Third District Court of Appeal
State of Florida
Opinion filed October 28, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-1485
Lower Tribunal No. F24-3402
Marvin Mesamours,
Appellant,
vs.
State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ariel
Rodriguez, Judge.
Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Camilo Montoya, Assistant Attorney General, for appellee.
Before SCALES, C.J., and MILLER, J., and KOENIG, Associate Judge.
MILLER, J.
THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY
FURTHER MOTION FOR REHEARING AND/OR MOTION FOR
REHEARING EN BANC. ANY PREVIOUSLY FILED MOTION FOR
REHEARING EN BANC IS DEEMED MOOT.
We grant rehearing, withdraw our opinion dated May 27, 2026, and
substitute the following opinion.
Appellant, Marvin Mesamours, appeals from his conviction and
sentence for resisting without violence, in violation of section 843.02, Florida
Statutes (2024). He raises several issues on appeal. Because it is
dispositive, we address only his claim that the trial court reversibly erred in
overruling a Melbourne challenge to the State’s peremptory strike of a
prospective juror. See Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
I
The facts are undisputed. Following a police chase, Mesamours was
arrested and charged by information with fleeing and eluding a law
enforcement officer and resisting without violence. The case proceeded to
a jury trial. Before jury selection, each prospective juror completed a written
questionnaire which was furnished to the parties. The venire included two
members relevant to this appeal, Jones, a Black female, and Montes, a nonBlack male.
During voir dire, the prosecutor asked Jones and Montes each a single
question. Jones was asked whether she remembered the typical color of
2
police lights; she answered, “red and blue.” Montes was asked, “what is
some evidence that you might expect to see showing that someone
purposely failed to stop a vehicle?” He responded, “[w]hen they just keep
driving . . . .”
Defense counsel asked whether the jurors would view police officers
as more credible than other witnesses. The following exchange ensued:
DEFENSE: [J]ust to get back to the questions about police
officers, I don’t think we had heard from you. How do you feel
about that? Do you think that, you know, police officers are any
more or less likely to lie or tell the truth than the average person?
PROSPECTIVE JUROR AZCUY: They’re going to lie like
everyone else.
DEFENSE: Okay. Okay. And Juror No. 14, Ms. Jones, how do
you feel about that?
PROSPECTIVE JUROR JONES: I feel the same as he just
stated.
DEFENSE: Okay.
PROSPECTIVE JUROR JONES: Police officers, they can lie just
the same. Their profession doesn’t make a difference.
DEFENSE: Okay. So, you wouldn’t be thinking, you know, just
from the start, that it’s more likely that they’re telling the truth than
anyone else?
PROSPECTIVE JUROR JONES: Correct.
The defense then informed the venire that the officers involved in the
case were the subject of an open misconduct investigation relating to a
3
shooting. Several jurors volunteered views on whether that fact would color
their assessment of the officers’ testimony. Jones was not among them.
During jury selection, the State exercised its first peremptory challenge
against Jones. The defense raised a Melbourne objection and requested a
race- and gender-neutral reason for the strike. The prosecutor proffered that
Jones had revealed that “[t]he officer’s credibility would be in question. It
was when counsel was questioning about the investigation of the
officer-involved shooting that the detectives are involved in. She stated that
the officer’s credibility would be in question.”
When the defense disputed this contention, the trial judge offered a
readback. The prosecutor declined it and changed course, offering instead
that Jones had previously served on a jury that reached a decision in a
criminal case. The defense objected anew, observing that this reason
applied equally to “other members of the panel . . . that are not [B]lack
females,” including Montes, an unchallenged juror. The trial court found the
second reason race-neutral and genuine, declined to rule on the first, and
overruled the objection, stating, “[B]ased on that, the State has given a
race-neutral reason on the second one that I find to be genuine and it will
be—I'm going to allow it, okay? As for the other point, I just don‘t know. I
don’t have a note. The only way I could really verify is going back on the
4
record, but based on the second one, I think I meet Melbourne. So, I'm going
to allow the strike.” The jury found Mesamours guilty of the resisting charge,
and this appeal ensued.
II
A
“The appropriate standard of appellate review for determining the
threshold question of whether there is a likelihood of racial discrimination in
the use of peremptory challenges is abuse of discretion.” Nowell v. State,
998 So. 2d 597, 602 (Fla. 2008). This discretion, however, is not boundless;
instead, it is closely circumscribed by precedent.
