
    Derrick A. POWELL and Eugena Powell, Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 92-1937.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1994.
    Robert C. Gray of Alpizar & Gray, P.A., Palm Bay, for appellants.
    Donna C. Wyatt and Laura P. Kowalczyk, of Beers, Jack, Tudhope & Wyatt, P.A., Mait-land, for appellee.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

We grant appellee’s motion to rehear the cause en banc, withdraw our previous opinion and substitute this opinion.

Sometime after a verdict was rendered in favor of Derrick A. Powell and Eugena Powell (who are black) a juror came forward to complain that one of the other jurors (all of the jurors were white) had told a racial joke and yet another juror had made a racial statement. The trial judge, along with counsel for the plaintiff and the defense, interviewed that juror to see if it would be appropriate to interview the remaining jurors. After this initial interview, the trial court refused to permit further juror interviews because it found that the applicable law prohibits post-trial inquiry into the juror’s motives and influences. The Powells appeal. We affirm.

We find that the trial court’s refusal to grant additional juror interviews does not indicate that it condoned racial insensitivity, but rather reflects its commitment to follow the law announced both by our supreme court and this court. We wish to make it clear that we, just as much as the dissent, deplore the crass and intolerant comments attributed to some members of the jury, but our inquiry is not (and should not be) whether some insensitive clods were permitted to serve on the jury by trial counsel, but rather whether some juror or the jury committed some objective act which compromised the integrity of the fact-finding process as where:

[1] a juror was approached by a party, his agent or attorney; [2] that witnesses or others conversed as to the facts and merits of the cause out of court and in the presence of jurors; [3] that the verdict was determined by aggregation and average or by lot, game or chance or other artifice or improper manner.

Historically- and traditionally it has been the trial lawyer’s role and responsibility during voir dire to delve into the potential juror’s background and experiences in order to determine if the juror is likely to harbor any prejudice, bias or sympathy that might adversely affect the client’s interest. This, indeed, is where (and when) such inquiries should be made: “Do you tell or have you told racial or ethnic jokes?” If the juror answers “yes,” then the lawyer must decide whether to excuse him or her because of a fear of prejudice or, because of other considerations such as memberships in favorable organizations or contributions to favorable causes, to believe that, on balance, the juror would be beneficial to the client’s cause. If the juror answers “no,” and lies, then a new trial would be justified because of the juror’s perjury. There is no indication in this record that such inquiry ever took place. Racial, gender, ethnic, or religious insensitive statements are less likely to be made if the jury is itself composed of both genders and is multiracial, multi-ethnic and multi-religious. Cases such as State v. Neil, 457 So.2d 481 (Fla.1984), and City of Miami v. Cornett, 463 So.2d 399 (Fla. 3d DCA), cause dismissed, 469 So.2d 748 (Fla.1985), give trial lawyers additional tools to select a fair and impartial jury.

There is nothing in this record that suggests that the verdict in this case resulted from racial prejudice. The amount of damages in this case was hotly contested and, although it found no permanent injury, the jury nevertheless returned a verdict of $29,-320 which included sums for medical and wage loss as well as future medical and wage loss. But for the rearing of the ugly spectre of racial intolerance, probably no one on this court would suggest that the amount of damages awarded by the jury cannot be supported by the record. Should we set aside a verdict that appears appropriate on its face (where there is no correlation shown between the result of jury deliberation and the insensitive conduct of some of the jurors) based on an assumption that one cannot at the same time be both insensitive in speech yet fair in judgment?

While the complaining juror opines that the verdict would have been different had the plaintiff been white, her own actions and testimony place her conclusion in doubt. In explaining why she did not earlier report her concern to the court (while the trial judge could still take appropriate action), she testified:

Well, number one, some people will participate in jokes of that nature, just to kind of be a part of the gang, whatever. That one person will say something, and somebody will kind of laugh and that’s it. Kind of an, I don’t know, just trying to kind of get along or whatever. That maybe they are not that truly, really racially biased.
But it — you know, they’re just trying to kind of polite laughter or whatever. Not to cause the problem.
And when I — the only way that I could see, I mean, I thought I was going to have better instructions before any of this went on, I couldn’t talk to the Bailiff.
And for me to stand there in court and say, I think these people are bigots, kind of a big accusation to make without really knowing if that is the case or if it was just — I mean, there was a comment made about the jokes, and well, if you can’t laugh or something, you know, it’s boring and we’re sitting here listening to a lot of information. If we can’t come in here and relax a little bit, you know, what’s the problem. Or what’s the point or something, you know, its no big deal.
And I wasn’t sure if it really was, if it was really racially biased or if it was just somebody, you know, like some people will say racial or Pollock [sic] jokes or whatever and people laugh at it. And they really don’t mean anything by it.

