
    STATE of Florida, Appellant, v. Peter D. DEVONEY, Appellee.
    No. 95-904.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1996.
    Opinion Denying Rehearing June 21, 1996.
    
      Robert A. Butterworth, Attorney General, Tallahassee, and Robin Compton Jones, Assistant Attorney General, Daytona Beach, for Appellant.
    James R. Valerino, of Cotter, Valerino & Zelman, P.A., Winter Park, for Appellee.
   GRIFFIN, Judge.

The state appeals an order of the lower court granting a new trial to the defendant, Peter Devoney [“Devoney”], after he was found guilty by a jury of causing serious bodily injury to one victim and the death of another while driving under the influence of alcohol. The lower court granted Devoney’s motion for new trial based on the testimony of one juror that the jury, during its deliberations, disregarded an instruction by the lower court and considered a reference made by the prosecutor during the course of his cross-examination of a defense witness concerning the defendant’s having previously received a speeding ticket. The lower court considered this to be a “breach of the court’s instruction by one or more jurors” which did not “inhere in the verdict” and which required a new trial. We disagree and reverse.

The concept of inherency has long been a feature of Florida law and has been codified in Florida’s evidence code: “Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.” § 90.607(2)(b), Fla. Stat. (1993). This rule forbids any judicial inquiry into the emotions, mental processes or mistaken beliefs of jurors. Powell v. Allstate Ins. Co., 652 So.2d 354, 356 (Fla.1995).

In Marks v. State Road Department, 69 So.2d 771 (Fla.1954), the supreme court explained:

That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.

Id. at 774-7 (quoting Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210 (1866)) (emphasis removed).

Devoney principally relies on two cases for the proposition that the jury’s discussion of a statement which the court instructed them to disregard constitutes an “overt prejudicial act” that would warrant overturning the verdict. The first is Baptist Hospital, Inc. v. Maler, 579 So.2d 97 (Fla.1991), wherein the high court said:

Finally, our opinion in no sense should be construed as condoning any process by which jurors actually enter into an agreement to disregard the law applicable to a case. Any actual, express agreement between two or more jurors to disregard their oaths and instructions constitutes neither subjective impression nor opinion, but an overt act. It thus is subject to judicial inquiry even though that inquiry may not be expanded to ask what impressions or opinions motivated jurors to enter into the agreement in the first instance. This is true, as the court below noted, whether the agreement is to decide the case by aggregation and average, by lot, by game or chance, by any other artifice or improper manner, or by a simple overt agreement to ignore the law and the court’s instructions.

Id. at 100 [citations omitted]. First, there was no evidence below of any agreement among the jurors to disregard their oaths. Further, Devoney’s argument would require making the distinction that reliance by any or all of the jurors on the stricken testimony in arriving at a verdict inheres in the verdict and would not be a basis to overturn the verdict, but the mention of the testimony by one or more jurors constitutes an overt act of misconduct that would require the verdict to be undone. This, with respect, does not seem to be a rational way to distinguish between valid and invalid verdicts.

The second case relied on by Devoney is Powell v. Allstate Insurance Company, 652 So.2d 354. It is true that in the Powell opinion, the court seemed to make a distinction between the silent bigotry of one or more jurors and appeals to racial bias openly made during deliberations. We do not believe, however, that the supreme court intended in Powell to overhaul the traditional analysis of whether a matter inheres in a verdict by reducing the test to a question of speech versus thought. Rather, Powell appears to have established that a juror who spreads sentiments of racial, ethnic, religious or gender bias, fatally infects the deliberation process in a unique and especially opprobrious way and the courts will be vigilant to root it out. Powell identifies a special circumstance where the high court deemed interference necessary in order to “jealously guard our sacred trust to assure equal treatment before the law.” Id. at 358. Also, it is important that such biases are carried like germs from outside the process of the trial to infect the jury’s deliberation, whereas discussion by a jury of one or more matters heard during the course of the trial, even where jurors have been instructed to “disregard” the matter discussed, is a matter internal to and inherent in the process of trial.

Indeed, jurors are reassured in the standard jury instructions that:

For many centuries, our society has relied upon juries for consideration of difficult cases. We have recognized for hundreds of years that a jury’s deliberations, discussions and votes should remain their private affair as long as they wish it. Therefore, the law gives you a unique privilege not to speak about the jury’s work.

