Merchant v. State

Third District Court of Appeal
State of Florida

Opinion filed April 6, 2016.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D13-3119
Lower Tribunal No. 13-7057
________________

Dwaine Merchant,
Appellant,

vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler
Mendez, Judge.

Andrew Paul Kawel, for appellant.

Pamela Jo Bondi, Attorney General, and Jay Silver, Assistant Attorney
General, for appellee.

Before EMAS, FERNANDEZ and SCALES, JJ.

EMAS, J.
 INTRODUCTION

Appellant, Dwaine Merchant (“Merchant”), appeals from a final judgment of

conviction and sentence for first-degree murder following a retrial. Merchant

contends that the trial court violated his double jeopardy rights by declaring a

mistrial in his first trial, without Merchant’s consent and in the absence of manifest

necessity, thus barring a retrial. We agree, and for the reasons that follow, we

vacate the judgment and sentence, and reverse and remand this cause with

instructions to enter an order discharging Merchant on Count One of the

indictment.

FACTS

The State indicted Merchant for first-degree murder (Count One) and

attempted first-degree murder (Count Two). The first trial began in August 2013.

The jury venire was comprised of 50 potential jurors, including both Kira Criado

(“Kira”) and Kevin Criado (“Kevin”). At the commencement of the jury selection

process, the trial court introduced the court staff, the attorneys, and the defendant.

The attorneys were then asked to read to the jury venire a list of potential

witnesses, to acquaint the jurors with the names of all persons who might testify at

trial. The attorneys then read a list containing the names of eighteen witnesses

(and, where appropriate, the police agency the witness worked for), after which the

court stated:

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 Now you have met people here. You’ve heard names. Perhaps
you’ve looked around the room. Does anyone recognize anyone else
or think they know anyone or recognize any of the names? If so, just
raise your hand.
One juror raised his hand and indicated that he might know one of the

potential witnesses whose name was read. The court questioned the prospective

juror to determine how the juror might know this witness, after which the court

told the entire venire:

Now, when we ask some questions, you may not have an instant
recollection. But when you go outside and you look around and you
see who some of the other potential jurors are, you may realize, oh, I
know this person or I’ve seen this person or I live by this person or I
saw this person in the grocery or I’m friends with this person. Let us
know. Let us know if that happens and that happens a lot, actually.

And, also, as you hear people speak, sometimes you think you might,
you know, recognize them or you’ve heard the voice before.

So, keep us informed if you recognize any of us or anyone else or the
potential jurors.

The record does not reflect that Kira or Kevin raised their hand or indicated

that they knew each other.

Kira and Kevin’s written answers to juror questionnaires indicated they have

the same surname (Criado), are two years apart in age (19 and 21, respectively),

live in Kendall, have lived in Miami-Dade County for their entire lives, have no

children, and have an aunt who is an attorney.

During jury selection, the State questioned Kira, referring to her as Ms.

Criado. Noting that Kira indicated on her questionnaire that her aunt is an

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attorney, the State asked what type of law her aunt practiced. Kira responded that

her aunt is a domestic violence prosecutor.

Thereafter, the State questioned Kevin, referring to him as Mr. Criado. The

State elicited that Kevin lived with his parents in Kendall, had not graduated from

high school or college, and was unemployed. The State asked: “Do you know

[what] type of law you– I think we already asked this; what type of law your aunt

practices?” Kevin responded that his aunt is a domestic violence prosecutor.

At no time during jury selection did the State, the defense or the trial judge

ask Kira or Kevin whether they were related in any way. The parties accepted Kira

as a juror, and subsequently accepted Kevin as one of three alternate jurors. The

trial court swore the jury and, before releasing them for the evening, reminded

them not to communicate with anyone about the case or the proceedings.