Even after full deliberation and the rendition of a verdict had occurred, the complaining juror could not say that the verdict resulted from prejudice. Clearly, the complaining juror, along with all of the other jurors, voted for the verdict at issue in this appeal and, upon being polled, reaffirmed in public their approval of the verdict. There is no charge that any of the jurors were threatened or in any way unduly influenced to vote for this verdict. There is no indication that any vote was the result of racial prejudice— regardless of evidence of racial insensitivity on the part of some. Even the complaining witness does not state that her vote was influenced by the racial insensitivity of some of the other jurors.

We acknowledge conflict with Sanchez v. International Park Condominium Association, Inc., 563 So.2d 197 (Fla. 3d DCA 1990). We think Sanchez ignored the supreme court’s opinion in Maler. Perhaps if our supreme court grants review of this matter, it will address the following troubling questions. Is it worse to rule against someone because of prejudice or to rule in favor of someone because of prejudice? For example, in Maler, the supreme court held that prejudice (sympathy) for the child inhered in the jury verdict. If a W.C. Fields-type juror had been seated, would the prejudice against the child also inhere in the verdict? This court held in Rabun and Partners, Inc. v. Ashoka Enterprises, Inc., 604 So.2d 1284, 1286 (Fla. 5th DCA 1992), that prejudice against Patel, a rich doctor [because he did not need the money] “clearly fits within the category of prohibited inquiry into the emotions and mental processes of the jurors, matters which essentially inhere within the jury verdict.” If the jury had ruled against Patel because he was Indian, would their verdict have been, from the standpoint of a fair and impartial trial, more repugnant?

If we are to look behind jury verdicts to root out racial prejudice, should we not take similar measures to root out prejudice based on gender, ethnicity, religion (or lack thereof), sexual orientation, wealth, pity or any other classification or consideration that might influence a result not based solely on the facts and law of any given case?

We reject Judge Diamantis’s position that prejudice based on racial consideration must be treated differently because the jurors are, in effect, agents of the state requiring a “strict scrutiny” standard. This concept is contrary to the time honored practice of having jurors of our peers — not state agents.

The current law of Florida seems to be the following:

It is improper and against public policy to permit jurors to testify to motives and influences by which their deliberations were governed, [citation omitted]. To allow such an inquiry concerning the motive and influence of jurors would extend litigation to attempt to determine the imponderable issue of what, in fact, motivated and influenced each juror in arriving at his own independent judgment in reaching a verdict.

If this policy is to change, it should be changed by the supreme court.

AFFIRMED.

HARRIS, C.J., and COBB, PETERSON, GRIFFIN and THOMPSON, JJ., concur.

W. SHARP, J., dissents, with opinion.

GOSHORN, J., dissents, with opinion.

DIAMANTIS, J., dissents, with opinion in which DAUKSCH, J., concurs.

W. SHARP, Judge,

dissenting.

I respectfully dissent. Based on Singletary v. Lewis, 584 So.2d 634 (Fla. 1st DCA 1991), International Union of Operating Engineers, Local 675 v. Kinder, 573 So.2d 385 (Fla. 4th DCA 1991), appeal dismissed, 598 So.2d 76 (Fla.1992); Sanchez v. International Park Condominium Ass’n., Inc., 563 So.2d 197 (Fla. 3d DCA 1990), and Snook v. Firestone Tire & Rubber Co., 485 So.2d 496 (Fla. 5th DCA 1986), I agree with appellants that the trial judge should have granted their motion to conduct individual juror interviews to determine whether the juror misconduct as described by juror Dowding actually occurred in this case. If it did, the trial judge should have granted a new trial. See United States v. Heller, 785 F.2d 1524 (11th Cir.1986).