Fla.Std. Jury Instr. (Crim.) 3.07.

Consistent with the cases previously cited, which broadly protect the sanctity of the jury deliberation process, we conclude that one or more jurors’ discussion, during the course of jury deliberations, of a matter adduced during the course of trial but which they were instructed to disregard does not constitute an overt act of misconduct that warrants a new trial. See Orange County v. Piper, 585 So.2d 1182 (Fla. 5th DCA 1991); Phares v. Froehlich, 582 So.2d 683 (Fla. 2d DCA 1991); Sims v. State, 444 So.2d 922 (Fla.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984); Branch v. State, 212 So.2d 29 (Fla. 2d DCA 1968).

REVERSED and REMANDED with instructions to reinstate the jury verdict.

PETERSON, C.J., concurs.

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

W. SHARP, Judge,

dissenting.

In violation of the court’s express instruction that it should totally disregard any question or reference to DeVoney’s having had a speeding ticket for going twenty miles per hour over the posted speed limit, a year prior to his trial for DUI, at least two jurors discussed that incident during the jury deliberations. One juror used the speeding ticket reference as a ground to assert DeVoney had a “bad driving record” in order to pressure the other into agreeing to a guilty verdict. The foreperson of the jury testified that another juror told him during their deliberations:

He said, well, you know, I could sort of lean toward your thinking except for the fact that, whether you like it or not, I can’t forget the fact that he had a prior bad driving record. He was quoted as driving twenty miles an hour over the speed limit. Do you — if you continue to vote not guilty, do you want to turn this man loose knowing that he’s got a DUI now and a prior record? Do you want to turn him loose so as to kill somebody else?
And then the statement came up, do you want to waste our whole week here and vote not guilty? After a lot of meditation, I voted guilty, and at this point in time I don’t know why I did. I wish there was some legal way to change my mind, and I apologize to the court for taking up your time and being a poor juror. I just don’t know what else to tell you.

I agree with the trial court that appellant sufficiently showed that the jury considered the speeding ticket contrary to the court’s instruction; there was a reasonable possibility that its consideration was prejudicial and not harmless, given the “pressured” juror’s lament that he regretted his verdict; and the only remedy, under such circumstances, is to grant a new trial. Thus, I would affirm.

The issue here is whether the failure of the jury to follow the court’s instruction “inheres in the verdict” so that inquiry is foreclosed. In balancing the rights of litigants to a fair trial and the privacy rights of jurors and the need for finality of verdicts, the rule has emerged that courts may not inquire into the subjective decision-making process of the jury:

[T]he law does not permit a juror to avoid his verdict for any reason which essentially inheres in the verdict itself, as that he ‘did not assent to the verdict; that he misunderstood the instructions of the Court, the •statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.’

Powell v. Allstate Insurance Co., 652 So.2d 354, 356, n. 3, quoting McAllister Hotel, Inc. v. Porte, 123 So.2d 339, 344 (Fla.1959). See § 90.607(2)(b), Fla.Stat. (upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment).

Inquiry is limited to matters “extrinsic” to the verdict or “overt acts” which might have prejudicially affected the jury in reaching its verdict. Powell; Baptist Hospital of Miami, Inc., 579 So.2d 97 (Fla.1991); State v. Hamilton, 574 So.2d 124 (Fla.1991); Snook v. Firestone Tire & Rubber Co., 485 So.2d 496 (Fla. 5th DCA 196). Extrinsic matters and overt acts include the receipt by the jury of prejudicial nonrecord information. Baptist Hospital of Miami Inc.

