DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERIC MONTGOMERY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D18-2379 and 4D18-3102
[April 20, 2022]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Ilona Maxine Holmes and Marina
Garcia-Wood, Judges; L.T. Case Nos. 12-002688CF10A and
11004387CF10A.
Antony P. Ryan, Regional Counsel, and Louis G. Carres, Assistant
Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
This consolidated appeal arises from the defendant’s conviction on two
counts of first-degree murder, one count of attempted second-degree
murder, possession of a firearm by a felon, and in the consolidated case,
the revocation of probation. The defendant makes three arguments. The
trial court erred in: (1) awarding the State an additional peremptory
challenge; (2) denying the defendant’s motion to reduce his first-degree
murder charges; and (3) denying a motion for new trial based on a
sequestered juror incident. We find no merit in any of the arguments
raised and affirm.
The murders resulted from a domestic argument among the defendant,
his wife, stepdaughter, and daughter. The defendant’s grandmother and
sister went over to the home to calm things down. But instead, the
defendant was angered by his grandmother and sister’s presence; he
demanded they leave. The defendant told his grandmother: “I know how
to get you out of here.”
The defendant went to his bedroom and grabbed a rifle. The sister
testified the defendant approached his wife with the gun and said: “I
should shoot you.” The defendant then argued with his stepdaughter and
shot her. She fell to the floor where the defendant shot her seven more
times.
The grandmother sheltered in the laundry room with the wife. The
defendant entered the laundry room and repeatedly told his grandmother
to move. The defendant then attempted to physically drag his
grandmother away from his wife. When he could not separate the women,
he started shooting his wife. One bullet went through the wife’s body and
struck the grandmother. The wife suffered seven to eight bullet wounds
and died. The grandmother survived.
The State charged the defendant with two counts of first-degree murder
for the deaths of the wife and the stepdaughter, one count of attempted
second-degree murder for the wounded grandmother, and possession of a
firearm by a felon. The jury found the defendant guilty of all charges. 1
• The Additional Peremptory Challenge
During jury selection, both parties used all ten peremptory challenges.
The defendant then challenged a prospective juror for cause because the
juror would not meaningfully answer an inquiry regarding a bad childhood
as a mitigating factor. The court denied the cause challenge.
The defendant asked for an additional peremptory challenge to use on
the juror. The court granted the additional peremptory challenge but also
gave an additional challenge to the State so the challenges would remain
equal. The State used its additional peremptory challenge to strike a juror
whom the defendant wanted.
The defendant argues his additional peremptory challenge was a
“remedy” for the “erroneous denial” of his cause challenge. 2 Therefore, he
1 The defendant was sentenced to life in prison. In a separate case now
consolidated with the present appeal, the defendant’s probation was revoked
based upon his convictions.
2 The defendant’s suggestion that the court granted an additional peremptory
challenge as a remedy is misleading. The court explicitly stated, “I’m not
2
argues the court erred in granting an additional peremptory challenge to
the State. The State responds there was no error. We agree with the State.
A “trial judge has discretion to grant or deny additional peremptory
challenges.” McCray v. State,
220 So. 3d 1119, 1123 (Fla. 2017) (quoting
Parker v. State,
456 So. 2d 436, 442 (Fla. 1984)). In fact, we have
concluded error occurs when the trial court grants unequal peremptory
challenges to the parties. See St. Paul Fire & Marine Ins. Co. v. Welsh,
501
So. 2d 54 (Fla. 4th DCA 1987).
Here, the trial court did not abuse its discretion in awarding the State
a peremptory challenge after granting the same to the defendant.
• The Denial of Defendant’s Motion to Reduce the First-Degree
Murder Charges to Second-Degree Murder
After the State rested, the defendant moved to reduce the first-degree
murder charges to second-degree murder, arguing there was insufficient
evidence of premeditation. The defendant primarily relied on the
grandmother’s statement that she did not recognize the defendant because
of his rage. The court denied the motion. The defendant now argues the
court erred in denying his motion.
“A ‘motion to reduce charge’ is governed by the same standards that
govern a motion for judgment of acquittal, as both challenge the sufficiency
of the evidence.” Williams v. State,
70 So. 3d 726, 730 (Fla. 4th DCA 2011).
We have de novo review of such decisions.
Id.