The next morning, before opening statements, the court confirmed the

following: no juror had discussed the case with anyone; no one had tried to speak

with any juror about the case; no juror had spoken with another juror about the

case; and no juror had conducted independent research. When asked, all jurors

answered “no” to these questions. The trial court delivered this same instruction to

the jury before each lunch break and evening recess, and began the next day’s

proceedings by confirming that each juror had followed this instruction.

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 At the close of the evidence, the court instructed the jury and then sent the

jury (which included Kira) to the jury room to begin deliberations. The court

subsequently excused the alternate jurors (including Kevin). During deliberations,

the jury sent out a note indicating it was deadlocked. The parties and the trial court

agreed to advise the jury to continue deliberating. The jury then sent a second note

indicating it had reached a result on Count Two, but remained deadlocked on

Count One. After a discussion with the State and defense, the court again

instructed the jury to continue its deliberations.

After the jury deliberated for three and a half hours, the court reconvened to

notify the parties that the jury sent a third note indicating it was deadlocked. At

that time, the court also raised the following issue:

[Court]: Ladies and gentlemen, besides this note, another matter has
just been brought to my attention. I was advised that one of our
alternates, Mr. [Kevin] Criado, has indicated to Michael [the bailiff]
because he has been sitting out there for whatever reason, that he is
the brother of one of our jurors Ms. Kira Criado. They did not advise
this Court because I asked in the beginning, “Does anyone know
someone else on the jury?” And no one said anyone. Many times I
have had potential jurors with the same last name so that is why we
ask the question. They have not disclosed that this is a huge problem.
If you give me your thoughts, I am going to tell you what I need to do
at this point. I don’t think I have an alternative.

[Prosecutor]: I don’t either judge.

[Court]: On both counts, this Court is going to declare a mistrial. I am
going to retry the case. No option. We can make an inquiry.

[Defense Counsel]: How did they end up on the same panel?

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 [Court]: They did. That is why we ask the question. I know I asked the
questions, “Do you know each other?” “Do you recognize anyone?”

[Prosecutor]: It was asked numerous times and to know they are now
–

[Court]: And now certainly, I could not ever consider sending them
home for the night.

[Prosecutor]: No.

[Court]: I am saying all this because we don’t even know during the
course of last week whether or not they had communications. They
could sit here and tell me they didn’t. I can make a presumption they
are brother and sister, and I found out they have driven back and forth
together, they must be talking about this. I want to temper my
comments and I don’t want to say something that is non-judicial.

[Prosecutor]: I don’t think there is any way to say that it doesn’t reach
the level of manifest [injustice], that we have jurors who affirmatively
misadvised of their relationship.

[Court]: This is what I am going to do. I am declaring a mistrial. I am
resetting the case for trial immediately. I know this is very difficult
for everyone, but I have no options…. What I am going to do is bring
in all the jurors and I am just going to advise them that due to certain
circumstances, the Court will declare a mistrial. I will make my
speech and give them their certificate and I will ask Ms. Criado to stay
in her seat and I will bring in Mr. Criado and have them both in here,
and then we will have a conversation.

This transcript excerpt represents the entirety of the discussion that led to the

court’s declaration of a mistrial. After declaring a mistrial, the jury was brought

back into the courtroom. The court discharged the jury, asked Kira to remain,

brought Kevin into the courtroom, and addressed them both. The court advised

6
them it declared a mistrial upon learning they were brother and sister and

acknowledged that although it asked the jury venire whether they knew other

members of the venire, it was giving them the benefit of the doubt that they

possibly didn’t hear the questions. The court further told the siblings that their

type of relationship is inherently conflicting, highlighting the “fact” that they rode

to the courthouse together. Neither Kira nor Kevin was provided an opportunity to

make any statement, answer any questions, or respond to the trial court’s remarks.

Thereafter, the case was reset for trial. Merchant filed a motion to dismiss

the indictment, contending that he did not consent to the mistrial, that there was no

manifest necessity for the trial court’s sua sponte declaration of a mistrial, and that

retrial was therefore barred by double jeopardy.

