952 So. 2d 630 (Fla. 4th DCA 2007) ..................................... 6, 7, 8
Thomas v. State, 748 So. 2d 970 (Fla.1999) ................................................ 5, 8, 9
Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991) ............................. 6, 7, 8
Wallace v. Dean, 3 So.3d 1035 (Fla.2009) .......................................................... 6
Washington v. State, 758 So. 2d 1148 (Fla. 4th DCA 2000) ....................... 6, 7, 8
INTRODUCTION
This is a petition for discretionary review of the decision of the Third
District Court of Appeal in Nottage v. State, 34 Fla. L. Weekly D993 (Fla. 3d DCA
May 20, 2009), on the grounds of express and direct conflict of decisions. In this
brief of petitioner on jurisdiction, all references are to the attached appendix,
paginated separately and identified as “A” followed by the page number.
STATEMENT OF THE CASE AND FACTS
The relevant proceedings in the trial court, as summarized in the opinion of
the district court of appeal, are as follows:
The State of Florida charged Nottage with numerous crimes,
including attempted first-degree felony murder, kidnapping, three
counts of sexual battery, attempted sexual battery, aggravated battery,
burglary, child abuse, and grand theft of a motor vehicle. The jury
began deliberations at 6:25 p.m. on a Friday. At the start of
deliberations, the trial court informed the jury that it would “probably
call it a night” at approximately 7:30 p.m. and have the jury return the
following Monday, if the jury had not arrived at a verdict by that time.
During deliberations, the jury sent a note in which the jurors asked
if alternate jurors could join in the deliberations “for more opinions.”
At 7:30 p.m., the trial court sent the jury a note stating that “only six
of you can decide the case. We are going to recess for the evening.”
The trial court thereafter dismissed the jury for the evening.
Deliberations continued the following Monday at 9:30 a.m. At
that point, the trial court advised counsel that, after the jurors were
sent home on Friday night, one of the jurors remained behind and
expressed concerns for her safety because she lived and worked in the
same community as some of the individuals connected to the case.
The defense moved for a mistrial. The trial court conducted an inquiry
of the juror, and the juror assured the trial court that she could
1
continue with her deliberations. The trial court denied the motion for
mistrial.
At approximately 11:00 a.m. that same day, the jurors resumed
deliberations. Soon thereafter, the jurors sent a note that read as
follows:
First degree: Four yes; maybe, one; no, one.
Kidnapping: Four, yes; no, two.
Sexual battery: Yes, five; no, one.
Aggravated battery: Yes, four; maybe, two.
Burglary, trespassing: Yes, five; no, one.
The Allen
charge is contained in Florida Standard Jury Instruction
(Criminal) 3.06, which reads as follows:
I have only one request of you. By law I cannot demand this
of you, but I want you to go back into the jury room, then,
taking your turns, tell each of the other jurors about any
weaknesses of your own positions. You shall not interrupt
each other's comments or each other's views until each of you
have had a chance to talk.
After you have done that, if you simply cannot reach a verdict,
then return to the courtroom and I will declare this case
mistried, and will discharge you with my sincere appreciation
for your services. You may now retire to continue with your
deliberations. Thank you, Ladies and Gentlemen.
After reading these instructions, the jury resumed deliberations at
approximately 4:00 p.m.
Around 4:55 p.m., the jury sent another note that read as follows:
“[W]e are still five to one, all the way down.” Because the judge had
failed to admonish the jury not to disclose the numerical results of
their votes during deliberations as instructed in the Thomas
FN2 case,
it now became clear that there was a lone holdout in the jury room.
The trial court dismissed the jurors for the evening.
FN2. Thomas v. State
, 748 So.2d 970 (Fla.1999).
2
The proceedings resumed the following day at approximately
10:00 a.m. The trial court then advised counsel that one of the jurors
previously had asked the bailiff for a private conversation with the
judge, which the trial court did not permit.
Defense counsel moved for a mistrial based upon the note in
which the jury indicated that there was a vote of five to one and the
exchange that occurred between the juror who requested a private
conversation with the judge. The trial court denied the motion and
ordered the jury at approximately 10:50 a.m. to continue with
deliberations.
A short time thereafter, the trial court received the following note
from the jury:
[Juror's name] would like to be removed from this trial. It is
causing me a great deal of stress, because I cannot come to a
decision on this matter. I thought I could be fair and impartial,
but I am trying very much so, but, sir, could you please excuse
me?
The trial court summoned the attorneys to the courtroom. About
ten minutes elapsed before all the lawyers returned to the courtroom.
