
    Lazarus WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 86-408.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1987.
    James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph N. D’Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from convictions in a criminal case. Appellant alleges error in the trial which he says denied him “his fundamental right to a fair and impartial trial by a fairly and impartially selected jury.”

The procedure of which the appellant complains is the requirement that he make his opening statement at trial to the entire jury venire rather than to those individuals selected and sworn to sit as jurors in the case. He says it is unfair, improper and prejudicial to require him to make his opening statements before the jury is selected because:

1. No jeopardy attaches until the jury is sworn thus it gives “the state carte blanch [sic] to make any prejudicial and outrageous statements that they want, without having to worry about the consequences. (With) no effective remedy or cure.”

2. The “potential jurors would pay little or no attention to the attorneys, perhaps hoping that they will ultimately be excused from the panel.”

3. As the converse to the second reason, above, there may be some potential juror who becomes so intrigued with the case as to lie to get selected for the jury.

4. The attorneys lack an ability to establish a rapport with the jury who will try the case.

While we agree with appellant on all accounts and urge that this procedure not be used again we cannot find in this case that reversal is required. No prejudice to this defendant in this trial has been demonstrated but the potential is so great that any reason for deviation from established procedure pales in comparison. We do not reverse cases for potential due process violations unless the ill-advised procedure is seen as a practice. Neither prejudice to this appellant nor demonstration of a continual procedural violation is extant so we affirm the convictions.

AFFIRMED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I am for an affirmance in this case because I cannot agree with the contention of defendant’s counsel that it was unfair, improper, and prejudicial for the trial judge to require counsel to make an opening statement to the entire jury venire before the particular jury to try the case was selected and sworn. I do not know why the trial judge did this but it is neither a due process violation nor a reversible procedural violation. No prejudice is shown it is only contended by defense counsel. Certainly counsel usually make opening statements after the particular jury to try the case is selected and sworn but no procedural rule or statute mandates it. Florida Rules of Criminal Procedure 3.370 through 3.430 govern the conduct of criminal trials and they do not direct that opening statement of counsel be made only after the jury is sworn. The rule is that the trial judge has discretion to direct and control the order of trial in the absence of an authoritative rule or statute. Perhaps this trial judge is concerned with the serious problem and hazards of declaring, because of improper opening statements by the prosecutor, a mistrial after the jury is sworn in a criminal case.

Too often procedural rules governing trial courts have been promulgated by committees composed of individuals with far less experience than those governed by the rules. Trial judges should be permitted more leeway in the exercise of their discretion in the conduct of trials in order to encourage them to innovate in efforts to develop improved methods and procedures.  