For example, in Snook v. Firestone Tire and Rubber Company, 485 So.2d 496 (Fla. 5th DCA 1986), this court held that the plaintiff in a personal injury action was entitled to have the jurors interviewed because he sufficiently established that the verdict may have been improperly influenced by considerations outside the record. Snook had sued for damages allegedly caused by a defective tire manufactured by Firestone. The jury returned a verdict for Firestone. Snook then filed a motion for new trial and for leave to interview jurors, alleging that one juror had visited a tire installation garage and had inquired as to whether the accident could have occurred in the manner in which Snook claimed that it had. The juror then reported the results of his independent investigation to the other jurors. This court held that these allegations were sufficient to support a motion to interview the jury:

In reaching a verdict, jurors must not act on special or independent facts which were not received in evidence. Edelstein v. Roskin, 356 So.2d 38 (Fla. 3d DCA 1978). In this instance, the juror was alleged to have deliberately disregarded the court’s instructions not to discuss the case and to base the verdict solely on evidence presented during trial by not only consulting with someone else, but by also reporting to the other jurors that the testimony they had received was inaccurate. Had this happened and been discovered during the trial, it would certainly have justified the court in declaring a mistrial because the effect is that an unsworn and unqualified witness had given opinion testimony as to whether the accident occurred in the manner that Snook had testified, (footnote omitted)

485 So.2d 499. See also Bickel v. State Farm Mutual Automobile Ins. Co., 557 So.2d 674 (Fla. 2d DCA 1990) (jury’s misconduct in driving to the scene of the accident and performing his own experiment sufficient to warrant jury interview).

In City of Winter Haven v. Allen, 589 So.2d 968 (Fla. 2d DCA 1991), rev. denied, 599 So.2d 654 (Fla.1992), the court affirmed the trial judge’s order granting the plaintiff a new trial. The plaintiff in that case was the wife of a slain deputy sheriff who filed suit against the City of Winter Haven, claiming that one of its police officers negligently shot her husband. Apparently, one juror informed some of the other jurors that the plaintiff was receiving the proceeds from an earlier wrongful death action, the result of which had not been disclosed to the jury. The court concluded that the juror’s disclosure of the prior verdict and its impact on the present verdict was an overt prejudicial act which authorized a new trial.

Here the prosecutor questioned a witness about the fact that DeVoney had a prior speeding ticket. This question and answer were ruled inadmissible and the jury was specifically instructed to disregard any consideration of the ticket. Since the reference to the ticket was ruled inadmissible, it is equivalent to a matter “outside the record.” If the receipt of information regarding outside experiments or even references to dictionaries and medical books require a reversal and a new trial, then consideration of inadmissible evidence that defendant had a prior speeding ticket in a DUI trial is sufficiently prejudicial to warrant a new trial. See Weber v. State, 501 So.2d 1379 (Fla. 3d DCA 1987) (defendant was entitled to a new trial where jury learned from an extrinsic source that he had been previously convicted of and sentenced to prison for the crime for which he was on trial). See also Bailey v. State, 219 GaApp. 258, 465 S.E.2d 284 (1995) (trial judge’s inability to disregard evidence he ruled inadmissible constituted a manifest necessity for a mistrial).

Cases from other jurisdictions support the conclusion that receipt of prejudicial outside information is sufficient to warrant a new trial. For example, in State v. Migliaro, 28 Conn.App. 388, 611 A.2d 422 (1992), the defendant was convicted of two crimes related to the death of his twelve-week-old daughter. The evidence at trial was in conflict as to whether the child was a victim of abuse or natural causes. One of the jurors apparently brought two medical books with her to the trial. The court did not investigate as to whether there was any potential jury misconduct.

On appeal, the defendant argued that his constitutional rights were violated when the court failed to conduct an inquiry into whether any of the jurors had relied on the medical books and when the court failed to declare a mistrial because of the potential juror misconduct. In resolving this issue, the court noted that the right to a jury trial guarantees the accused the right to a fair trial by a panel of impartial jurors. A necessary component to the right to an impartial jury is the right to have the jury decide the case solely on the basis of the evidence and arguments given to them in court after proper instructions on the law. Consideration of extrinsic evidence is jury misconduct and is sufficient to violate the constitutional right to trial by an impartial jury.

In Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988), the Court of Appeals reversed a murder conviction and remanded for a new trial based on the reasonable possibility that an extra-judicial statement influenced the state court verdict. In that case, the owner of a tavern was murdered and robbed. Circumstantial evidence linked Dickson to the crime. Dickson admitted that he had checked the tavern cash register for money and had stolen the victim’s car but denied that he had murdered the victim. The jury found Dickson guilty as charged. During a juror interview several days later, the court found that a deputy sheriff escorting the jurors to and from the courtroom had made a statement to two jurors to the effect that Dickson “had done something like this before.” The court also found that the statement had been made between two to six days before the jury retired for deliberations and that neither of the jurors had discussed the statement among themselves or with other members of the jury. The court found that the two jurors had followed its instructions limiting the use of prior convictions and directing them to make their decision exclusively on the evidence at trial.

