Petition for Writ of Certiorari — Ellancer Allen McGrady, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ELLANCER ALLEN MCGRADY, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINBGER

Public Defender

Jeffrey L. Anderson*

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

janderson@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

* Member of the United States Supreme Court Bar

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ELLANCER ALLEN MCGRADY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-2600

[October 9, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Scott I. Suskauer, Judge; L.T. Case No.

502022CF001635A.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,

Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

Appellant was convicted of committing an unnatural lascivious act,

battery, and lewd or lascivious molestation. Appellant raises several

issues on appeal. We affirm on all issues without further comment and

write only to discuss whether the trial court erred by performing its

gatekeeping function as to the child victim’s competency in front of the

jury instead of outside the presence of the jury. 1

Appellant also argues that the trial court erred by: (1) admitting evidence of

alleged prior molestations by appellant; (2) admitting child hearsay statements

without giving appellant an opportunity to be heard prior to the ruling; (3) placing

evidence before the jury during deliberations which was not presented at trial; (4)

allowing the child victim’s statement to the Child Protection Team (“CPT”) to be

admitted into evidence; (5) denying appellant’s motion for severance; and (6)

trying appellant by a jury of six instead of twelve.

1

a1

Appellant pled not guilty to three counts of sexual battery upon a

person less than twelve years of age, and one count of lewd or lascivious

molestation. The case proceeded to trial, where the child victim, age ten,

was called as the state’s first witness. Before the victim began testifying,

the trial judge asked the victim if she knew the difference between the

truth and a lie. The victim responded that she did. Defense counsel

objected, arguing that inquiry into the victim’s competency to testify

needed to take place outside the presence of the jury. Defense counsel

was concerned that these inquiries would “bolster” the child victim’s

testimony. The state responded that it was appropriate to conduct the

competency evaluation in front of the jury, so the jury could weigh the

victim’s credibility and ability to tell the truth. The trial judge continued

to conduct the competency examination in the presence of the jury, by

asking the victim whether various statements made by the trial judge were

the truth or a lie. 2 Following the trial judge’s competency evaluation, the

trial judge told the state it “may proceed.”

2

The trial judge asked the victim the following hypotheticals in determining

whether the victim could distinguish the truth from a lie:

THE COURT: . . . [I]f I were to tell you right now [victim] my—

this—this clothing that I’m wearing is white. Okay. Would I be

telling you the truth or would [I] be telling you a lie?

[THE VICTIM]: Lie.

THE COURT: Why is that?

[THE VICTIM]: Because it’s not white.

THE COURT: What color is it?

[THE VICTIM]: Black.

THE COURT: Okay. And so that’s just a really kind of basic

difference between telling the truth and telling a lie.

But you understand, it could come in different contexts too.

Like if I was to—if someone were to come and take this pen from

me. Okay. Have you ever seen anyone—did anyone just come up

and take this pen?

[THE VICTIM]: No.

THE COURT: No, you didn’t see that happen, right?

[THE VICTIM]: No.

THE COURT: Now the pen is gone right now, I’m moving the pen

away. If I accused [the prosecutor] of taking the pen away from me,

would I be telling you the truth or telling a lie?

[THE VICTIM]: Lie.

THE COURT: Because it didn’t happen, right? Is that right?

[THE VICTIM]: Yes.

THE COURT: Okay. So you understand, it’s important that you

just talk about what things that actually happened and no lies,

okay.

[THE VICTIM]: Yes.

a2

The victim testified that, when she was eight, she had gone to visit her

mother when appellant, her mother’s boyfriend, had started rubbing his

penis on her vagina. The victim said that appellant also licked her breasts

and her vagina, and had previously put his penis in her mouth. The victim

was alone with appellant when this happened. The victim said that

appellant had also done this before when she was five or six.