In opposition, the State contended that by not affirmatively objecting to the

mistrial, and in absence of demonstrable bad faith by the State, Merchant had

essentially consented to the mistrial. The State did not agree with the defense’s

characterization that the court declared a mistrial sua sponte.

The trial court denied Merchant’s motion, explaining:

I think the ultimate question becomes whether there is an inherent
taint where siblings who live together, who are coming back and forth
to the courthouse, who wind up without anyone knowing or realizing
it sitting as same jurors on a case, whether it is just, there is just
inherent common sense presumptions. I mean you tell jurors don’t
talk about the case, don’t talk about the case, and you ask them every
single – I ask them every single day the same question and to respond

7
 in the negative I’m not sure I think was somewhat disingenuous just
from common sense.

And so it’s sadly the way I viewed it was somewhat of a nullity from
the commencement and it wasted a lot of time and energy. Kind of
like a dry run. So it was very frustrating that way.

[DEFENSE]: Yes.

THE COURT: And it was something that certainly I’ve learned from
it to be even more meticulous during jury selection. That has never
happened in all the cases that I’ve tried and it was very unusual. And
so for those reasons I am respectfully denying your request to
interview the jurors as well as your motion to dismiss the indictment.
But it is well preserved.

The second jury acquitted Merchant on Count Two but convicted him of

Count One of the indictment, first-degree murder. The trial court sentenced

Merchant to life imprisonment. This appeal followed.

ANALYSIS

We review this claim under an abuse of discretion standard. England v.

State, 940 So. 2d 389 (Fla. 2006).

The protection of an accused against being twice put in jeopardy for
the same offense is a right guaranteed by both the Fifth Amendment to
the United States Constitution and article I, section 9 of the Florida
Constitution. Jeopardy attaches in a criminal proceeding when the
jury is impaneled and sworn.

Thomason v. State, 620 So. 2d 1234 (Fla. 1993).

Once a jury is empaneled, the accused in a case has a right to be tried by that

particular tribunal. Id. at 1237. This right, however, is not absolute:

8
 For example, when the defendant requests declaration of a mistrial,
double jeopardy usually is not a bar to reprosecution. Oregon v.
Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416
(1982). Even in cases where a mistrial is declared over the objection
of the defendant, the double jeopardy clause does not guarantee that a
defendant cannot be retried. The right to have a trial concluded by a
particular tribunal sometimes must give way to the public interest in
allowing the State one “full and fair opportunity” to present evidence
to an impartial jury. Arizona v. Washington, 434 U.S. 497, 505, 98
S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). However, absent
circumstances thwarting the State's one full and fair opportunity to
present its case, the right of a defendant to completion of his or her
trial by a particular tribunal should control.

Thomason, 620 So. 2d at 1237.

As noted by the United States Supreme Court in United States v. Dinitz, 424

U.S. 600 (1976), and reaffirmed by the Florida Supreme Court in Thomason,

The distinction between mistrials declared by the court
sua sponte and mistrials granted at the defendant's
request or with his consent is wholly consistent with the
protections of the Double Jeopardy Clause. Even when
judicial or prosecutorial error prejudices a defendant's
prospects of securing an acquittal, he may nonetheless
desire “to go to the first jury and, perhaps, end the
dispute then and there with an acquittal.”

Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608.)

Doubt about the appropriateness of a mistrial is resolved in favor of the

defendant, and the State “must demonstrate ‘manifest necessity’ for the mistrial, a

requirement that has been part of this country’s jurisprudence since 1824.”

Thomason, 620 So. 2d at 1237 (internal citations omitted). Manifest necessity

requires that there be a “manifestly urgent and absolute necessity” for declaring a

9
mistrial. Id. at 1239 (quoting State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956)).