The record establishes that following the completion of a personal injury suit brought by Derrick Powell and his wife in which he received a modest monetary recovery, a juror (Dowding) contacted Powell’s attorney and the trial judge concerning racial jokes and statements made by the jurors in the jury room or on breaks while the trial was in progress. Powell and his wife (who sued for loss of consortium) and Powell’s primary witnesses, Leonard Johnson and his wife (who both were passengers in Powell’s car at the time he was struck by another car) are all blacks, of Jamaican descent. The defendant’s insured (the driver of the other car involved in the accident) and the jurors are white.

The trial judge held an in-court interview of Dowding, attended by attorneys for both parties. It was transcribed and is part of the record on appeal. Dowding testified that various jurors had made a number of racial jokes and statements to each other during the trial. They laughed and participated in the jokes, although when challenged by her in the jury room, they denied they meant anything by their “jokes”, or that they were, in fact, prejudiced against Powell because of his race.

For example, Dowding testified that the juror, who was later elected to be foreman of the jury, told an old “saw” of a joke: “There’s a saying in North Carolina, hit a nigger and get ten points, hit him when he’s moving, get fifteen.” The alternate female juror supposed that because the Powells had their grandchildren living with them, their children were “probably drug dealers. And, everybody was like, yeah, yeah. And they were laughing.”

Two men on the jury laughed about Johnson’s testimony at the trial. They pointed to the book Dowding was carrying (Through a Window by Jane Goodall) which had a picture of chimpanzees on the cover, and made some sort of reference to Johnson. One said: “[a]nd Mr. Johnson got out of the car and laid down on the pavement.” They went into hysterics.

Another juror, who had worked for IBM, told the others that the turnover rate for black employees with the company was twenty-five percent but only two percent for whites. He concluded blacks “didn’t work for us as well.” Powell’s loss of wages and earning power were issues in this case. Another concluded Powell “just wants to retire.”

The trial judge denied the appellants’ motion to interview the rest of the jurors in this case. He stated his reasons on the record: The jurors’ motives and opinions why they reached their verdict cannot be the subject of inquiry; and, there was no showing the jurors considered evidence outside the record, or agreed to violate their oaths in some way. He concluded that Dowding’s testimony afforded no basis upon which to award a new trial, even assuming the testimony of the other jurors supported her version of what had transpired. I disagree.

In Baptist Hospital of Miami, Inc. v. Moler, 579 So.2d 97 (Fla.1991), the Florida Supreme Court said no jury interview procedure should be undertaken unless the sworn factual allegations urged as a basis, if found to be true, would require a trial court to order a new trial, using the standard pronounced in State v. Hamilton, 574 So.2d 124 (Fla.1991). In the Baptist Hospital case, the inquiry revealed only that some of the jurors were influenced by their sympathy for the brain-damaged child in the case, and their assumption that the hospital (defendant in the medical malpractice case) had insurance. Mere juror opinion as to why they reached the verdict rendered in a case is not a permissible field of inquiry. As the court explained, such subjective matters “inhere” in the joint decision-making process engaged in by a jury, and there is a strong public policy against allowing litigants to discover and use such matters to overturn a verdict.

But, the rule is otherwise for objective acts committed by or in the presence of the jury. In Hamilton, defense counsel argued two car magazines were present in the jury room while the jury was there, and because one or more advertisements depicted a beautiful blond model, the jury may have been “distracted.” The court said this was insufficient to have merited juror interviews, not because such matters were subjective or inhered in the verdict, but because the magazines in the jury room were irrelevant to the legal and fact issues in the case, and would have had slight, if any, potential to prejudice the outcome of the case. However, the court said overt acts, extrinsic and objective matters, which potentially might prejudice the jury, can be inquired into, and proof of whether or not the jurors actually were influenced by these happenings is not relevant.

If Dowding’s testimony is accepted as true, the jurors in this case engaged in making racial jokes, slurs, and stereotyping comments in a ease involving black plaintiffs and black witnesses and the jury’s damage and apportionment of fault determinations could well have been influenced by racial prejudice. In Singletary v. Lewis, the jury returned a defense verdict for a white doctor in a medical malpractice case where the plaintiffs were black. The appellate court ruled that the trial court erred in not ordering juror interviews when a showing was made by juror Lumpkin that the jurors made racial comments and slurs in the jury room.

In Singletary, one juror allegedly said: “They ought to sewed her up. She was a fool for having so many babies.” Another asked: “Who talked her (the plaintiff) into suing a doctor?” Some of the jurors supposedly said they preferred that the plaintiff get help from welfare rather than recover damages from the doctor. The court held that if such juror misconduct in the jury room was proven, a new trial would be appropriate.