B
The peremptory challenge hails back to the common law. “Historically,
peremptory challenges allowed dismissal of a potential juror based on no
more than ‘sudden impressions and unaccountable prejudices we are apt to
conceive upon the bare looks and gestures of another.’” Jack Reiter &
Sydney Feldman, The Neil Inquiry: Navigating the Peremptory Process, Fla.
B.J., Nov. 2023, at 9 (quoting State v. Slappy, 522 So. 2d 18, 20 (Fla. 1988),
receded from on other grounds, Melbourne, 679 So. 2d 759 (quoting 4
William Blackstone, Commentaries 353 (1807)). This practice was rejected,
however, when the Florida Supreme Court decided State v. Neil, 457 So. 2d
5
481, 487 (Fla. 1984), holding that the exercise of a peremptory challenge
solely on the basis of race violates the right to trial by an impartial jury
guaranteed under article I, section 16 of the Florida Constitution.
Two years later, the United States Supreme Court issued its landmark
opinion in Batson v. Kentucky, 476 U.S. 79 (1986), holding that the Equal
Protection Clause of the United States Constitution forbids the exercise of
peremptory challenges on the basis of race. See U.S. Const. amend. XIV,
§ 1; Batson, 476 U.S. at 89. Batson explained that an attorney cannot justify
a peremptory challenge “merely by denying that he had a discriminatory
motive or ‘affirming his good faith in making individual selections.’” 476 U.S.
at 98 (citation modified). As the Court cautioned, “[i]f these general
assertions were accepted as rebutting the defendant’s prima facie case, the
Equal Protection Clause ‘would be but a vain and illusory requirement.’” Id.
(citation omitted).
After Batson, the Florida Supreme Court decided State v. Slappy, 522
So. 2d 18 (Fla. 1988). Slappy found that the test for evaluating peremptory
challenges requires a “clear and reasonably specific” race-neutral
explanation of “legitimate reasons.” Id. at 22 (quoting Batson, 476 U.S. at
96–98 & n.20). It also endorsed five nonexhaustive factors that weigh
against the legitimacy of a race-neutral explanation: “(1) alleged group bias
6
not shown to be shared by the juror in question, (2) failure to examine the
juror or perfunctory examination, assuming neither the trial court nor
opposing counsel had questioned the juror, (3) singling the juror out for
special questioning designed to evoke a certain response, (4) the
prosecutor’s reason is unrelated to the facts of the case, and (5) a challenge
based on reasons equally applicable to juror who were not challenged.” Id.
The United States Supreme Court later clarified the structure of the
inquiry in Purkett v. Elem, 514 U.S. 765 (1995), explaining,
Under our Batson jurisprudence, once the opponent of a
peremptory challenge has made out a prima facie case of racial
discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a race-neutral
explanation (step two). If a race-neutral explanation is tendered,
the trial court must then decide (step three) whether the
opponent of the strike has proved purposeful racial
discrimination. The second step of this process does not demand
an explanation that is persuasive, or even plausible. “At this
[second] step of the inquiry, the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will
be deemed race neutral.” . . .
In habeas proceedings in federal courts, the factual findings of
state courts are presumed to be correct, and may be set aside,
absent procedural error, only if they are “not fairly supported by
the record.” 28 U.S.C. § 2254(d)(8). Here the Court of Appeals
did not conclude or even attempt to conclude that the state
court’s finding of no racial motive was not fairly supported by the
record. For its whole focus was upon the reasonableness of the
asserted nonracial motive (which it thought required by step two)
rather than the genuineness of the motive. It gave no proper
7
basis for overturning the state court’s finding of no racial motive,
a finding which turned primarily on an assessment of credibility.
Id. at 767–69 (citations omitted).
The following year, in Melbourne, the Florida Supreme Court reduced
the Neil framework to a three-step procedure:
[1] A party objecting to the other side’s use of a peremptory
challenge on racial grounds must: a) make a timely objection on
that basis, b) show that the venireperson is a member of a
distinct racial group, and c) request that the court ask the striking
party its reason for the strike. [2] If these initial requirements are
met . . . the court must ask the proponent of the strike to explain
the reason for the strike.
At this point, the burden of production shifts to the proponent of
the strike to come forward with a race-neutral explanation . . . .
[3] If the explanation is facially race-neutral and the court
believes that, given all the circumstances surrounding the strike,
the explanation is not a pretext, the strike will be sustained . . . .