The Court of Appeals noted that a defendant is entitled to a new trial when the jury obtains or uses evidence which has not been used during trial if there is a reasonable possibility that the extrinsic material could have affected the verdict. Here, there was a direct and rational connection between the statement that Dickson “had done something like this before” and the conclusion that he had committed the same crime again. The deputy’s comment was thus directly related to a material issue in the case and was highly inflammatory. This is especially true where the defendant was deprived of the opportunity to rebut the evidence, to discuss its significance in argument to the jury or to take other steps to lessen its prejudicial impact. The court found that the judge’s instruction to the jury to ignore the defendant’s prior convictions in determining whether he committed the offense being tried “is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capabilities.” The court also found irrelevant the fact that the prejudicial information was communicated to only two jurors. The court noted that a defendant is entitled to a jury of impartial jurors and that if only one juror were unduly biased or improperly influenced, the defendant was deprived of his Sixth Amendment right to a fair trial.

Here the jury in effect received “extrinsic” evidence that DeVoney had a prior speeding ticket. The jury discussions indicate that the jury foreperson was being pressured to vote guilty in this DUI trial because of the ticket, a matter which the jury was specifically instructed not to consider. In Baptist Hospital, the Florida Supreme Court noted that any actual, express agreement between two or more jurors to disregard their oaths and instructions constitutes “an overt” act and is subject to judicial inquiry. This is true whether the agreement is to decide the case by aggregation and average, by lot, by game or chance, by any other artifice or improper manner, or by simple overt agreement to ignore the law and the court’s instructions. 579 So.2d at 100.

Here, the jury discussions suggest that the jurors, or at least one juror and the foreperson, tacitly agreed to disregard the court’s instruction and considered DeVoney’s prior ticket. In my view, this is the kind of overt act which should permit the court to inquire into the jury verdict, and set it aside.

ON MOTION FOR REHEARING

GRIFFIN, Judge.

The court finds no merit in appellee’s motion for rehearing, and it is denied. Although the majority of the panel deciding this case remains of the view that the ease is correctly decided, we are aware of the just released decision of the Supreme Court of Florida in Wilding v. State, 674 So.2d 114, 116-18 (Fla.1996), and conclude the analysis undertaken by the court in that ease may represent a divergence from the interpretation of Powell v. Allstate Insurance Company, 652 So.2d 354 (Fla.1995), articulated in the majority opinion. Accordingly, sua sponte, we certify to the supreme court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the following question:

DOES ONE OR MORE JURORS’ DISCUSSION, DURING THE COURSE OF JURY DELIBERATIONS, OF A MATTER ADDUCED DURING THE COURSE OF TRIAL BUT WHICH THEY WERE INSTRUCTED TO DISREGARD CONSTITUTE AN OVERT ACT OF MISCONDUCT THAT WARRANTS A NEW TRIAL?

PETERSON, C.J., and W. SHARP, J., concur. 
      
      .The juror said all the jurors discussed the speeding ticket and characterized the statements of another juror during deliberations as follows:
      He said, well, you know, I could sort of lean toward your thinking except for the fact that, whether you like it or not, I can't forget the fact that he had a prior bad driving record. He was quoted as driving twenty miles an hour over the speed limit. Do you — if you continue to vote not guilty, do you want to turn this man loose knowing that he's got a DUI now and a prior record? Do you want to turn him loose so as to kill somebody else?
     
      
      . State v. Hamilton, 574 So.2d 124 (Fla.1991). See also Ray Cooke Enters., Inc. v. Parsons, 627 So.2d 1267 (Fla. 4th DCA 1993); Sims v. State, 444 So.2d 922 (Fla. 1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984); McAllister Hotel, Inc. v. Porte, 123 So.2d 339 (Fla. 1959); State v. Ramirez, 73 So.2d 218 (Fla. 1954).
     