Moreover, manifest necessity requires that the trial court evaluate and discuss

available alternatives prior to declaring a mistrial where the defendant does not

consent to such an action. “Manifest necessity for declaring a mistrial without the

defendant’s concurrence may be demonstrated only if the trial court has considered

and rejected all possible alternatives.” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d

DCA 2001). See also Thomason, 620 So. 2d at 1238 (observing that manifest

necessity requires “trial judges, at the very least, to evaluate and discuss available

alternatives before declaring a mistrial over the objection of the defendant.”)

The State contended below, and on appeal, that Merchant should be deemed

to have “consented” to the mistrial because neither he nor his counsel voiced an

objection, thus waiving his right to later assert a double jeopardy bar to retrial.

However, this position is without merit, as the law on this point is well-established:

a defendant’s mere failure to object to a declaration of mistrial is not tantamount to

consent. See State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence

of the defendant on trial for a crime or his failure to object” does not constitute

consent to the trial court’s declaration of a mistrial); McLendon v. State, 74 So. 2d

656, 657 (Fla. 1954)(finding “the defense of former jeopardy is not available to a

defendant where mistrial is granted with his consent, approval or upon his motion

or is granted where the circumstances show a manifest, urgent or absolute

10
necessity in the interest of justice.”); Allen v. State, 41 So. 593 (Fla. 1906)

(holding that the defendant’s “silence or failure to object or protest against the

discharge of the jury did not constitute a consent or a waiver of his constitutional

right” of double jeopardy); Feria v. Spencer, 616 So. 2d 84 (Fla. 3d DCA 1993)

(holding a “defendant’s silence when the trial court granted the mistrial cannot be

construed as consent.”); Spaziano v. State, 429 So. 2d 1344, 1345 (Fla. 2d DCA

1983) (holding “[a] defendant’s silence or his failure to object or protest against an

illegal discharge of the jury before a verdict, does not constitute a consent, and is

not a waiver of the constitutional prohibition against a subsequent trial for the same

offense if the jury has been improperly discharged.”)

Thus, absent the defendant’s consent to the declaration of a mistrial, retrial is

barred by double jeopardy unless the State meets its “heavy burden to show that

the mistrial was justified by manifest necessity.” Spaziano, 429 So. 2d at 1346.

The record in the instant case reveals no manifest necessity for declaring a mistrial

and further reveals that the trial court failed to evaluate, discuss or consider

available alternatives before declaring a mistrial and discharging the jury.1

1 A trial court must evaluate and discuss available alternatives before declaring a
mistrial even where the defendant does not expressly object, but merely remains
silent. See, e.g., Lebron v. State, 799 So. 2d 997 (Fla. 2001) (applying rule where
defendant did not object to trial court’s declaration of a mistrial); C.A.K. v. State,
661 So. 2d 365 (Fla. 2d DCA 1995) (same). Whether a defendant expressly
objects, or merely remains silent in the face of a trial court’s decision to declare a
mistrial, the record must establish the requisite “manifest necessity” to overcome a
double jeopardy bar to retrial. The trial court conducted no inquiry of Kira or

11
 The trial court’s decision to declare a mistrial, without the consent of the

defendant, appears to have resulted from a series of assumptions and inferences,

rather than from competent record evidence. Even if we were to accept the

assumption that Kira and Kevin are brother and sister, this surely did not—without

more—necessitate a mistrial. There is nothing in the record to indicate that Kira

and Kevin heard the trial court’s request, made to the entire venire at the

commencement of the jury selection process, for jurors to notify the court if any

prospective jurors knew each other.2 Similarly, there is no evidence in the record

that Kira and Kevin discussed the testimony or evidence with each other, or

otherwise violated the trial court’s daily admonitions to the jury.3 To the contrary,