The victim lived with her grandmother. The grandmother testified that

the victim told her that appellant “did it again” when the grandmother

picked up the victim from visiting with her mother. The grandmother

asked the victim what appellant did, and the victim said appellant touched

her “private.” The grandmother brought the victim to the police station,

and she was taken to an interview with the Child Protection Team (“CPT”)

around 3:00 a.m.

A video of the CPT interview was played for the jury. The interviewer

asked the victim what the truth and a lie meant. The victim was able to

differentiate between the truth and a lie, based on the color of various

objects in the room. The victim promised to tell the interviewer the truth.

The victim told the interviewer that appellant touched her vagina with

his hand when she went to visit her mother. The victim also told the

interviewer that appellant made her “suck his thing.” The victim said that

appellant put his mouth on her vagina and touched her breasts with his

hands and mouth. The victim said appellant put his penis in her vagina,

but not all the way in. The victim also told the interviewer that appellant

had done this before, multiple times when she was five.

Appellant was convicted of committing an unnatural lascivious act and

battery, which were lesser included offenses of two counts of sexual battery

upon a person less than twelve years of age. Appellant was found not

guilty of the third count of sexual battery upon a person less than twelve

years of age. Finally, appellant was found guilty as charged of lewd or

lascivious molestation. This appeal follows.

THE COURT: All right. So with that, I’m going to turn it over to

[the prosecutor] and [defense counsel’s] question as well.

It’s really important that you answer all the questions okay.

[THE VICTIM]: Yes, sir.

THE COURT: All right. Thank you. You may proceed,

[prosecutor].

a3

Appellant argues that the trial court erred by performing its

gatekeeping function as to the trial court’s determination of the child

victim’s competency to testify in front of the jury. Appellant argues that

this “infers to the jury that the trial court has . . . weighed in on the child’s

credibility.”

“[T]rial judges have broad discretion in the conduct of trials.” Ferrer v.

State, 718 So. 2d 822, 825 (Fla. 4th DCA 1998). “Consequently appellate

courts will not interfere with the trial judge’s management of the process

of conducting trials, save in the rare instances where such discretion is

abused.” Id.; see also Mike Bradford & Co. v. Gulf States Steel Co., 184 So.

2d 911, 915 (Fla. 3d DCA 1966) (“It is true that rulings as to the conduct

of trial proceedings are ordinarily within the discretion of the trial judge

and that they will not be disturbed on appeal unless a palpable abuse of

discretion appears.”).

Significantly, the Second District found “no authority that directs the

competency qualification of a child witness take place outside the presence

of the jury.” Herrera v. State, 625 So. 2d 1240, 1240 (Fla. 2d DCA 1993).

Similarly, other jurisdictions have likewise determined that examining a

child witness’s competency to testify in front of the jury is not reversible

error. See, e.g., State v. Orlando, 163 A. 256, 258 (Conn. 1932) (“While

this determination is solely for the court to make, the credit to be accorded

the testimony of a child witness is for the jury, and the opportunity given

by their presence during the examination of the witness as to competency

may well assist them in determining his ability to observe correctly, to

remember and narrate accurately, and to appreciate the obligation resting

upon him to be truthful.”); State v. Manlove, 441 P.2d 229, 233 (N.M. Ct.

App. 1968) (“We are of the opinion that the voir dire examination as to

competency need not be conducted in the absence of the jury. This

decision must be left to the sound discretion of the trial court.”); Ex parte

Brown, 74 So. 3d 1039, 1044-45 (Ala. 2011) (“[W]e decline to establish a

per se rule requiring a trial court’s examination of a child witness to

determine the child’s understanding of the duty to testify truthfully to be

conducted outside the presence of the jury. . . . [T]he fact that the

examination occurs in the presence of the jury does not automatically

create prejudice and require reversal.”).

We find that no reversible error occurred in this case. Appellant was

not prejudiced by the questioning of the victim’s competency in the

presence of the jury. The competency inquiry was conducted entirely in a

neutral manner. The trial judge made no comment on the child victim’s

credibility when he finished the competency determination. The trial judge

merely instructed the state that it “may proceed.” The trial judge did not

a4

invade the province of the jury, because he did not make a determination

as to the victim’s credibility. See Roberson v. State, 24 So. 474, 478 (Fla.