      
      . Over the many years since Marks, the appellate courts have consistently refused to invalidate verdicts when the asserted grounds for doing so appeared to inhere in the verdict. See, e.g., Baptist Hospital, Inc. v. Maler, 579 So.2d 97, 100-01 (Fla.1991) (allegation jury verdict prompted by sympathy for brain-damaged plaintiff child); Sims v. State, 444 So.2d 922, 924-25 (Fla.1983) (allegation jury considered the defendant’s failure to testify), cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984); McAllister Hotel, Inc. v. Porte, 123 So.2d 339, 344 (Fla. 1959) (allegation jury arrived at verdict by mistake or misconceived the issues); State v. Ramirez, 73 So.2d 218, 219 (Fla.1954) (allegation juror misunderstood significance of guilty vote; thought only majority needed to convict); Ray Cooke Enters., Inc. v. Parsons, 627 So.2d 1267, 1268 (Fla. 4th DCA 1993) (allegation juror misunderstood instructions); Travelers Ins. Co. v. Jackson, 610 So.2d 680, 681 (Fla. 5th DCA 1992) (allegation jury was influenced by derogation mouthed by attorney); Rabun and Partners, Inc. v. Ashoka Enters., Inc., 604 So.2d 1284, 1286 (Fla. 5th DCA 1992) (allegation jury ruled against party because he was rich and did not need money); Orange County v. Piper, 585 So.2d 1182, 1183 (Fla. 5th DCA 1991) (allegation jury considered matters outside record); Phares v. Froehlich, 582 So.2d 683, 685 (Fla. 2d DCA 1991) (allegation jury "blatantly disregarded” court’s multiple instructions not to consider non-record evidence); Department of Transp. v. Rejrat, 540 So.2d 911, 913 (Fla. 2d DCA 1989) (allegation jury misunderstood comparative negligence); Darby v. State, 461 So.2d 984, 984-85 (Fla. 1st DCA 1984) (allegation foreperson improperly influenced other jurors); Powell v. State, 414 So.2d 1095, 1096 (Fla. 5th DCA 1982) (allegation juror pressured by lateness of the hour and intimidated by others not to “hang” jury); Parker v. State, 336 So.2d 426, 426 (Fla. 1st DCA 1976) (allegation juror changed mind after hearing sentence); Branch v. State, 212 So.2d 29, 32 (Fla. 2d DCA 1968) (allegation jury disregarded court's limiting instruction).
      On the other hand, appellate courts have also identified the following situations susceptible to inquiry because the alleged matters did not inhere in the juty’s verdict. See, e.g., Powell v. Allstate Ins. Co., 652 So.2d at 357-58 (allegations of racially biased statements made by jurors during proceedings and deliberations); Russ v. State, 95 So.2d 594, 600-01 (Fla.1957) (allegation juror related personal knowledge of material facts to jury); Carcasses v. Julien, 616 So.2d 486, 487 (Fla. 3d DCA 1993) (allegation juror received information from outside courtroom); Sentinel Communications Co. v. Watson, 615 So.2d 768, 772 (Fla. 5th DCA 1993) (allegations jurors read newspapers contrary to court orders and jurors lied about knowledge of incident outside courtroom); International Union of Operating Eng'rs, Local 675 v. Kinder, 573 So.2d 385, 386 (Fla. 4th DCA 1991) (courthouse custodian exhorted jurors to give large award to plaintiff); Bickel v. State Farm Mutual Auto. Ins. Co., 557 So.2d 674, 675 (Fla. 2d DCA 1990) (allegation juror performed independent experiment and related results to panel); Snook v. Firestone Tire & Rubber Co., 485 So.2d 496, 499 (Fla. 5th DCA 1986) (allegation juror conducted own experiment and reported results to other jurors); State v. Blasi, 411 So.2d 1320, 1322 (Fla. 2d DCA 1981) (allegation foreperson signed wrong verdict form).
     
      
      . See cases cited in note 3, supra.
      
     
      
      . See Smith v. State, 95 So.2d 525 (Fla. 1957) (presence of a dictionary in a jury room required reversal of the verdict); State v. Migliaro, 28 Conn.App. 388, 611 A.2d 422 (1992) (trial court’s duty to investigate potential juiy misconduct was triggered in prosecution for criminally negligent homicide when trial court became aware that juror brought medical books into the courthouse where medical evidence was critical to the jury's resolution of the cause of the victim's death).
     