Kevin and failed to inquire of Merchant’s counsel whether he consented to a
mistrial. We further observe that the prosecutor failed to alert the trial court to the
potential double jeopardy bar should a mistrial be declared without Merchant’s
consent and without a record evidencing a manifest necessity for, and
consideration of alternatives to, the declaration of a mistrial.
2 As described at *2-3 supra, this request was but a minor part of a lengthy
narrative made by the court after the attorneys had read to the fifty venirepersons a
list of eighteen names of potential witnesses. The trial court asked whether any of
the prospective jurors knew, or recognized the names of, any of the potential
witnesses. The court told the jurors that even if they did not recognize the witness
names that were read aloud, they might realize at some point during the
proceedings that they in fact know one of the witnesses and that if this occurs, the
jurors should notify the court. During this narrative, which focused almost
exclusively on whether any juror knew any of the potential witnesses, the court
asked the jurors to notify the court if any prospective juror knew any other
prospective juror.
3In fact, the trial court itself acknowledged that it had no reason to believe that
Kira and Kevin discussed the case with each other, and the court even told Kira

12
the trial court began each day of the trial by confirming that each of the jurors

followed the court’s instruction not to discuss the case with each other or anyone

else. The trial court also ended each day (and prefaced every recess) by reminding

jurors of this instruction.

Thus, the only information the trial court had before it was a statement from

the bailiff that Kira and Kevin were siblings and that Kevin (having been

discharged as an alternate juror) was waiting outside the courtroom to drive Kira

home. This alone was hardly sufficient to warrant a mistrial. However, the court

did not question the bailiff in open court or permit the attorneys to do so. The

court did not bring Kevin Criado into the courtroom to question him or permit the

attorneys to do so. The court did not bring Kira Criado into the courtroom to

question her or permit the attorneys to do so. The court acknowledged the option

of conducting an inquiry, but failed to engage in one.4 And although the court

and Kevin that it presumed neither of them violated the court’s instruction.
4 After declaring a mistrial and discharging the jury, the trial court brought Kira
and Kevin into the courtroom to advise them that the mistrial was required because
they had failed, during jury selection, to disclose their sibling relationship. The
trial court never gave them the opportunity to address whether they were brother
and sister; whether they had heard the trial court’s request at the beginning of jury
selection that they identify anyone (including other potential jurors) whom they
may know; whether they drove to and from court together; or whether they had
discussed the case with each other during the trial proceedings. The record wholly
fails to support any of these factual “determinations” other than the out-of-court
and unconfirmed statement made by Kevin (to the bailiff) that he and Kira were
brother and sister.

13
indicated it was going to solicit the parties’ input before making a decision, it did

not actually do so. The court did not ask the defense for its suggestions or inquire

whether the defendant agreed to a mistrial. The court did not solicit or receive any

input from the State or defense regarding any possible alternatives to a mistrial.

Instead, the court simply declared a mistrial, concluding it had “no option.”

The trial court could have brought the bailiff into court to state on the record,

and in the presence of the State, Defendant and his counsel, what he had been told

by Kevin; brought Kevin into the courtroom to verify that he and Kira are siblings,

and to answer questions regarding whether and why he failed to disclose this

relationship during jury selection; brought Kira into the courtroom (out of the

presence of the other jurors) to answer questions regarding whether and why she

failed to disclose her relationship with Kevin during jury selection; questioned

Kevin and Kira individually regarding whether they violated the trial court’s

instruction not to discuss the evidence and testimony with each other; or

determined as a preliminary matter and based upon the answers provided during

the questioning, whether any harmful conduct had in fact taken place and whether

Kira could continue to serve as a juror in the case.5 If such an inquiry affirmatively

5 Events which arose earlier during the course of this trial establish that the trial
court was aware of the propriety of such an inquiry: During the presentation of
testimony, Juror Reddick informed the bailiff that Reddick recognized the last
testifying witness as someone she had worked with. The judge brought Juror
Reddick into the courtroom for questioning outside the presence of the other jurors.
The court began by verifying with Juror Reddick that what the bailiff had reported

14
established that misconduct had occurred, the trial court could have then requested

the State and defense to suggest available alternatives to a mistrial, or in the

absence of any alternatives, to ascertain whether Merchant would consent to a

mistrial.

