HERMANE THOMANY v. STATE OF FLORIDA , 252 So. 3d 256 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HERMANE THOMANY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-755
[July 18, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 13CF008026AMB.
Robyn M. Blake, Miami, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, C.J.
The defendant appeals from his conviction for first degree murder. The
defendant’s sole argument on appeal is that the trial court erred in limiting
the amount of time given to his trial counsel for voir dire. 1 We review a
trial court’s imposition of time limits on voir dire for an abuse of discretion.
Hopkins v. State, 223 So. 3d 285, 286 (Fla. 4th DCA 2017). Applying that
standard of review, we conclude that although the trial court limited the
amount of time given to both sides for voir dire, the amount of time was
sufficient to have allowed the defendant’s trial counsel to have completed
voir dire. Therefore, we affirm.
In rendering this decision, we write to convey four points.
First, counsel’s time for voir dire is not unlimited. We recognize that
Florida Rule of Criminal Procedure 3.300(b) provides: “Counsel for both
the state and defendant shall have the right to examine jurors orally on
their voir dire. . . . The right of the parties to conduct an examination of
each juror orally shall be preserved.” However, we have interpreted this
1 The defendant’s appellate counsel was not the defendant’s trial counsel.
rule as affording the parties “a reasonable voir dire examination of
prospective jurors.” Hopkins, 223 So. 3d at 286 (emphasis added); O’Hara
v. State, 642 So. 2d 592, 593 (Fla. 4th DCA 1994) (same). Here, it appears
that the defendant’s trial counsel spent an extraordinary amount of time
asking questions not reasonably intended to elicit useful information in
deciding whether to exercise cause or peremptory challenges. Rather, it
appears counsel’s questions primarily were intended to plant seeds in the
jury’s mind about the defendant’s theory of the case, to be argued later
during trial. Such “pre-trying” of the case is not the purpose of voir dire,
nor is it an appropriate use of the amount of time provided for voir dire.
Second, despite the fact that defense counsel could have made better
use of the allotted time, the trial court should not read this opinion as
suggesting that inflexibility in the amount of time provided for voir dire is
a wise path upon which to continue to travel. See Hopkins, 223 So. 3d at
286 (“[L]imits that do not flex with the circumstances can result in
unreasonable curtailment of counsel’s efforts to obtain a fair and impartial
jury to try the issues in the cause.”) (citation and internal quotation marks
omitted); O’Hara, 642 So. 2d at 593-94 (“A trial court abuses its discretion
when the imposition of unreasonable time limitations or limitations on the
number of questions results in the loss of this fundamental right.”). A
brief extension of time would have been far less than the many hours
which both sides’ appellate counsel spent on this appeal, and many days
less than the amount of time which would have been necessary to try this
case again if we decided to reverse.
Third, no mathematical formula exists, nor should a mathematical
formula exist, for the amount of time provided for voir dire. We recognize
that in certain cases, our opinions have included statements which the
defendant has inferred to suggest that a mathematical formula should be
applied to voir dire. See Hopkins, 223 So. 3d at 286 (“According to
appellant, the trial court’s pre-established time limit on voir dire allowed
counsel only 3.6 minutes per juror and prevented counsel from pursuing
a reasonable voir dire examination”); O’Hara, 642 So. 2d at 594 (“Under
the facts in this case, the trial court abused its discretion in limiting voir
dire questioning to less than two minutes per prospective juror.”). No such
suggestion should be inferred. “In reviewing a trial court’s discretionary
decision to limit the amount of time allotted for voir dire, we consider the
nature of the case and the reasonableness of the use, by the attorneys, of
the time allotted.” Anderson v. State, 739 So. 2d 642, 644 (Fla. 4th DCA
1999) (citation and internal quotation marks omitted). We have applied
that standard in this case, and shall continue to apply that standard on a
case-by-case basis.
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Fourth, we question the trial court’s reason for denying the defendant’s
motion for new trial, which raised the same argument as in this appeal.
The trial court’s order, denying the motion, reasoned:
[The defendant] claims he is deserving of a New Trial because
the Court unreasonably restricted his time allotment to
conduct a meaningful voir dire examination. In that regard,
the Court finds that [the defendant’s counsel] had twenty nine
(29) days to frame his voir dire within the time limits set by
the Court, yet decided, instead of conforming his voir dire
examination to the Court’s pretrial order, to ask numerous
irrelevant and time consuming questions about matters which
had nothing or very little to do with any prospective juror’s
qualifications or ability to serve. Based on this premeditated
conduct, it is patently obvious that counsel conducted his voir
dire in a manner to attempt to preserve this issue for appeal
without ever attempting to conform his conduct to the
reasonable time limitations set forth nearly a month before trial
in its Amended Scheduling Order.
(emphasis added). We recognize that “the trial court is in the best position
to evaluate what is going on in the jury selection process.” Hoskins v.
State, 965 So. 2d 1, 11 (Fla. 2007). However, we see nothing, at least in
the written record, supporting the trial court’s finding that “counsel
conducted his voir dire in a manner to attempt to preserve this issue for
appeal.” Rather, as stated above, it appears that counsel’s questions
primarily were intended to “pre-try” the case. Although such “pre-trying”
of the case is not a proper purpose of voir dire either, we view such conduct
as less egregious than the conduct which the trial court suspected had
motivated defense counsel in this case.
On a final note, although we have commented upon the manner in
which defense counsel conducted voir dire in this case, we do not view
counsel’s conduct as reaching the level of ineffective assistance. Based on
our review of the record, it does not appear the defendant was prejudiced.
Affirmed.
GROSS and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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