County Criminal Court : Criminal Procedure - Jurors - Trial court should have stricken prospective juror for cause where juror indicated he would require the defendant to put on some evidence of innocence. Judgment and sentence reversed. Lee v. State, No. CRC 07-62 APANO ( Fla. 6^th Cir.App.Ct. May 30, 2008).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

CLEO C. LEE

Appellant,

v. Appeal No. CRC 07-00062 APANO

UCN522007AP000062XXXXCR

STATE OF FLORIDA

Appellee.

__________________________________/

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

(PETERS, Judge)

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

An appellate court reviews a trial court's decision to deny a cause challenge to a potential juror for an abuse of discretion. Moore v. State, 939 So.2d 1116, 1118 (Fla. 3d DCA 2006). The competency of a juror presents a mixed question of law and fact, the resolution of which is within the trial court's discretion and will not be disturbed on appeal without a showing of manifest error. Mobley v. State, 774 So.2d 782 (Fla. 2^nd DCA 2000); See Smith v. State, 699 So.2d 629, 636 (Fla.1997); Wells v. State, 766 So.2d 1129 (Fla. 2d DCA 2000). “Manifest error” is tantamount to an abuse of discretion. Johnson v. State, 969 So.2d 938 (Fla. 2007). The test for determining juror competency is “whether the juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions on the law given by the court.” Mobley, 774 So.2d 782, 783. While the decision to accept or dismiss a putative juror is considered an exercise in discretion, the seating of a juror as to whom there is a reasonable doubt concerning impartiality is an abuse of discretion and thus “manifest error”. Carratelli v. State, 961 So.2d 312, 319 (Fla. 2007).

Preserving the Issue for Appeal

When a defendant believes a challenge for cause has been improperly denied there are several procedural requirements to preserve the issue for appeal.

Under Florida law, “[t]o show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted.” Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989). By this we mean the following. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted. The defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial.

Trotter v. State, 576 So.2d 691, 693 (Fla. 1990); See also Thomas v. State, 958 So2d 1047 (Fla. 2^nd DCA 2007).

Appellate Review

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 U.S. 1150, 125 S.Ct. 2976, 162 L.Ed.2d 906 (2005). The juror who served need not have been excusable for cause. A defendant need only show “the same type of harm [peremptory] challenges are intended to cure-the seating of a juror whom the defendant suspects, but cannot prove, is biased.” Id. at 100-01.

The Present Case

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. Hamilton v. State, 547 So2d 630, 632-33 (Fla. 1989); Cottrell v. State, 930 So2d 827, 829 (Fla. 4^th DCA 2006); Williams v. State, 755 So2d 714, 716 (Fla. 4^th DCA 1999). “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Hill v. State, 477 So.2d 553, 556 (Fla. 1985). “A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Ault v. State, 866 So.2d 674, 683 (Fla.2003). In close cases, any doubt as to a juror's competency should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality. Thomas, 958 So2d at 1050; Segura v. State, 921 So.2d 765, 766 (Fla. 3d DCA 2006). The trial court erred in not excusing the prospective juror Huston for cause. The Appellant preserved the issue for appeal.

Conclusion

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.

ORDERED at Clearwater, Pinellas County, Florida this ____ day of May, 2008.

_____________________________

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