679 So. 2d at 764. “[T]hroughout this process,” the court emphasized, “the
burden of persuasion never leaves the opponent of the strike to prove
purposeful racial discrimination.” Id. Melbourne also receded from Slappy’s
requirement of a “reasonable” explanation in favor of a “genuine” one, while
noting that “[r]easonableness is simply one factor that a court may consider
in assessing genuineness.” Id. at 764 & n.9.
The governing principle since then has been consistent; a decision to
allow a peremptory strike will not be disturbed on appeal unless it is “clearly
erroneous.” Poole v. State, 151 So. 3d 402, 409 (Fla. 2014) (citing Nowell,
8
998 So. 2d at 602). To this end, we presume the peremptory challenge was
exercised in a nondiscriminatory manner. Id. And because genuineness
turns on credibility, we defer to “the superior vantage point of the trial judge,
who is present, can consider the demeanor of those involved, and can get a
feel for what is going on in the jury selection process.” Files v. State, 613
So. 2d 1301, 1305 (Fla. 1992); see also Pitchford v. Cain, 608 U.S. 391,
398–99 (2026) (“America’s trial judges operate at the front lines of American
justice, and the job of enforcing Batson rests first and foremost with trial
judges.” (quoting Flowers v. Mississippi, 588 U.S. 284, 302 (2019))) (internal
quotations omitted).
Deference, however, “does not imply abandonment or abdication of
judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The
presumption of nondiscrimination has yielded in a myriad of Florida cases
where the proffered reason for exercising a strike applied equally to an
unchallenged juror who was not a member of a distinct class. See Daniel v.
State, 697 So. 2d 959 (Fla. 2d DCA 1997); Brown v. State, 733 So. 2d 1128
(Fla. 4th DCA 1999); Hunter v. State, 225 So. 3d 838 (Fla. 4th DCA 2017);
Stroia v. State, 119 So. 3d 1274 (Fla. 4th DCA 2013).
In Overstreet v. State, 712 So. 2d 1174 (Fla. 3d DCA 1998), this court
applied the Slappy factors to reverse a conviction where the State’s reason
9
for striking an African American juror applied equally to an unchallenged nonAfrican American juror and the questioning of the stricken juror had been
perfunctory. Under Slappy, we explained, “[t]he presence of one or more of
these factors will tend to show that the proffered reason is an impermissible
pretext.” Id. at 1177 (citing Slappy, 522 So. 2d at 22). The circumstances
there made it “abundantly clear that the State’s proffered reason for [the]
strike was [de facto] disingenuous and pretextual.” Id.
C
Against this background, we turn to this case. The State’s first
proffered reason was that Jones had questioned the officers’ credibility when
she learned of the shooting investigation. The trial court never assessed the
genuineness of that proffer, and the State, rather than defend it, pivoted. Our
review is therefore confined to the reason the trial court accepted—that
Jones had served on a criminal jury that reached a verdict. That precise
reason applied equally to Montes, a non-Black male juror who was seated
on the jury; and the State struck Jones while holding five unused peremptory
challenges. This case thus falls squarely within the ambit of Overstreet.
Some Florida courts treat disparate treatment among equally situated
jurors as dispositive. See Smith v. State, 799 So. 2d 421, 424 (Fla. 5th DCA
2001) (“Florida courts have repeatedly held that it is racially discriminatory to
10
exercise a peremptory challenge against a prospective juror in the minority
where the proffered reason applies equally to a prospective juror in the
majority.”); Daniel, 697 So. 2d at 961 (“Where [the stricken juror’s] response
was shared by another juror who was not challenged by the prosecutor, the
trial court erred in failing to reject the state’s explanation as pretextual.”). Our
own approach is more measured. Disparate treatment is “a significant factor
. . . in considering whether the reason given by the State is pretextual.” Files,
613 So. 2d at 1304–05; see also Nowell, 998 So. 2d at 606 (holding the trial
court erred in allowing the State’s peremptory challenge because the State’s
proffered reasons “which may have appeared to be race-neutral, were
pretextual” where, among other things, the State’s proffered reason applied
equally to other jurors who were not challenged and ultimately served on the
jury); see also Norona v. State, 137 So. 3d 1096, 1097–98 (Fla. 3d DCA
2014) (“Circumstances relevant to the ‘genuineness’ inquiry include the
gender or racial make-up of the venire, prior strikes exercised against the
same gender or racial group, or singling out the juror for special treatment.”)