In Bush v. State,
295 So. 3d 179, 200–01 (Fla. 2020), our supreme court
explained:
The standard of review historically applied to a determination
of the legal sufficiency of evidence to support a criminal
conviction, at least where there is some direct evidence, is
simply whether the State presented competent, substantial
evidence to support the verdict. To apply this standard to a
criminal case, an appellate court must “view[ ] the evidence in
the light most favorable to the State” and, maintaining this
perspective, ask whether “a rational trier of fact could have
found the existence of the elements of the crime beyond a
conceding error, Counsel. I just want the record to be reflective of that. It’s
discretionary with this trial court, and I’m just trying to humor you.”
3
reasonable doubt.” This standard should now be used in all
cases where the sufficiency of the evidence is analyzed.
Id. (alteration in original) (citations omitted); see also Rodriguez v. State,
46 Fla. L. Weekly D2501 (Fla. 3d DCA Nov. 24, 2021).
The defendant challenges only the proof of premeditation.
“Premeditation is a fully formed conscious purpose to kill that may be
formed in a moment and need only exist for such time as will allow the
accused to be conscious of the nature of the act he is about to commit and
the probable result of that act.” Asay v. State,
580 So. 2d 610, 612 (Fla.
1991).
Here, the sister testified that prior to the shooting, the defendant told
his wife: “I should shoot you.” The defendant also told his grandmother:
“I know how to get you out of here” and then proceeded to grab his rifle.
The defendant returned with the rifle and continued to argue with his
stepdaughter before shooting her eight times. He then proceeded to track
down his wife in the laundry room where he repeatedly told his
grandmother to move and attempted to drag his grandmother away so he
could shoot his wife. Unable to move the grandmother, the defendant shot
his wife seven to eight times.
Put simply, viewing the evidence in the light most favorable to the State,
the evidence was sufficient to support the jury’s premeditation finding.
Bush, 295 So. 3d at 200–01. The trial court did not err in denying the
defendant’s motion to reduce the charges.
• The Sequestered Juror
The jurors were sequestered in a hotel during the guilt phase of trial.
Around 3:30 a.m., a hotel employee slipped an invoice underneath a
juror’s door. The officer on duty confronted the employee and led her away
from the room. While the officer was on the phone with her supervisor,
the employee returned and entered the room to retrieve the invoice. The
juror woke up to the sound of the employee entering. She began sobbing
and was visibly shaken.
The juror did not immediately inform the judge of the incident because
she thought the officer would handle it. The juror returned to finish the
deliberations. The jury found the defendant guilty on all counts.
After the trial’s guilt phase, the juror left a message with the judge’s
office stating: “[The juror] is uncomfortable being sequestered again in
4
July because during the first sequestration a hotel staff member entered
her room at 3:30 a.m. by mistake and nobody was guarding her door.”
Post-trial, the defendant orally moved for a new trial. After hearing the
juror’s and the officer’s testimony, the court determined the sequestration
incident did not “rise[] to the level of a new trial.” The court denied the
motion. 3
On appeal, the defendant argues the sequestered juror incident
warranted a mistrial or new trial. The State responds that the defendant
was not prejudiced by the sequestered juror incident. That is the same
conclusion the trial court reached, and so do we.
The standard of review of a judge’s ruling on a motion for mistrial or
new trial is abuse of discretion. Hudson v. State,
278 So. 3d 257, 260 (Fla.
4th DCA 2019). 4 “[T]he power to declare a mistrial and discharge the jury
should be exercised with great care and caution and should be done only
in cases of absolute necessity.” England v. State,
940 So. 2d 389, 402 (Fla.
2006) (quoting Thomas v. State,
748 So. 2d 970, 980 (Fla. 1999)). Absent
evidence to the contrary, the jury presumably follows the law as
instructed. Lowe v. State,
259 So. 3d 23, 52 (Fla. 2018).
The judge and both attorneys questioned the juror and found she had
no communications with the employee who entered her room. In fact, the
juror had no idea what happened other than that someone opened and
closed her door. The defendant focuses on the juror’s expression of fear
at the time of the incident, and her request not to be sequestered for the
subsequent penalty proceedings. But the defendant essentially conceded
he cannot know if the incident was prejudicial to him.
Even though this was indeed a strange set of facts, there is no proof
that it either affected the deliberations the next day or prejudiced the
defendant in any way. The trial court therefore did not err in denying the
defendant’s motion.
Affirmed.
3 The court replaced the juror for the subsequent penalty proceedings.
4 At the hearing, defense counsel verbally moved for a mistrial/new trial. The
trial court verbally denied the motion for new trial. On appeal, the defendant
argues the trial court erred in denying his motion for mistrial and new trial.
Because our standard of review is the same for both motions, the result in this
case is also the same.
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GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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