Filing # 58120631 E-Filed 06/22/2017 01:04:59 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,

IN AND FOR PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION W

CASE NO: 2009CF009771AMB

STATE OF FLORIDA

vs.

DALIA DIPPOLITO,
Defendant
/

MOTION TO PERMIT JURY INTERVIEWS and MOTION FOR NEW TRIAL

Pursuant to Florida Rule of Criminal Procedure 3.575, the Defendant, Dalia Dippolito,

through undersigned counsel, respectfully moves this Honorable Court to enter an order

permitting the interview of alternate juror Nichole Taquisha Spells, alternate juror Nickens

Aubin, juror Eileen Ann Castaneda, and any other juror the Court believes may have information

pertaining to Juror Castaneda sleeping during critical testimony in the trial. Following these

interviews, pursuant to the Fifth, Sixth, and Fourteenth Amendments of the United States

Constitution, Article I, sections 2, 9, 16, and 22, of the Florida Constitution, and Florida Rules of

Criminal Procedure 3.580, 3.590(a), and 3.600(b)(6) and (8), the Defendant moves this

Honorable Court to grant a new trial in the abovementioned case. This Motion should be granted

because this Court erred in denying both defense counsels motion to remove Ms. Castaneda for

sleeping and to replace her with an alternate juror and defense counsels request for the Court to

question the alternate jurors before deliberation. In doing so, the Court deprived Ms. Dippolito

of a fair and impartial trial by jurors who were attentive to the evidence presented.

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 Facts

The Defendant, Dalia Dippolito, was charged by Information with solicitation to commit

first degree murder with a firearm. On June 2, 2017, this Court commenced jury selection. On

June 7, 2017, this Court empanelled a jury of six jurors and two alternate jurors.

During the course of the trial, several people in the courtroom observed juror Eileen Ann

Castaneda sleeping during critical testimony in the trial. Most notably, parties noticed her

sleeping during the testimony of the confidential informant, Mohamed Shihadeh, and expert

witness, Tim Williams. Some of the witnesses observed the alternate jurors waking Juror

Castaneda up at one point during the trial.

On June 15, 2017, defense counsel filed a Motion to Remove Juror for Sleeping and

Replace with Alternate Juror (DE #1414). In the event that the Court did not see her sleeping,

defense counsel requested that this court individually question the two alternates. The following

people provided sworn affidavits regarding Juror Castaneda: Greg Rosenfeld, Nathalie Vallejos

(Brian Claypools legal assistant), Kimberly Mayorga (Greg Rosenfelds legal assistant), Dalia

Dippolito, Randa Mohammed (Dalia Dippolitos mother), and Charles Claypool (Brian

Claypools brother) (DE #1440, 1441, 1443, 1444, 1445, 1446). Exhibit 1. Defense counsel

anticipates an affidavit from Tim Williams, who saw the juror sleeping while he testified.

On June 16, 2017, the Court denied the Motion and refused to question the alternate

jurors. The Court claimed that he was watching Juror Castaneda throughout the trial and that she

was not sleeping. The Court did not deny that her eyes were closed, but instead claimed she was

in some sort of contemplative state.1

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As this Motion was litigated at the bench during trial, defense counsel asks this Court rely on the CD of
the hearing, which defense counsel will provide upon receipt from Court Reporting. The Motion was
litigated at approximately 1:48pm. Defense counsel wants to ensure that this Court is accurately quoted.
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 The jury subsequently found Ms. Dippolito guilty as charged. Defense counsel reserves

the right to amend the facts of this Motion on additional information ascertained from subsequent

interviews conducted on the Jurors, should the Court permit such interviews.

Argument

The Court should grant juror interviews of alternate juror Nichole Taquisha Spells,

alternate juror Nickens Aubin, juror Eileen Ann Castaneda, and any other juror the Court

believes may have information pertaining to Juror Castaneda sleeping during critical testimony

in the trial. Florida Rule of Criminal Procedure 3.575, titled Motion to Interview Juror, permits a

party to move to interview jurors to determine if a verdict is subject to legal challenge:

A party who has reason to believe that the verdict may be subject to legal
challenge may move the court for an order permitting an interview of a juror or
jurors to so determine. The motion shall be filed within 10 day after the rendition
of the verdict, unless good cause is shown for the failure to make the motion
within that time. The motion shall state the name of any juror to be interviewed
and the reasons that the party has to believe that the verdict may be subject to
challenge. After notice and hearing, the trial judge, upon a finding that the verdict
may be subject to challenge, shall enter an order permitting the interview, and
setting therein a time and place for the interview of the juror or jurors, which shall
be conducted in the presence of the court and the parties. If no reason is found to
believe that the verdict may be subject to challenge, the court shall enter its order
denying permission to interview.

The instant Motion meets the requirements of the rule insofar as it is timely filed and it states the

names currently known to defense counsel as jurors that may have information regarding the

reason that the verdict is subject to challenge. See Ramirez v. State, 922 So. 2d 386, 388 (Fla. 1st

DCA 2006). Further, a request under Rule 3.575 does not require sworn affidavits in support of

the motion to interview jurors. Gray v. State, 72 So. 3d 336, 337 (Fla. 4th DCA 2011).

