IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT,
IN AND FOR SEMINOLE COUNTY, FLORIDA

CASE NO. 14-CF-0097-A
STATE OF FLORIDA,
Plaintiff,
vs.
MITCHELL A. NEEDELMAN,
Defendant.



ORDER VACATING JUDGMENT AND GRANTING DEFENDANT A NEW TRIAL BASED
UPON JUROR MISCONDUCT

The Defendant was charged along with two co-defendants in an eight count information relating
to the procurement of a contract entered while he'was serving as the Brevard County Clerk of the Court.
He was tried between October 16 and October 31, 2017, and he was found guilty of all four charges
pertaining to him.? After the trial, defense counsel was contacted by one of the jurors, Rafael Rivera, who
alleged that the jury had violated the Court?s instructions. Based upon that conversation, the Court
permitted an in?court inquiry of Juror Rivera, held on November 17, 2017. Juror Rivera testi?ed that the
jurors had continuously engaged in deliberations from the ?rst time they met, that one of the jurors had
researched the applicable penalty for bribery, and that one of the jurors referred to the Defendant as a
?scumbag? lobbyist. Based upon this testimony, the Court permitted further inquiry of the ?ve other
jurors and the two alternates.

At the subsequent hearing, held on December 7, 2017, the other seven jurors testi?ed about Juror
Rivera?s allegations. The jurors adamantly denied conducting any deliberations during the evidentiary
portion of the trial. They each conceded that there were comments about the tone of some of the
testimony, where the testimony of the State?s primary witness was characterized alternatively as ?intense?
or ?interesting.? However, they all testi?ed that they took their duty very seriously and that Rivera?s
testimony was false because he was not emotionally equipped to accept his verdict. During this
proceeding, other areas of concern were discovered. It was learned that Juror Lisa Mousner had
conducted other research during the evening break after the ?rst day of voir dire. This research had

occurred prior to her being selected for questioning, but after she had been instructed not to do any

 

He was tried for bribery, conspiracy to commit bribery, bid tampering, and of?cial misconduct. Another count,
unlawful campaign contributions, was severed for purposes of trial.

research on the case. In addition to her research on the potential sentence facing the Defendant, she had
also looked into the de?nition of bribery and the number of jurors who would actually serve on the jury.

The ?rst question before the Court is whether there were premature deliberations. If there were,
then the State must rebut the presumption of prejudice.

If the defense proves that deliberations or conversations took place among jurors about

the case before the case was submitted, the burden will shift to the state to rebut the

resulting presumption of prejudice. If the trial court ?nds that premature deliberations

took place, it must order a new trial, unless the state proves that the appellant was not

prejudiced by the jurors' misconduct.

Ramirez v. State, 922 So. 2d 386, 390 (Fla. DCA 2006) (footnotes omitted) (emphasis added).
?Premature deliberations? refers to discussions in which jurors have expressed opinions regarding a
defendant's guilt before the close of the evidence.? Dowd v. State, 227 So. 3d 194, 200 (Fla. 2d DCA
2017).

Having reviewed the testimony of each of the eight jurors, it appears that Juror Rivera?s
allegation that premature deliberations occurred from the time the jurors ?rst met is not credible. Each of
the other jurors testi?ed that they took their roles very seriously and they did not personally violate any of
the Court?s instructions, nor did they observe any of the other jurors do so. The speci?c allegations of
premature deliberations are addressed below.

Insofar as the jurors had verbal or emotional reactions to certain testimony, without more, such
reactions are not deliberations and, while technically improper, are not prejudicial. In Amazon v. State,
487 So. 2d 8 (Fla. 1986), a juror commented after that a witness? testimony was ?impressive.? The
Florida Supreme Court found that the juror's ?impressive? comment did not show that the juror had
developed a premature opinion about the case.? See id. at 12. A similar discussion occurred in Johnson
v. State, 696 So. 2d 317 (Fla. 1997). Again the Supreme Court, relying on Amazon, held that similar
comments, standing alone, did not constitute premature deliberations and the comments were not
prejudicial. The Court noted,

they talked about the ?traumatic? nature of the wounds suffered by the victim. They also
talked about the good explanation given by the doctors. We ?nd that these comments are
similar to the challenged comment in Amazon. There, one juror told an alternate juror that
certain witness[?] testimony was ?impressive.? We found that, although the jurors
acted improperly, their discussion could not have conceivably in?uenced the result.
Amazon, 487 So.2d at 12. It is important to remember that the jury saw the doctor testify.
The comments at issue here were simply a reaction to that testimony. There is no
indication that any extrinsic information was imparted to the jury.

