Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-0665 _____________________________ IVAN BLANDING, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. June 29, 2020 B.L. THOMAS, J. Appellant argues the trial court erred when it unnecessarily read an Allen charge to the jury and denied Appellant’s motion for mistrial after a juror expressed concern that she was unable to render a verdict in this case. In 2018, the victim went to bed around 9:30 p.m. Shortly thereafter, her doorbell rang three times. She originally thought it was her friend, but she became suspicious and grabbed her firearm. Through the window on the front door she saw a man wearing a black coat and black pants with a silver chain hanging out of his pocket. He asked the victim to use her phone three times. She denied his requests. Appellant then offered to play “Romeo and Juliet” with her. She rebuffed his invitation and told him she was not alone, hoping that he would leave. Instead of leaving, Appellant rammed the victim’s glass door with the side of his body twice, shattering the door. The victim ran into the kitchen, picked up her phone, and ran into the backyard. Once she was in her backyard, she fired a warning shot. She then went back inside her house, thinking the man was gone. When she went back into her house, Appellant grabbed her arm, which was holding the gun. A struggle ensued, causing her firearm to discharge. During the struggle, she broke a toe on a kennel, hit her head on a table, and fell to the ground. While the victim was on the ground, Appellant took off her pajama bottoms and began touching her vagina. She heard Appellant start to undo his pants and she told Appellant that she would do whatever he wanted, if he stopped what he was doing and if she allowed him to take her gun. Appellant stopped, said “okay,” took the gun and turned away. Seizing the opportunity to escape, the victim got her phone and a blanket and ran out the back door. She called 911 while she was across the street from her house. The victim waited with her friend while the police arrived and searched her house. Several officers from the Jacksonville Sheriff’s Office arrived. They promptly entered the home, saw the shattered door and signs of a struggle, and then noticed that a second-bedroom door was locked. One officer confirmed with the victim that the door should not have been locked. A police-dog unit arrived, and two police dogs forced the door open. Appellant was discovered naked hiding under a pile of blankets beside the bed when an officer stepped on the blankets. The officer leading the investigation and arrest identified Appellant as the person arrested in the victim’s home. A second officer identified Appellant based in part on the tattoos on his face. An officer spoke to the victim after Appellant was arrested. She was crying and scared. Another law-enforcement witness collected DNA evidence from Appellant. DNA testing was conducted on evidence throughout the victim’s home, where it was apparent the items were touched by someone during the forced entry and struggle. The 2 expert witness testifying for the Florida Department of Law Enforcement identified Appellant’s DNA from the home’s front doorknob. Appellant was charged with burglary with an assault or battery, attempting to commit sexual battery, and possession of a firearm by a felon. At the conclusion of Appellant’s trial, the jury began deliberations. Deliberations started at 10:03 a.m. At 10:34 a.m., the trial court received a note from a juror stating, “I am not comfortable making a decision in the verdict of guilty or not guilty and would like an alternate to take my place.” The trial court and the parties discussed several options, while the jury continued to deliberate for approximately another hour. Ultimately, the trial court decided to read the jury the standard Allen charge over both parties’ objection. About forty-two minutes after the trial court provided the Allen charge, the jury reached guilty verdicts on counts I and II. After a separate trial immediately following the first, the jury also found Appellant guilty of count III. The trial court sentenced him to life in prison. In Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court established what is now known as the Allen charge, an instruction that is given when it appears that the jury is having difficulty reaching a verdict. “In giving an Allen charge, the trial court must avoid: (1) coercive deadlines, (2) threats of marathon deliberations, (3) pressure for the surrender of conscientiously held minority views, and (4) any implication of a false duty to decide.” Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990). We hold the trial court did not err by giving the jury the Allen charge. “A trial court’s decision on the giving or withholding of a proposed jury instruction is reviewed under the abuse of discretion standard of review.” Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998). When reviewing a trial court’s decision to give an Allen charge to the jury, the applicable standard of review is whether, under the totality of the circumstances, the trial court’s actions were coercive. Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999). In Thomas, the trial court did not provide a true Allen charge but repeatedly provided informal directions to the jury to 3 continue deliberating, late into the evening and the next day. The supreme court held these informal directions to be improper, producing a coerced and unreliable jury verdict. The facts and trial court’s actions here are not comparable. Here, the jury was having difficulty, as the juror’s note indicated she was unable to render a verdict in this case. This fact was enough to justify the trial court’s reasonable decision to provide a proper Allen charge. See Gahley, 567 So. 2d at 458–60 (holding Allen charge proper where jury asked a question and then two hours later the trial court inquired into the jury’s progress and gave the jury the standard deadlock instruction); Campbell v. State, 186 So. 3d 577, 578 (Fla. 3d DCA 2016) (holding trial court should have given an Allen charge where a single juror stated multiple times that she was unwilling to render a verdict). Additionally, the trial court’s actions were not coercive. See Gahley, 567 So. 2d at 460 (holding the trial court’s actions were not coercive where “[t]he trial court did not restrict the jury’s deliberation by an arbitrary deadline, nor did the court require that the jury reach a verdict.”) Here, the trial court gave the standard deadlock jury instruction without modification. Additionally, the trial court did not impose an arbitrary deadline or require the jury to reach a verdict. This is supported by the fact that the jury continued to deliberate for approximately forty-five minutes after receiving the Allen charge. Because the jury was having difficulty rendering a verdict and the trial court’s actions were not coercive, the trial court properly read the jury an Allen charge. Although here, unlike in Gahley, Appellant objected to the Allen charge, we still hold no error occurred. This Court in Gahley relied on United States v. Blevinal, 607 F.2d 1124, 1127 (5th Cir. 1979), where the Fifth Circuit approved of an informal instruction that was far more susceptible to interpretation by the jury that it must reach a verdict, where the district court informed the jury that it “was unwilling to ‘give up’ the case” and deliberations would continue, albeit there was no “pressure” on the jury to reach a verdict. Here, there was simply no such pressure or coercion. The standard of review of a trial court’s order denying a motion for a mistrial is clear: “A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire 4 trial. A trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review.” England v. State, 940 So. 2d 389, 401–02 (Fla. 2006), as revised on denial of reh’g (Sept. 28, 2006) (citations omitted; emphasis added). No such error occurred here, and the trial court did not abuse its discretion in denying Appellant’s motion. In Williams v. State, 792 So. 2d 1207, 1208 (Fla. 2001), the Florida Supreme Court determined that the trial court’s action of replacing a juror with an alternate after the original juror sent a note stating she as unwilling to participate in the deliberative process, was error. The supreme court held that “whenever, as here, a juror becomes unable to proceed during deliberations, a new trial of the matter which was the subject of those deliberations is required.” Id. at 1210. The “spectre of jury taint” requires a new trial any time a juror becomes incapacitated during deliberation, especially where the juror’s incapacitation arises from participation in the deliberative process. Id. The situation in the present case is distinguishable from the situation in Williams. Here, the trial court’s action of delivering an Allen charge to the jury properly removed the “spectre of jury taint” caused by the juror’s note. The jury deliberated for more than an hour before receiving the Allen charge and did not render a verdict until forty-two minutes after receiving the Allen charge, giving the juror plenty of time to express any remaining uncertainty she may have felt about rendering a verdict. Because a motion for mistrial should only be granted when error is “so prejudicial as to vitiate the entire trial,” the trial court acted properly. England, 940 So. 2d at 401–02. Finally, there was no indication that the juror’s inability to reach a verdict was related to the deliberative process itself, further supporting the trial court’s decision not to grant Appellant’s motion for mistrial. As a result, we affirm the ruling of the trial court. AFFIRMED. WOLF and ROBERTS, JJ., concur. 5 _____________________________ 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 Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 6