Pursuant to the Sixth Amendment of the United States Constitution and Article I, section

22, of the Florida Constitution, a Defendant has a constitutional right to a trial by jury with at

least six jurors, guaranteed by both the Florida and United States Constitution. Blair v. State,

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667 So. 2d 834, 836 (Fla. 4th DCA 1996), decision approved, 698 So. 2d 1210 (Fla. 1997). A

defendants right to a jury trial is undisputably one of the most basic rights guaranteed by our

constitution. Id. (quoting State v. Griffith, 561 So. 2d 528 (Fla. 1990)). While a trial court does

have discretion in dealing with problems with jurors, a trial court has the duty to insure that a

defendant receives a fair and impartial trial and that jurors who are attentive to the evidence

presented. Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1980) (emphasis added) (citing

Walker v. State, 330 So. 2d 110, 112 (Fla. 3d DCA 1976)).

Trial courts routinely replace jurors with alternates. See Blair, 667 So. 2d at 836; see

also Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1980). Factors relevant in determining

whether replacement is warranted include the length of time the juror was sleeping and whether

any evidence or testimony was presented during the slumber. Bullis v. State, 734 So. 2d 463,

464 (Fla. 5th DCA 1999); Insignares v. State, 957 So. 2d 680 (3d DCA 2007). A defendant can

establish prejudice where the juror was sleeping during important testimony for the defense.

Bieser v. State, 677 So. 2d 59, 59 (Fla. 1st DCA 1996) (per curiam).

In the instant case, several people saw a juror sleeping through the trial. Defense

counsels expert witness observed her sleeping during his testimony. Defense counsel saw her

sleeping during the direct examination of the confidential informant. Other members of the

audience observed the same juror sleeping during testimony of witnesses.

There are sworn affidavits from six people that this juror was sleeping during crucial

testimony. These people include attorneys, a former court employee, the Defendant, and family

members. In addition to the sworn affidavits, defense counsel is waiting on a seventh affidavit

from the expert witness. This Court empanelled six jurors and two alternates. The purpose of

empanelling two alternates is to ensure that a defendant receives a fair and impartial trial.

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 The Court found that the juror was not sleeping based on its own observations. The

Courts observations are concerning, as the Court recognized some conspicuous behavior on

behalf of Juror Castaneda. Even the most astute jurist is prone to error and misperception, and in

light of the fact that seven other people observed Juror Castaneda sleeping, and some of the

witnesses observed the two alternate jurors waking her up, defense counsel cannot rationalize

why this Court did not replace Juror Castaneda with one of the alternates, or at the very least,

question the alternates.

A trial by a fair and impartial jury is a fundamental constitutional right. This Court has

the responsibility of protecting Ms. Dippolitos constitutional rights by insuring that Ms.

Dippolito receives a fair and impartial trial by attentive jurors. A court must, out of necessity,

error on the side of protecting a defendants due process rights.

The purpose of having alternate jurors is to prevent situations such as this. Replacing

Juror Castaneda with an alternate juror, or in the alternative, questioning the alternate jurors,

would have protected Ms. Dippolitos constitutional rights. The Court failed to do so. Rule

3.575 provides the Court with the opportunity to rectify this constitutional violation. Neither

party is prejudiced by interviewing the jurors. To the contrary, Ms. Dippolito is prejudiced if

this Court does not question the jurors.

As such, defense counsel requests that an Order be entered by the Court to require that

alternate juror Nichole Taquisha Spells, alternate juror Nickens Aubin, juror Eileen Ann

Castaneda, and any other juror the Court believes may have information pertaining to Juror

Castaneda sleeping be interviewed regarding Juror Castaneda sleeping. Defense counsel

requests that the interview take place in the presence of both parties. The following questions

are appropriate based on the information alleged in the affidavits:

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 1. Was Juror Eileen Castaneda sleeping at any point during the trial?

2. Do you remember when she was sleeping?

3. Was there any discussion out of Court about her sleeping?

4. For the alternates Did you have to wake up Ms. Castaneda at any point during the trial?

Do you remember when this was?

WHEREFORE, for the foregoing reasons and for any other reasons that may appear to

the Honorable Court, Ms. Dippolito respectfully requests that this Court permit the parties to

interview the jurors, and following the interviews, grant a new trial.

Respectfully submitted,

/s/ Greg Rosenfeld

GREG ROSENFELD, ESQ.
Florida Bar No.: 0092006
LAW OFFICES OF GREG ROSENFELD, P.A.
515 N. Flagler Drive, Suite P-300
West Palm Beach, FL 33401
(561) 409-5804
greg@rosenfeldlegal.com

/s/ Andrew Greenlee

ANDREW B. GREENLEE, ESQ.
Florida Bar No.: 0096365
ANDREW B. GREENLEE, P.A.
401 E. 1st Street, Unit 261
Sanford, FL 32772
(407) 808-6411
andrew@andrewgreenleelaw.com

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 /s/ Brian Claypool
BRIAN E. CLAYPOOL, ESQ.
California Bar No.: 134674
Pro Hac Vice No.: 116999
CLAYPOOL LAW FIRM
4 East Holly Street, Suite 201
Pasadena, California 91103
Telephone: (626) 345-5480
brian@claypoollawfirm.com
Attorney Pro Hac Vice for the Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy hereof has been furnished by e-file to

Laura Laurie, Assistant State Attorney, and Craig Williams, Assistant State Attorney, on this

22nd day of June, 2017.

/s/ Greg Rosenfeld

Greg Rosenfeld, Esq.
Law Offices of Greg Rosenfeld, P.A.

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EXHIBIT 1