Instead, the trial court presumed that irreparable harm had occurred, and that

a mistrial was a manifest necessity. When the court advised the parties it was

declaring a mistrial, it stated simply:

[W]e don’t even know during the course of last week whether or not
[Kira and Kevin] had communications. They could sit here and tell
me they didn’t. I can make a presumption they are brother and sister,
and I found out they have driven back and forth together, they must be
talking about this.

The court’s conclusions were based almost entirely on assumption, inference

and speculation. Nowhere are these conclusions confirmed on the record,

particularly the central assumptions that Kira and Kevin are siblings and that they

to the court was true. The court then posed a series of questions to Juror Reddick
regarding how she knew the witness, the nature and extent of the relationship, and
whether this would impact her ability to continue serving as a juror in the case.
Thereafter, the court discussed the issue with counsel. After concluding that the
issue could not be cured, and with the consent of the parties, the court excused the
juror and replaced her with an alternate. Although concededly the issue regarding
Kira is complicated by the fact that she and the other jurors had already begun their
deliberations, see Williams v. State, 792 So. 2d 1207 (Fla. 2001), this did not
relieve the trial court of its obligation to evaluate and discuss available alternatives
before declaring a mistrial, or the requirement that the record establish the
existence of a manifest necessity before a mistrial is declared without the
defendant’s consent.

15
discussed the evidence or testimony during the course of the trial. The trial court

erred in failing to conduct any inquiry and, by relying instead on assumption,

inference and speculation, abused its discretion in concluding that a mistrial was

justified by manifest necessity. Baez v. State, 699 So. 2d 305 (Fla. 3d DCA 1997),

is on point. In that case, the jury sent a note to the court during deliberations. The

note stated: “One of the jurors has admitted to having a couple of beers at lunch. Is

he qualified to help make a decision?” Solely on the basis of this note, and without

further inquiry of any jury member, the trial court declared the juror incompetent

to proceed and, after the defendant would not consent to continuing the

deliberations with a five-person jury,6 the judge declared a mistrial over

defendant’s objection. On a petition for writ of prohibition, we held that double

jeopardy prohibited defendant’s retrial:

It is established that the court may appropriately declare a mistrial on
its own or a prosecution motion only if, after an assiduous inquiry into
the possibility of another course of action, there is a “manifest
necessity” to do so. That condition was obviously not satisfied in the
county court if only because, without any inquiry into the precise

6 We note this was one possible alternative which the trial court in the instant case
failed to consider, explore or discuss with the parties. See, e.g., Blair v. State, 698
So. 2d 1210 (Fla. 1997) (holding that a defendant may, upon a personal waiver and
proper colloquy, waive his constitutional right to a six-person jury and agree to be
tried by a five-person jury); Evans v. State, 939 So. 2d 168 (Fla. 4th DCA 2006)
(conviction affirmed where, after jury deliberations began, one of the jurors
indicated she knew witness who testified during trial; court gave defendant option
of continuing the trial with five jurors or granting a mistrial, and following a court
colloquy defendant made knowing and voluntary waiver of right to six-person jury
and agreed to allow deliberations to continue with five-person jury).

16
 condition of the allegedly impaired juror, there could be no showing
that he was not competent to deliberate with the consequence that he
need not have been excused at all.

Id. at 306 (internal citations omitted).

In the instant case, there was no inquiry, much less the “assiduous inquiry”

alluded to in Baez. There was no record evidence to show that Kira or Kevin had

engaged in any misconduct that warranted the declaration of a mistrial upon

manifest necessity. In fact, the record contradicts the most critical assumption

made by the trial court—that Kira and Kevin violated the trial court’s instructions

by discussing the case with each other during the trial. The record reveals that

Kira and Kevin (and the rest of the jurors) uniformly responded “no” to each of the

court’s daily inquiries regarding whether the jurors spoke about the case with each

other or with anyone else. Further, the trial court, after discharging the rest of the

jurors, brought Kira and Kevin into the courtroom to explain that it had declared a

mistrial. At that time, the trial court told Kira and Kevin: “And while I had no

reason to think that you disregarded any of the Court’s instructions as far as not

communicating about the case, I have no reason to think that and I will not think

that.”