1898) (“We have repeatedly held that remarks of the judge during the trial

as to the credibility of a witness, or as to the weight of any evidence

relevant to the issue, are an improper assumption of or infringement upon

the province of the jury . . . .”); see also § 90.106, Fla. Stat. (2023) (“A judge

may not sum up the evidence or comment to the jury upon the weight of

the evidence, the credibility of the witnesses, or the guilt of the accused.”).

Additionally, the victim’s answers to the competency questioning by the

trial judge elicited the same answers as in the CPT video, which was also

played for the jury. During the trial, the victim said she knew it was

important to tell the truth. The victim said she knew the difference

between telling the truth and telling a lie. The victim was able to

distinguish between a truth and a lie based on various questions posed by

the trial judge. Similarly, in the CPT interview, the victim told the

interviewer what it means to tell the truth and what it means to tell a lie.

The victim was able to distinguish between the truth and a lie based on

various questions posed by the interviewer. Conducting the competency

determination in the presence of the jury was not error, but even if it was

determined to be error, at most it was harmless error because the victim’s

answers were cumulative to statements she made in the CPT interview,

which was admitted into evidence. See Casica v. State, 24 So. 3d 1236,

1241 (Fla. 4th DCA 2009) (holding error in admitting hearsay statement

harmless “because that statement was cumulative to the victim’s

testimony” which was properly admitted into evidence).

However, we believe the better practice is to conduct this examination

outside the presence of the jury. We share this view, of that being the

better practice, with courts in other jurisdictions. See Manlove, 441 P.2d

at 233 (“We do feel that generally the better practice would be to conduct

this examination outside the presence of the jury.”); People v. Wittrein, 221

P.3d 1076, 1080 (Colo. 2009) (“Although we agree with several other

jurisdictions that by far the better practice is to hold child competency

proceedings outside the presence of the jury, thereby minimizing the

danger of unfair prejudice resulting from the child’s responses to the

competency questions, this does not mean that the interests of justice

dictate that such questioning may never be held with the jury present.”)

(footnote omitted); Brown, 74 So. 3d at 1044-45 (“Although it may be the

better practice to conduct such an examination outside the presence of

the jury to avoid a risk of invading the province of the jury with regard to

determining the credibility of a child witness, the fact that the examination

occurs in the presence of the jury does not automatically create prejudice

and require reversal.”).

a5

In sum, we find no reversible error present in this case. While the better

practice is to conduct a competency determination outside the presence of

the jury, appellant was not prejudiced in this case. As such, we affirm.

Affirmed.

KLINGENSMITH, C.J., and GERBER, J., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

a6

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401

November 1, 2024

ELLANCER ALLEN MCGRADY,

Appellant(s)

v.

CASE NO. - 4D2023-2600

L.T. No. - 502022CF001635A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's October 24, 2024 motion for rehearing and certification is

denied.

Served:

Jeffrey L Anderson

Crim App WPB Attorney General

Jessica Evon Crockett

Rachael Kaiman

Palm Beach Public Defender

KR

I HEREBY CERTIFY that the foregoing is a true copy of the court’s order.

4D2023-2600 November 1, 2024

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2023-2600 November 1, 2024

a7

Supreme Court of Florida

WEDNESDAY, JANUARY 15, 2025

Ellancer Allen McGrady,

Petitioner(s)

v.

SC2024-1671

Lower Tribunal No(s).:

4D2023-2600;

502022CF001635AXXXMB

State of Florida,

Respondent(s)

This cause having heretofore been submitted to the Court on

jurisdictional briefs and portions of the record deemed necessary to

reflect jurisdiction under Article V, Section 3(b), Florida

Constitution, and the Court having determined that it should

decline to accept jurisdiction, it is ordered that the petition for

review is denied.