Similarly, in Sanchez, two derogatory comments made by one juror in the jury room about Cubans in a slip and fall case involving a Cuban plaintiff was held to be sufficient misconduct to require a new trial. There, the trial judge conducted juror interviews but failed to order a new trial. It was established that one juror (who was later elected to be the foreman) said to the others: “Cubans as a whole, whenever anything like this happens, they yell sue, sue, sue or want to sue at a drop of a hat, something like that.” He later said Cubans were “ambulance chasers.”

The appellate court in Sanchez explained that the trial court mistakenly relied on the juror’s representations to the court that although the derogatory remarks had been made, they had not been influenced by them. Whether or not jurors were, in fact, prejudiced or influenced “inheres” in the verdict and is not a proper area of inquiry. The objective fact that such remarks and slurs were made by one juror was sufficient to merit a new trial in Sanchez. The court said:

Jury service is a collegial process. It may be that the other jurors were not affected by the remark, made by juror six. Juror six was, however, an active participant in the deliberative process, and the verdict included his input. The jury’s verdict included not only a determination of liability, but also the amount of, damages and percentages of comparative fault. The plaintiff was entitled to have her case heard by an impartial jury. We therefore reverse the final judgment and remand for a new trial.

Sanchez at 199.

Both Sanchez and Singletary adopted for their districts the rationale set out in Heller. In that case, a Jewish defendant was convicted of tax evasion by a jury that engaged in anti-Semitic jokes and slurs. One juror told another person he was on a jury which was trying a Jewish defendant, and he said: “Let’s hang him.” Another commented on the number of the defendant’s witnesses who had Jewish surnames, and the jurors broke into “gales of laughter.” Another laughed that a Rabbi witness had come to “bless” the defendant. Others evidenced prejudice by enjoying the defendant’s discomfort in the courtroom during presentation of the prosecutor’s case.

The trial judge in Heller conducted juror interviews but concluded, as did the trial court in Sanchez, that the jurors could disregard the jokes and comments and reach a fair and impartial verdict. Not so, said the Eleventh Circuit, speaking through Judge Tuttle: “The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in its responsibility.” 785 F.2d at 1527. “Such jokes and slurs made by jurors while conducting their official duties prevents impartial decision-making from taking place. To allow such behavior in the jury room would erode public confidence in the equity of our system of justice.” The Eleventh Circuit concluded: “The people cannot be expected to respect their judicial system if its judges do not, first, do so.” 785 F.2d at 1529.

The court in Heller held that the juror’s conduct in making ethnic jokes and slurs during the trial process deprived the defendant of an impartial, fair trial. Once this course of conduct was shown to have occurred, actual prejudice to the individual jurors was not relevant. It reversed and ordered a new trial.

The jurors’ racial jokes and comments testified to by Juror Dowding in this case are far more egregious than those established in Singletary, Sanchez and Heller. The participants in the racist comments were apparently multiple, not just one or two. Further, it is clear, if Dowding’s account is accurate [which the court below should determine via juror interviews], that the racial slurs and comments were directed at these plaintiffs and their witnesses. Compare U.S. v. Caporale, 806 F.2d 1487 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763 (1987). In my view, Dowding’s testimony merited a full judicial interview of the other jurors to determine what actually happened in this case. Accordingly, we should remand this case to conduct such interviews. If it is established that the jurors in this case cracked racial jokes and made racially biased comments (as Dowding testified) while acting in their capacity as jurors in this case, a new trial should be ordered. Such behavior is objective and extrinsic. It does not “inhere” in the verdict. The fact that it happened deprived the litigants of a fair trial. Singletary; Sanchez; Heller. Amend. 7, U.S. Const. Art. I, § 22, Fla. Const.

GOSHORN, Judge,

dissenting.

I concur with the procedure and result outlined in Judge Diamantis’s dissenting opinion. I write, however to express my disagreement with his statement that “[o]nce the jurors were selected and sworn ... any discrimination or bias on their part constituted state action directed to the appellants.” (Emphasis added). That assertion seeks to extend Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077,114 L.Ed.2d 660 (1991) beyond the boundaries of its holding. Edmonson does, however hold:

Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality.

at-, 111 S.Ct. at 2087 (citations omitted). Therefore, I agree that we should reverse and remand with direction to the trial court to determine if racial bias or prejudice infected the jury verdict.