Id. at 324. Relying on Amazon and Johnson, this Court ?nds that the jurors? brief comments and

emotional reactions to Nicholas Geaney?s testimony were not prejudicial. ?While we must recognize that

the jurors' conduct in this case was improper, we must stop short of ?nding all human errors to be
prejudicial to the defendant.? Johnson, 696 So. 2d at 324.

Juror Rivera also testi?ed that Juror Mousner said that the Defendant was a lobbyist, and
therefore, not trustworthy, and that Nicholas Gainey was a ?scumbag.? She denied saying anything of the
sort. There was never any allegation or evidence that the Defendant was a lobbyist, and the only evidence
about a lobbyist referred to an alleged co?conspirator, William Dupree. Every other juror categorically
denied hearing anyone say anything about the Defendant or Nicholas Gainey being a scumbag. Juror
Rivera?s allegation was not corroborated, so this Court ?nds that he was not credible on this matter.

Even, assuming arguendo that Juror Mousner did make some comment to Juror Rivera about the
Defendant, this would still not constitute misconduct. In Sheppard v. State, 151 So. 3d 1154, 1172 (Fla.
2014), an alternate juror gave her opinion of the defendant?s guilt to another juror prior to the close of the
evidence. Juror Rivera testi?ed that Juror Mousner informed him what a lobbyist did, and based upon her
de?nition, he inferred that she felt all lobbyists should be in jail. This is simply not suf?cient to establish
premature deliberations. One juror?s unreciprocated comment to another, which no other juror overheard,
is not properly deemed premature deliberation. Id. at 1173.

There were also indications that Juror Mousner brought outside procedural knowledge to the
jurors. Speci?cally, she advised that two of the eight selected jurors would be alternates and would not be
expected to deliberate. She also advised that the Defendant would be entitled to a pre-sentence
investigation before being sentenced. While any research on these procedural questions was improper,
there is no possibility that it had any effect on the verdict. In Johnson, jurors prematurely discussed who
would be the foreperson. The Florida Supreme Court held that ?[s]uch discussion was improper.
Certainly, though, it goes to no issue in the case. It therefore could not have in?uenced the result. We ?nd
that the defendant was not prejudiced by this conversation.? Johnson, 696 So. 2d at 324 (footnote
omitted). A similar occurrence happened in Dowd, and the Second District held, ?the allegation that
jurors prematurely discussed who would be foreman did not go to any issue in the case and did not
demonstrate prejudice.? Dowd, 227 So. 3d at 199.

Even though this Court ?nds that the jurors did not engage in premature deliberations, that does
not end this Court?s analysis of the Defendant?s motion for new trial. There was an admitted instance of
misconduct on the part of Juror Mousner. Juror Rivera testi?ed that he was concerned that the Defendant
would face ?fty years in prison, but Juror Mousner advised that he would only face between ?ve and ten
years if convicted. Juror Mousner also testi?ed that she looked up the meaning of bribery during the ?rst
evening?s recess, before she had been called up for questioning or selected to serve, but while voir dire
was ongoing. The jurors had previously been instructed not to do any research into the facts of the case

or the applicable law, so this research was clearly imprOper. Juror Mousner was evasive about whether

she conveyed the knowledge discovered during her unauthorized research to the other jurors, but she did
concede that she may have done so. Juror Lawrence corroborated Juror Rivera?s testimony that Juror
Mousner had advised thejury of the applicable penalty. Therefore, this is a case of juror misconduct,
which is presumptively prejudicial unless rebutted by the State. See State v. Hamilton, 574 So. 2d 124
(Fla. 1991).

