NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
CLEO C. LEE
v. Appeal No. CRC 07-00062 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge James V. Pierce
Lynda B. Barack, Esquire
Attorney for Appellant
Moin H. Khan, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Cleo C. Lee’s, appeal from a conviction, after a jury trial, of Obtaining Food or Lodging with Intent to Defraud, second degree misdemeanor, in violation of § 509.151 Fla. Stat. (2006). After review of the record and the briefs, this Court reverses the judgment and sentence.
Factual Background and Trial Court Proceedings
On April 3, 2007, a Misdemeanor Information was filed charging the Appellant, Cleo C. Lee, with obtaining food or lodging with intent to defraud. The case proceeded to jury trial on June 28, 2007 and the Defendant was found guilty by the jury of the charged offense. The trial court adjudicated the Appellant guilty of the offense and placed her on six (6) months Salvation Army probation.
In the course of selecting the jury during the trial, the trial court denied Appellant’s proposed cause challenges to prospective jurors, Huston and Homzack. These two prospective jurors were not ultimately seated on the jury. When the Appellant exhausted her peremptory challenges, she moved the Court for two additional peremptory challenges to enable her to strike two additional jurors, Elias and D’Ambre. The trial court denied the Appellant’s motion for additional peremptory challenges and the prospective jurors Elias and D’Ambre were seated on the jury. At the conclusion of jury selection and before the jury was sworn, Appellant refused to accept the jury panel which was seated notwithstanding the objection of the Appellant.
Standard of Review
appellate court reviews a trial court's decision to deny a cause challenge to a
potential juror for an abuse of discretion.
Preserving the Issue for Appeal
State, 576 So.2d 691, 693 (
If the issue has been preserved, appellate courts review
the trial court's discretionary decision for manifest error. The appellate court examines the record,
keeping in mind that the trial court “has a unique vantage point in the
determination of juror bias” that is unavailable to an appellate court in the
record. When a defendant preserves a
cause challenge, he or she must demonstrate on appeal both that the trial court
erred in determining the juror's competency and that the denial of the
challenge caused prejudice. Where the
record demonstrates a reasonable doubt about a juror's ability to be impartial,
the trial court abused its discretion in denying the cause challenge. Carratelli, 961 So.2d at 319. Having
demonstrated error, the defendant must then show that the error requires
reversal. The “expenditure of a peremptory challenge to cure the trial
court's improper denial of a cause challenge constitutes reversible error if a
defendant exhausts all remaining peremptory challenges and can show that an
objectionable juror has served on the jury.” Busby v. State, 894 So.2d
88, 96-97 (Fla.2004), cert. denied, 545
The issue presented in the present case, is whether the trial court erred in refusing to strike prospective jurors, Huston and Homzack, for cause. In regard to the prospective juror Homzack, the record does not establish a basis to support a cause strike. Further the argument of counsel to the trial court does not establish any basis for such a cause strike. The trial court properly denied the proposed cause strike of the prospective juror Homzack.
In regard to the prospective juror Huston, the following exchange occurred during jury selection:
MS. FLEMING: And a couple of you through this have talked a little bit about, you know, the State has to prove their case. Tell me that everyone in here understands that it is up to the State to prove the allegations or the charges against Ms. Lee beyond, you know, beyond all reasonable doubt, and the State kind of touched on that.
What if I told you, Ms. Harris, that we, as the defense, didn’t have to do anything today? We don’t have to put on a witness, we don’t have to do anything, it’s up to the State. Are you okay with that? Is that comfortable for you?
MS. HARRIS: Yeah.
MS. FLEMING: Why?
MS. HARRIS: Because the State has to prove that they’re guilty, and they’re innocent until proven guilty.
MS. FLEMING: What about you?
UNIDENTIFIED SPEAKER: I agree.
MS. FLEMING: You agree? So if we just sat here today and put our feet up on the desk, and let the state do all the work, that’s perfectly acceptable, right? May not (indiscernible).
UNIDENTIFIED SPEAKER: That’s the way it works.
MS. FLEMING: Does anyone not agree with that? Does anyone that that we, as the defense, we have to prove something? Mr. Huston?
MR. HUSTON: I don’t think it would be fair for you guys to sit there and do nothing because there’s always rebuttal back and forth, you know. I’ve been in litigation with, you know, employees. Not litigation per se but, you know, I’ve been in management and have dealt with employees, and basically where we’re at today. You know, one person saying they did something, and one person saying they didn’t, and you always have to listen to both sides and make an educated decision and prove, you know, reasonable doubt.
MS. FLEMING: But is it the defense that has to prove that, or is it the State that has to prove that?
MR. HUSTON: Well, the State has to prove that the person’s guilty, but I think it’s kind of one-sided. If you guys are just, you know, doing, you know, making your case and you guys aren’t.
MS. FLEMING: So if we just sat –
MR. HUSTON: Because there could be facts and information that they don’t have or, you know, back and forth. There’s always room.
MS. FLEMING: So would it make you uncomfortable today if we didn’t do any of that?
MR. HUSTON: Yeah.
MS. FLEMING: Would you be more likely to find that she would be guilty if we didn’t do anything in this case today?
MR. HUSTON: Depending on how the facts were laid out.
MS. FLEMING: But there’s a possibility that if we didn’t do anything –
MR. HUSTON: Yes.
MS. FLEMING: I appreciate your honesty, sir.
MR. HUSTON: Sure.
(Record pages 85
to 87). Thereafter the prospective juror
Huston never said he could lay aside this bias and render a verdict solely upon
the evidence presented and the instructions on the law given by the court. The law is clear that it is “manifest error” to retain a juror who has stated that
he or she would require a defendant to present some evidence of innocence.
Based upon the foregoing, this court concludes that the judgment and sentence of the trial court should be reversed.
IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is reversed, and this matter remanded to the trial court for further action.
(ANDREWS, Judge, concurring)
Although I concur in the opinion, I write to express my concern with defense counsel’s question to the venire:
So if we just sat here today and put our feet
up on the desk, and let the state do all the work,
that’s perfectly acceptable, right?
The trial judge was absolutely correct to sustain the State’s objection to this question. As noted by the trial court, the question was ambiguous and understandably brought protestations from the venire. But it is unclear if some of the potential jurors were protesting the concept that the burden of proof is on the State and the defendant has no burden to prove anything, or if they were protesting the idea that defense counsel would be so unprofessional they would put their “feet up on the desk” and do absolutely nothing to make certain the state has proven its case in order to protect their client’s interest. Attorneys need to be more circumspect and clear in asking their questions of the venire.
Michael F. Andrews Circuit Court Judge
Raymond O. Gross
Circuit Court Judge
R. Timothy Peters
Circuit Court Judge
cc: Honorable James V. Pierce
Office of the State Attorney
Lynda B. Barack, Esquire