At that point, the jury sent out the completed verdict forms, finding
Nottage guilty as charged on all counts. Defense counsel again moved
for a mistrial, arguing that the jury had been deadlocked after the jury
sent the note that followed three days of deliberations. The trial court
denied the motion.
(A. 2-5).
On appeal to the Third District Court of Appeal, Nottage argued that a new
trial was warranted based upon numerous cases that had reversed guilty verdicts
returned by a jury after the trial court ordered the jury to continue deliberations
3
following an Allen
1
charge and a subsequent jury deadlock (A. 6). In its decision,
the district court of appeal acknowledged that the Fourth District Court of Appeal
had adopted a per se rule mandating a mistrial after a jury is still deadlocked after
an Allen charge, citing Tomlinson v. State, 584 So.2d 43 (Fla. 4th DCA 1991),
Rubi v. State, 952 So.2d 630 (Fla. 4th DCA 2007) and
Washington v. State, 758
So.2d 1148 (Fla. 4th DCA 2000) (A. 6-8). However, the Third District refused to
adopt the per se rule adopted by the Fourth District:
No other district court has adopted a per se rule mandating a
mistrial after the jury is still deadlocked after an Allen
charge. This
Court, in Warren
, 498 So.2d at 472, employs a more flexible standard
to conclude that the trial court committed fundamental error.
(A. 8). Applying its more flexible standard rather than the Fourth District’s per se
rule, the Third District held that the trial judge did not commit reversible error by
denying the defense motion for mistrial and ordering the jury to continue its
deliberations after the jury reported that it was still deadlocked after the jury was
given an Allen charge (A. 9-11).
A notice invoking this Court’s discretionary jurisdiction based on express
and direct conflict of decisions was filed June 12, 2009.
1
Allen v. United States, 164 U.S. 492 (1896).
4
SUMMARY OF ARGUMENT
The Fourth District Court of Appeal has adopted a per se rule mandating a
mistrial when a jury is still deadlocked after receiving an Allen charge, and that
court has concluded that its per se rule was implicitly approved by this Court in
Thomas v. State, 748 So.2d 970 (Fla.1999). In the present case, the Third District
Court of Appeal expressly rejected the Fourth District’s per se rule, adopted a
totality of the circumstances test, and concluded that such a totality of the
circumstances test is required by this Court’s decision in Thomas. Under these
circumstances, petitioner respectfully submits this Court should exercise its
discretionary jurisdiction to review the decision of the district court of appeal in
this case, resolve the conflict generated by that decision, and establish the proper
rule to be applied in determining whether a mistrial is required when a jury is still
deadlocked after receiving an Allen charge.
5
ARGUMENT
THE DECISION OF THE THIRD DISTRICT COURT OF
APPEAL IN THE PRESENT CASE, WHICH EXPRESSLY
REJECTS THE FOURTH DISTRICT COURT OF APPEAL’S
PER SE RULE MANDATING A MISTRIAL WHEN A JURY IS
STILL DEADLOCKED AFTER AN ALLEN CHARGE IS
GIVEN, EXPRESSLY AND DIRECTLY CONFLICTS WITH
THE DECISIONS OF THE FOURTH DISTRICT IN Tomlinson
v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), Washington v. State,
758 So. 2d 1148 (Fla. 4th DCA 2000), AND Rubi v. State, 952 So.
2d 630 (Fla. 4th DCA 2007).
The two principal circumstances that support this Court’s jurisdiction to
review district court decisions based upon alleged express and direct conflict are
(1) the announcement of a rule of law that conflicts with a rule previously
announced by this Court or another district court; or (2) the application of a rule of
law to produce a different result in a case that involves substantially similar
controlling facts as a prior case disposed of by this Court or another district court.
Wallace v. Dean, 3 So.3d 1035, 1039 (Fla.2009); Nielsen v. City of Sarasota, 117
So.2d 731, 734 (Fla.1960). In the present case, the Third District Court of Appeal
announced a rule of law that conflicts with a rule previously announced by the
Fourth District Court of Appeal.
In Tomlinson v. State, 584 So.2d 43 (Fla. 4th DCA 1991), the Fourth District
Court of Appeal rejected a totality of the circumstances test and adopted a per se
rule that once an Allen charge is given to the jury, it is fundamental error for a trial
6
court to send the jury back for further deliberations, after it announced a second
deadlock, with further instructions given:
We adopt the per se approach as correct and express agreement
with the rationale in Seawell and Warren. We hold that it was
fundamental error for the trial court herein to send the jury back for
deliberations, after it announced a second deadlock, with the
instruction given. We reverse appellant’s conviction and sentence for
first-degree murder and remand this case for a new trial.