DIAMANTIS, Judge,

dissenting.

I respectfully dissent.

I agree with the majority opinion’s forceful statement that every member of this court (and, I would add, the trial judge) “deplore[s] the crass and intolerant comments attributed to some members of the jury” and that the people who made these comments were “insensitive clods”. However, I would reverse and remand the present case to the trial court to hold a hearing to determine whether the jury verdict was based on racial bias or prejudice which manifested itself after the jury was selected and sworn.

Once the jurors were selected and sworn, those jurors became judges of the facts and any discrimination or bias on their part constituted state action directed to the appellants. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618-29, 111 S.Ct. 2077, 2082-87, 114 L.Ed.2d 660, 673-79 (1991). In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the court made the following comments regarding racial discrimination in our judicial system:

The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. Rose v. Mitchell, supra, 443 U.S. [545] at 555, 99 S.Ct. [2993], at 2999-3000 [61 L.Ed.2d 739 (1979) ]. We have held, for example, that prosecutorial discretion cannot be exercised on the basis of race, Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985), and that, where racial bias is likely to influence a jury, an inquiry must be made into such bias. Ristaino v. Ross, 424 U.S. 589, 596, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976); see also Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

Powers, 499 U.S. at 415-16, 111 S.Ct. at 1373.

Accordingly, I would reverse and remand this case to the trial court for a hearing in which all the jurors are interviewed to determine if the verdict as to liability or damages (or both) was based on racial bias or prejudice, as the trial court did in United States v. Caporale, 806 F.2d 1487, 1504-05 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763 (1987). See also United States v. Heller, 785 F.2d 1524, 1527-28 (11th Cir.1986). At this hearing the trial court should look at such factors as (1) whether the racial comments were aimed at the appellants or any of the appellants’ witnesses; (2) the manner in which these remarks were made; (3) the time and place during the trial that the remarks were made, i.e., were these remarks made during deliberations or during a recess; (4) the context in which these remarks were made; (5) the evidence concerning both liability and damages; and (6) any other factor the trial court determines to be relevant.

The trial court should make findings concerning whether the verdict as to liability or damages was affected by the manifested racial bias or prejudice and should order a new trial on any of those matters if the court, in its discretion, deems necessary. In this regard, I would give the trial court the same discretion which is afforded the trial court in determining whether a peremptory challenge is based on race-neutral reasons. See Files v. State, 613 So.2d 1301, 1303 (Fla.1992); Fotopoulos v. State, 608 So.2d 784, 788 (Fla.1992), cert. denied, — U.S. —, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993); Mitchell v. State, 622 So.2d 1156, 1157 (Fla. 5th DCA 1993).

DAUKSCH, J., concurs. 
      
      . Maler v. Baptist Hosp. of Miami, Inc., 559 So.2d 1157 (Fla. 3d DCA 1989), approved, 579 So.2d 97 (Fla.1991).
     
      
      . Anyone who hates children and dogs can't be all bad. Leo C. Rosten, (1908-) in tribute to Fields at a banquet (1939).
     
      
      . For some reason counsel for neither party brought this case to our attention.
     
      
      
        .Maler v. Baptist Hosp. of Miami, Inc., 559 So.2d 1157, 1160 (Fla. 3d DCA 1989).
     
      
      . $10,560.00.
     
      
      . .Amend. 7, U.S. Const. Art. I, § 22, Fla. Const.
     
      
      . See International Union of Operating Engineers Local 675 v. Kinder, 573 So.2d 385 (Fla. 4th DCA 1991), appeal dismissed, 598 So.2d 76 (Fla.1992).
     
      
      
        .See Snook v. Firestone Tire & Rubber Co., 485 So.2d 496 (Fla. 5th DCA 1986).
     
      
      . Any racial bias exhibited or racial statements made by any of the jurors before being selected should be inquired into and discovered during voir dire.
     
      
      . I submit that the cases of Baptist Hospital of Miami v. Maler, 579 So.2d 97 (Fla.1991), and Rabun & Partners, Inc. v. Ashoka Enterprises, 604 So.2d 1284 (Fla. 5th DCA 1992), are not persuasive in the juror racial or ethnic bias situation. Because such bias cases involve state action, the applicable standard is one of "strict scrutiny.”
     