No motion for rehearing will be entertained by the Court. See

Fla. R. App. P. 9.330(d)(2).

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and SASSO,

JJ., concur.

A True Copy

Test:

SC2024-1671 1/15/2025

SC2024-1671 1/15/2025

LC

a8

POINT III

THE TRIAL COURT ERRED BY PERFORMING ITS GATEKEEPING FUNCTION AS TO THE CHILD’S COMPETENCY IN THE PRESENCE OF THE JURY

The trial court performed its gatekeeping function of determining and ensuring that ZH was competent to testify.

This was done in front of the jury.

Appellant did not object to the gatekeeping function of inquiring into competency T39 lines 17-20.

Appellant did object to the gatekeeping function being

done in the presence of the jury T39 lines 17-20.

The trial court’s response to the objection was that case law

did not prohibit it from performing this gatekeeping function in

front of the jury T40.

The prosecutor argued that it was appropriate to do this in

front of the jury so they could weigh the child’s credibility T40 lines

7-10.

There simply is no case law encouraging or allowing a judge to

perform gatekeeping functions in front of the jury.

There is no case law which support judges holding hearings on

motions to suppress, in limine, etc. in front of the jury.

a9

For example, in Whitfield v. State, 479 So.2d 208, 212 (Fla. 4th

DCA 1985), this Court recognized the trial judge should make its

investigation on the voluntariness of a confession outside the presence of the jury and its “conclusion should not be stated to the jury…”. See also Stephenson v. State, 645 So.2d 161,163 (Fla 4th

DCA 1994)(improper for prosecutor to tell jury it would not hear

confession if it was not voluntary… this Court noted the defense

has “two opportunities to attack a confession.” Id. The defendant

can first attack the confession before the trial court and then later

again attack the confession by having the jury make a determination regarding the voluntariness of a confession).

Likewise, the competency of a witness, if challenged, is first

determined by the trial court and then can be evaluated by the jury.

What is askew here is that the trial court conducted the gatekeeping function in front of the jury.

The prosecutor even acknowledged by having the judge do

this in front of the jury, the jury could weigh the child’s credibility T40 lines 7-10. That is the problem. By the judge doing so in

front of the jury, and then passing the witness to the prosecutor, it

infers to the jury that the trial court has, as said by the prosecutor,

a10

weighed in on the child’s credibility. It was error for the trial court

to conduct its gatekeeping function in the presence of the jury.

The error cannot be deemed harmless. The trial court’s words

and actions can have a deep impact on the jury.

A trial court should not say anything that could insinuate in

any way how it may view witnesses or evidence. Raulerson v. State,

102 So.2d 281, 285 (Fla.1958) (“A] trial court should avoid making

any remark within the hearing of the jury that is capable directly or

indirectly, expressly, inferentially, or by innuendo of conveying any

intimation as to what view he takes of the case or that intimates his

opinion as to the weight, character, or credibility of any evidence

adduced”).

As explained in Hamilton v. State, 109 So.2d 422, 424 (Fla. 3d

DCA 1959) a trial court’s comments and actions are particularly

important to jurors: ‘The dominant position occupied by a judge in

the trial of a cause before a jury is such that his remarks or comments ... overshadow those of the litigants, witnesses and other

court officers”; see also Flicker v. State, 374 So.2d 1141, 1142 (Fla.

5th DCA 1979) (“Because of the trial judge's position in the courtroom, the jury hangs on his every word and is most attentive to any

a11

indication of his view of the proceedings”); Kellum v. State, 104

So.2d 99, 104 (Fla. 3d DCA 1958) (“Regardless of the proper intention of the court in making such remarks, in determining their effect on the jury we must consider that the high position which a

judge holds in the scheme of the trial magnifies, in the minds of the

jurors, the meaning of comments by the judge, to which he himself

may not attach particular importance”).