With regard to whether Kira and Kevin failed to disclose their relationship

during jury selection, the trial court itself recognized that they might not have

17
heard the question when posed by the trial court, acknowledging that “perhaps you

did not hear [that question] and I will give you the benefit of the doubt.”

There is simply nothing in the record to support the trial court’s apparent

conclusions that Kira and Kevin spoke about the case while serving as jurors and

that, during jury selection, Kira and Kevin failed to disclose their sibling

relationship.

CONCLUSION

The trial court’s failure to make an inquiry, develop a proper record, and

consider alternatives before declaring a mistrial forecloses a conclusion that a

mistrial was even warranted, let alone one supported by manifest necessity. Given

that the mistrial was declared without the defendant’s consent, and in the absence

of manifest necessity, double jeopardy precluded a retrial.7 We are therefore

7 We reject the State’s argument that a mistrial was proper under De La Rosa v.
Zequeira, 659 So. 2d 239 (Fla. 1995). Even if the De La Rosa analysis was
applicable to this circumstance (a proposition we consider dubious), there is no
record evidence establishing that Kira or Kevin failed to disclose information
during jury selection; that such information was relevant and material to their jury
service in the case; or that any failure to disclose the information was not
attributable to the parties’ lack of diligence. Id. at 241. For example, under De La
Rosa, materiality is shown only where “the omission [of information] prevented
counsel from making an informed judgment—which would in all likelihood have
resulted in a peremptory challenge.” Id. at 242. There is no evidence to support
any finding of materiality, as the State never asserted, much less sought to
establish, that it would have challenged either Kira or Kevin had it known of a
sibling relationship. The record is also insufficient to determine whether any
failure to disclose was attributable to counsel’s lack of diligence. Neither counsel
nor the court questioned whether these jurors were related, even though Kira and
Kevin shared a relatively uncommon surname (“Criado”), were two years apart in

18
compelled to vacate the judgment and sentence on Count One of the Indictment,

and remand with instructions to enter an order discharging Defendant as to Count

One. See, e.g., Thomason, 620 So. 2d at 1240 (reversing conviction and ordering

discharge of defendant where mistrial declared without manifest necessity and

without defendant’s consent); Chapinoff v. State, 2 So. 3d 1080 (Fla. 3d DCA

2009) (same); Dawson v. State, 979 So. 2d 1099 (Fla. 3d DCA 2008) (same);

Feria, 616 So. 2d at 84 (issuing writ of prohibition precluding retrial of defendant).

Reversed and remanded with instructions to vacate the judgment and

sentence and enter an order discharging Merchant.

age, both lived in Kendall, and both stated that they had an aunt who was a
domestic violence prosecutor.

Generally, a facially sufficient allegation of juror misconduct under De La Rosa
will often require further inquiry to provide record evidence bearing upon the
three-pronged factors of concealment, materiality and diligence. Such a further
inquiry is typically accomplished by way of a posttrial juror interview. See, e.g.,
Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011); Pereda v. Parajon, 957 So.
2d 1194 (Fla. 3d DCA 2007); Bernal v. Lipp, 580 So. 2d 315 (Fla. 3d DCA 1991);
Bolling v. State, 61 So. 3d 419 (Fla. 1st DCA 2011); Sterling v. Feldbaum, 980 So.
2d 596 (Fla. 4th DCA 2008); Forbes v. State, 753 So. 2d 709 (Fla. 1st DCA 2000).
In the instant case, such a further inquiry could have been conducted with relative
ease, and without the countervailing privacy implications normally associated with
such a procedure, since the juror and discharged alternate juror were still present
before the court and the trial proceedings were still ongoing.

19