By LARRY KELLER
Palm Beach Post Staff Writer
Friday, May 23, 2008
WEST PALM BEACH — The conviction of Jose Tapanes for manslaughter was thrown into doubt this week after a juror contacted his lawyer to report possible juror misconduct.
Tapanes, 63, was charged with first-degree murder and convicted May 16 of manslaughter with a firearm in the shotgun September 2006 slaying of his new neighbor in The Acreage, Christopher Cote, 19. He faces up to 30 years in prison. Sentencing is scheduled for June 9.
Tapanes' attorney, Public Defender Carey Haughwout, asked Circuit Judge Charles Burton to allow jurors to be interviewed, and she also asked for a new trial, saying the verdict was not consistent with the evidence presented at trial.
Burton didn't rule on the motions in order that the state attorney's office can do some research and respond. Another hearing was set for Thursday.
"This is potentially a long drawn-out thing," Burton said, who asked if attorneys could reach a plea agreement rather than have a possible retrial. "It's not first-degree murder any more and there is only so much that can happen," he said.
Haughwout says she was contacted by juror Adele Favorito of Boca Raton after the trial ended. Favorito told her the jury favored acquitting Tapanes by an 8-4 margin, but unanimously voted for a compromise verdict of manslaughter after jury foreperson Todd Underwood - who is related to a judge in another state - said the defendant would face only two years of confinement, or time served if convicted of manslaughter.
If true, Haughwout argued in a motion, "it constitutes an agreement to disregard the law that requires jurors not to consider sentencing as part of their deliberations. An agreement to disregard the jury instructions constitutes misconduct for which a new trial may be granted."
Reached by telephone Friday, Underwood denied Favorito's assertion about him. "I had nothing to say about any punishment," he said.
Favorito also told Haughwout that jurors debated the meaning of the word "prudence" during deliberations and that Underwood used his i-phone during a recess to look up an Internet dictionary definition which the panel then relied upon.
If true, that would violate a prohibition of unauthorized materials being taken into the jury room, Haughwout said.
Assistant State Attorney Andy Slater said in closing arguments that Tapanes did not act as a "reasonable, prudent person" would have when he failed to call 911, and when he opened his door after an angry Cote started knocking on it after a 3 a.m. argument between the two men.
Underwood confirmed that jurors discussed the meaning of prudent or prudence, but declined to say if he provided an online dictionary definition.
"A lot of (Favorito's) information is incorrect, or partial truth in a way," he said. "This is crazy. She was a very interesting person."
Judge Burton said the compromise verdict issue raised by Favorito merely sounds like "juror remorse. I think if you polled juries, maybe 70 percent of them are talking about what's going to happen to the guy."
The judge said the dictionary allegation, however, is of greater concern.
In addition to possible juror misconduct, Haughwout also is seeking a new trial on grounds that the evidence presented at trial didn't support a manslaughter verdict. Among the reasons she cited was the testimony of the medical examiner who said it was impossible for Tapanes to have shot Cote in the abdomen in the way that a key state witness described.
"The prosecution did not prove beyond a reasonable doubt that Mr. Tapanes did not act in self-defense," Haughwout wrote in her motion for a new trial.