Again, when stating that the trial court’s inquiry into competency in the presence of the jury helps the jury weigh credibility –

the prosecutor knew its witness was bolstered by having the judge

do it.

The error deprived Appellant’s rights under the Fifth, Sixth

and Fourteenth Amendments to the United States Constitution and

Article I, Sections 2, 7, 9, 16 and 22 of the Florida Constitution.

Appellant’s convictions and sentences must be reversed and this

cause remanded for a new trail.

a12

POINT VII

APPELLANT WAS ENTITLED TO A TWELVE-PERSON

JURY UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES’ CONSTITUITION

Appellant moved to be tried by a twelve person jury R86-91,

T3. Appellant’s motion was denied T4.

Florida allows trial by a jury of six in non-capital cases. Art. I,

§ 22,

Fla. Const.; § 913.10, Fla. Stat. Accordingly, this case in-

volved a trial by a jury of six rather than twelve members. Appellant

contends that the federal constitution requires a jury of twelve, so

that fundamental error occurred because he was deprived of this

right. He acknowledges contrary authority, as discussed below.

Williams v. Florida, 399 U.S. 78 (1970), held that state court

juries as small as six were constitutionally permissible, despite the

determination in Thompson v. Utah, 170 U.S. 343, 349-50 (1898),

that the jury guaranteed by the Sixth Amendment consists “of

twelve persons, neither more nor less.”

Thompson held that the Sixth Amendment enshrined the right

to a jury of twelve as provided at common law. Id. at 349-50. In addition to the authorities cited there, one may note that Blackstone

stated that the right to a jury of twelve is even older, and more firm-

a13

ly established than the unqualified right to counsel in criminal cases. 4 William Blackstone, Commentaries on the Laws of England, ch.

27 (“Of Trial and Conviction”).1 Blackstone traced the right back to

ancient feudal right to “a tribunal composed of twelve good men and

true,” and wrote that “it is the most transcendent privilege which

any subject can be enjoy or wish for, that he cannot be affected in

his property, his liberty or his person, but by the unanimous consent of twelve of his neighbours and equals.” 3 Blackstone, ch. 23

(“Of the Trial by Jury”).2

Thus, at the time of the amendment’s adoption, the essential

elements of a jury included “twelve men, neither more nor less.”

Patton v. United States, 281 U.S. 276, 288 (1930).

Williams itself has now come into question in light of Ramos v.

Louisiana, 140 S. Ct. 1390 (2020), which concluded that the Sixth

Amendment’s jury requirement encompasses what the term “meant

at the Sixth Amendment’s adoption.” Id. at 1395. (Of course, the requirement that the jury be composed of men has been overturned

1 Found at https://lonang.com/wp-

content/download/Blackstone-CommentariesBk4.pdf

2 Found at https://lonang.com/wp-

content/download/Blackstone-CommentariesBk3.pdf

a14

by a subsequent amendment – the Equal Protection Clause of the

Fourteenth Amendment. See J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 146 (1994).

In this case, Appellant did not receive a trial by a jury as the

term was meant at the Sixth Amendment’s adoption, or at the time

of the Fourteenth Amendment for that matter, as he was not tried

by a jury of twelve. It is acknowledged that this Court has rejected

this argument. Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022).

The error is fundamental and structural, as the conviction

arose from a sheer denial of this fundamental right. Waiver of the

constitutional right of trial by the proper number of jurors must be

made personally by the defendant. See Blair v. State, 698 So. 2d

1210, 1217 (Fla. 1997) (finding valid defendant’s agreement to verdict by five-member jury valid when made “in a colloquy at issue

here, including a personal on-the-record waiver,” and sufficient to

pass muster under the federal and state constitutions,” and his decision was made “toward the end of his trial, after having ample

time to analyze the jury and assess the prosecution's case against

him. He affirmatively chose to proceed with a reduced jury as opposed to a continuance or starting with another jury.”). Such was

a15

not the case here. A new trial should be ordered before a jury of

twelve.

a16