Tomlinson, 584 So.2d at 45.
The Fourth District reaffirmed this per se rule in Washington v. State, 758
So.2d 1148 (Fla. 4th DCA 2000):
Once the Allen charge is given, flexibility is lost and the trial crosses
the river of no return. As we held in Tomlinson v. State, 584 So.2d 43,
45 (Fla. 4th DCA 1991), it is per se reversible error to repeat a
deadlock jury instruction and send a jury back for further deliberations
after it has announced a second deadlock.FN4
FN4. The supreme court cited Tomlinson v. State, 584 So.2d
43 (Fla. 4th DCA 1991), with approval in Thomas v. State,
748 So.2d 970, 979 (Fla. 1999).
Washington, 758 So.2d at 1154.
The most recent reaffirmation of the Fourth District’s per se rule is Rubi v.
State, 952 So.2d 630 (Fla. 4th DCA 2007):
This court has held that it is fundamental error for the trial court to
repeat a deadlock jury instruction and send a jury back for further
deliberations after it has announced a second deadlock. Tomlinson v.
State, 584 So.2d 43, 45 (Fla. 4th DCA 1991). If the second note that
the jury sent out is construed to be a second announcement of
deadlock, then Tomlinson requires reversal.
7
Rubi, 952 So.2d at 633-34. The per se rule adopted by the Fourth District is
consistent with the language of the Allen charge which tells the jury that after
deliberations resume following the Allen charge, “if you simply cannot reach a
verdict then come back to the courtroom and I will declare this case a mistrial and
we'll discharge you for your services.” Florida Standard Jury Instruction (Criminal)
3.06 (emphasis supplied).
In its decision in this case, the Third District Court of Appeal acknowledged
that the Fourth District Court of Appeal had adopted a per se rule mandating a
mistrial when a jury is still deadlocked after receiving an Allen charge, citing
Tomlinson, Washington and Rubi (A. 6-8). However, the Third District refused to
adopt the per se rule adopted by the Fourth District, and instead utilized the totality
of the circumstances test which had been rejected by the Fourth District in
Tomlinson:
No other district court has adopted a per se rule mandating a
mistrial after the jury is still deadlocked after an Allen
charge. This
Court, in Warren
, 498 So.2d at 472, employs a more flexible standard
to conclude that the trial court committed fundamental error.
(A. 8). The Third District concluded that the Fourth District’s per se rule “would
be in conflict with Thomas, which stated that the standard of review was whether,
under the totality of circumstances, the trial court's actions were coercive. See
Thomas, 748 So.2d at 976.” (A. 10). Utilizing the totality of the circumstances test
rejected by the Fourth District in Tomlinson, the Third District concluded that
8
“under the totality of the circumstances here, the trial court did not commit
reversible error recessing the trial until the following day after giving the Allen
charge.” (A. 11).
Thus, the Fourth District Court of Appeal has adopted a per se rule
mandating a mistrial when a jury is still deadlocked after receiving an Allen
charge, and that court has concluded that its per se rule was implicitly approved by
this Court in Thomas. In the present case, the Third District Court of Appeal
expressly rejected the Fourth District’s per se rule, adopted a totality of the
circumstances test, and concluded that such a totality of the circumstances test is
required by this Court’s decision in Thomas. Under these circumstances, petitioner
respectfully submits this Court should exercise its discretionary jurisdiction to
review the decision of the district court of appeal in this case, resolve the conflict
generated by that decision, and establish the proper rule to be applied in
determining whether a mistrial is required when a jury is still deadlocked after
receiving an Allen charge.
9
CONCLUSION
Based on the foregoing facts, authorities and arguments, petitioner
respectfully requests this Court to exercise its discretionary jurisdiction to review
the decision of the Third District Court of Appeal.
Respectfully submitted,
CARLOS J. MARTINEZ
Public Defender
Eleventh Judicial Circuit
of Florida
1320 N.W. 14th Street
Miami, Florida 33125
BY:___________________________
HOWARD K. BLUMBERG
Assistant Public Defender
10
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
delivered by hand to the Office of the Attorney General, Criminal Division, 444
Brickell Avenue, Suite 650, Miami, Florida 33131, this 17th day of June, 2009.
______________________________
HOWARD K. BLUMBERG
Assistant Public Defender
CERTIFICATE OF FONT
Undersigned counsel certifies that the type used in this brief is 14 point
proportionately spaced Times New Roman.
______________________________
HOWARD K. BLUMBERG
Assistant Public Defender