The question, then, is whether the State has shown that this error was harmless. This Court
?[may] not question jurors about whether they were in?uenced by speculation regarding his potential
sentence. The law does not permit inquiry into the ?emotions, mental processes, or mistaken beliefs of
jurors?? Dowd, 227 So. 3d at 199. Therefore, this Court cannot speculate as to what effect, if any, the
extrinsic information introduced by Juror Mousner?s misconduct had on the verdict.2 With that limitation,
this Court must determine whether the State has shown that there is no reasonable possibility that the
improper information conveyed to the jurors affected their verdict. Hamilton, 574 So. 2d at 130.

Juror Mousner?s research on the de?nition of bribery and its potential sentence must be deemed
to be prejudicial. Juror Mousner admitted that she looked up the de?nition, but there was no testimony
about what she found. The de?nition of bribery was the central issue in two of the charged counts and
any possibility that a juror or the jurors collectively relied upon an incorrect de?nition of that term must
be deemed to be prejudicial. The primary problem with this type of ?research? is that

[t]he trial court is the only source from which the jurors may properly obtain the law or

de?nition of legal terms applicable to the issue being resolved by them. If members of the

jury are permitted access to and use of an unabridged dictionary, a legal dictionary, or

Words and Phrases, they may proceed to torture the words in the court's charge from their

true meaning.
Grissinger v. Griffin, 186 So. 2d 58, 59 (Fla. 4th DCA 1966). In other words, a juror?s research into other
sources may permit the jury to substitute its de?nitions in place of the court?s instructions. This point was
illustrated in apanes v. State, 43 So. 3d 159 (Fla. 4th DCA 2010), where a juror looked up the term

?prudent? in a dictionary during deliberations.

The fact that the foreperson utilized the smartphone to look up the de?nition of the word
during a break and later shared his recollection of the definition with other jurors during
deliberations is no less a juror misconduct than if the foreperson physically brought the
smartphone into the jury room and read the de?nition therefrom.
Id. at 162. This can be contrasted with Hamilton, where unauthorized car magazines, unrelated to the
issues at trial, were discovered in the jury room. That court held that ?the unauthorized materials in

question?wautomobile magazines?clearly were irrelevant both to the legal and factual issues of this case.

Their potential to prejudice the case was slight or nonexisten Hamilton, 574 So. 2d at 130. Here, the

 

2 This Court did not inquire about matters that inhered in the verdict, but the jurors did, on occasion, delve into
such matters when answering the Court?s questions.

possibility of prejudice to the Defendant from a juror or jurors potentially relying on an incorrect
definition of the key term at trial cannot be overcome. See Grissinger; apanes.

This Court ?nds that the Defendant is entitled to a new trial on all counts as a result of juror
misconduct, which is presumed prejudicial. The State has failed to meet its burden to demonstrate that

there is no reasonable possibility that the juror misconduct affected the verdict.

ORDERED AND ADJUDGED:

1. The Defendant?s Motion for New Trial Based upon Juror Misconduct is hereby granted. The
judgments entered on October 31, 2017 are vacated.

2. The matter is set for docket sounding on the 15% of April 2018 at 9:00 am. in Courtroom
5C before this Court. The Court will schedule a status conference prior to the docket
sounding date

3. The Defendant is entitled to be released on bond in the same amounts and under the same

conditions as previously ordered.

  
     

DONE AND ORDERED in chambers at Sanford, 1111016 ounty ilorida this day of

March, 2018.

 

ALVA, Circuit Judge
Copies furnished this 31 day of March, 2018 to:

Laura Moody, Esquire

Of?ce of the State Attorney

2725 Judge Fran Jamieson Way, Building 
Viera, FL 32940

Warren W. Lindsey, Esquire
Lindsey Ferry, P.A.

Post Of?ce Box 505

Winter Park, FL 32790

0.51 1113 (QM LU

JUDICIAL Ks