Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1705 _____________________________ RYAN ONEIL JOSEPH, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert E. Long, Judge. May 20, 2020 OSTERHAUS, J. Ryan Oneil Joseph appeals a conviction and sentence for possession of cannabis of more than 20 grams. He seeks a new trial arguing that the trial court abused its discretion when it declined to strike the jury panel after a prospective juror’s comments. We affirm. I. Joseph was charged with two counts of possession of a controlled substance with intent to sell or deliver, one count of possession of drug paraphernalia, and one count of maintaining a place where controlled substances are kept and sold. The charges arose out of a search warrant executed upon a residence where varying amounts of cannabis and other drugs were found. During jury selection, a prospective juror said she worked as an x-ray technician at all the jails, prisons, and juvenile detention centers in Florida, Georgia, and Alabama. She remarked during voir dire that the defendant “looks familiar to me. I may have done an x-ray on him.” Based on these comments, Joseph moved to strike the entire jury panel, arguing that the comments created a reasonable doubt as to whether any jurors could be impartial and fair in his trial. The trial court denied the motion. Joseph proceeded to trial and was acquitted of all but one count where he was convicted of the lesser charge of possession of cannabis of more than 20 grams. The trial court sentenced him to 24 months of felony drug offender probation, including 60 days’ incarceration in jail, followed by 12 months of regular probation. II. Joseph argues that the trial court erred in declining to strike the entire jury panel following the prospective juror’s comments. We review the denial of a motion to strike the jury panel for an abuse of discretion. Morris v. State, 219 So. 3d 33, 41 (Fla. 2017). “A trial court abuses its discretion when the decision is ‘arbitrary, fanciful, or unreasonable.’” Payton v. State, 239 So. 3d 129, 131 (Fla. 1st DCA 2018) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990)). “Defendants have a constitutional right to a trial by an impartial jury.” Holt v. State, 987 So. 2d 237, 239 (Fla. 1st DCA 2008). This right is violated if jurors are “inadvertently informed that the defendant has other, pending charges.” Id. at 239–40; see also Jackson v. State, 729 So. 2d 947, 950–51 (Fla. 1st DCA 1998) (finding reversible error where defendant was being tried on single count, but judge asked in jury’s presence whether the case was proceeding on all four counts). These rights may also be violated “where the jury is inadvertently informed that the defendant . . . is a convicted felon,” Evans v. State, 36 So. 3d 185, 186 (Fla. 4th DCA 2010), or is known by corrections officers who serve on the 2 venire. See Turner v. State, 51 So. 3d 542, 543 (Fla. 5th DCA 2010); Richardson v. State, 666 So. 2d 223, 224 (Fla. 2d DCA 1995). Joseph relies on three cases. In Richardson, the Second District reversed the trial court’s denial of the defendant’s motion to strike the venire panel after a prospective juror, who worked as a corrections officer, indicated that she knew the defendant from the correctional institution. 666 So. 2d at 224 The Court took this statement from the corrections officer to mean that the defendant was a convicted felon who had served time, which prejudiced the jury venire panel. See id. Similarly, in Turner, a prospective juror indicated that she knew the defendant from her work as “a former corrections officer at the Marion County Jail.” 51 So. 3d at 543. Some of the prospective jurors were asked about the comments, and they understood them to mean that the corrections officer knew the defendant from a past incarceration. See id. at 543. Under these circumstances, Turner was also reversed and remanded for a new trial. Finally, in Evans, a prospective juror indicated that he worked at the county jail and knew the jointly tried defendants from work. 36 So. 3d at 185. The Fourth District took the comments as suggesting that the defendants had prior criminal charges or convictions and also granted a new trial. See id. at 186. Here, different from these cases, the prospective juror never definitively said that she knew Joseph or had contact with him. Rather, she made the non-committal statement that the defendant “looks familiar” and that they “may” have interacted in the course of her work. After the comment was made, voir dire proceeded with Joseph passing on the opportunity to ask clarifying follow-up questions of the potential juror and panel to determine whether anyone’s impartiality was affected. The potential juror who made the comment was not ultimately empaneled as a juror. Under these circumstances, we don’t have the same concerns about whether the defendant received an impartial jury and a fair trial as in the three cases cited above. In fact, Joseph was found not guilty on three of the four counts charged by the State. And on 3 count II, the jury found him guilty of a lesser, possession charge. We don’t think the trial court acted arbitrarily, fancifully, or unreasonably by denying Joseph’s motion to strike the entire jury panel. III. The judgment and sentence are AFFIRMED. JAY and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Ross S. Haine II, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 4