(citation omitted). We must therefore consider next under our precedent
whether the State attempted to distinguish the similarly situated jurors and
whether the strike implicated other Slappy factors.
11
Here, the State did not attempt to distinguish Jones from Montes, and
the strike did implicate two additional Slappy factors. The asserted reason
had nothing to do with the facts of the case, and Jones was asked but a
single question on a topic unrelated to her prior jury service—the color of
police lights. See Slappy, 522 So. 2d at 22; Files, 613 So. 2d at 304–05
(“[A]llowing other white jurors with similar characteristics to remain on the
jury is a significant factor that must be considered by the trial judge in
considering whether the reason given by the State is pretextual.”); see also
Miller-El v. Dretke, 545 U.S. 231, 246 (“[T]he State’s failure to engage in any
meaningful voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explanation is a sham and
a pretext for discrimination.” (quoting Ex parte Travis, 776 So. 2d 874, 881
(Ala. 2000))). If the prior jury service troubled the State, one would expect
questioning on the topic or Montes to have been stricken, as well. But neither
occurred. Under Overstreet, this scenario warrants a finding of pretext.
We do not pretend that jury selection is a science. “[P]eremptories are
often the subjects of instinct, and it can sometimes be hard to say what the
reason is.” Miller-El, 545 U.S. at 252 (citation omitted). And, as the dissent
aptly observes, the trial court could have credited any number of
considerations in allowing the strike. But “could have” does not equate with
12
“did.” The State offered its first rationale, declined the opportunity to verify
it, and abandoned it for the second. As an error-correcting court, rather than
a factfinding one, we must heed the Supreme Court’s caution that “a
prosecutor simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives . . . If the stated reason does
not hold up, its pretextual significance does not fade because a trial judge,
or an appeals court, can imagine a reason that might not have been shown
up as false.” Miller-El, 545 U.S. at 252.
In closing, the dissent urges us to affirm on a justification that the trial
court never ruled upon and the State declined to defend. If a strike survives
on any after-the-fact rationalization that the appellate court can glean from
the record, the genuineness inquiry becomes a mere formality. Any
prosecutor can bypass it with a post-hoc rationale, rendering the Melbourne
framework, in the words of Batson, “vain and illusory.” Accordingly, we are
constrained to reverse and remand for a new trial, consistent with Overstreet.
Reversed and remanded.
13
Marvin Mesamours v. State of Florida
3D24-1485
SCALES, C.J., concurring in result.
I concur in the reversal of Mesamours’s conviction because I believe
our review is limited to whether the trial court erred in adjudicating the State’s
second proffered race-neutral reason for striking Juror Jones, i.e., that Juror
Jones had previously served on a jury. While Juror Jones had previously
served on a jury, so had Juror Montes, a white male, whom the State did not
strike. Thus, I agree with the majority that our opinion in Overstreet controls.
Before giving its “prior juror service” response to Mesamours’s
Melbourne objection to the strike of Juror Jones, though, the State did proffer
what could have been a valid, race-neutral reason for striking Juror Jones:
she questioned the credibility of police witnesses. During voir dire, Juror
Jones agreed with another potential juror’s comment that police witnesses
“lie like everybody else.” When further questioned, Juror Jones stated,
“Police officers, they can lie just the same. Their profession doesn’t make a
difference.”
After the State proffered this initial reason for its strike of Juror Jones,
the trial court’s notes did not reflect this response, and the State declined the
trial court’s invitation for a read-back of Juror Jones’s voir dire responses.
14
The State then pivoted1 and proffered its problematic “prior jury service”
rationale for the strike. The trial court expressly accepted this rationale.2
Thus, the trial court never conducted a Melbourne inquiry regarding,
nor did he ever adjudicate, the genuineness of the State’s “police witness
credibility” justification for the strike. Without citation to authority, the State
suggests that this Court, in the first instance, can conduct the genuineness
inquiry of the State’s first proffered reason required by Melbourne and its
progeny.
But the required genuineness inquiry necessarily involves demeanor
assessments and credibility determinations of a potential juror (and counsel).
As the majority notes, the trial court, not the appellate court, is in a better
position to conduct the required Melbourne inquiry, which is essentially a
fact-finding function.
1
On this record, reasonable people can disagree as to whether the State “abandoned” or, rather, as the dissent suggests, simply “supplemented” its first reason for striking Juror Jones. In my view, though, this issue is academic. Irrespective of the characterization of the State’s second rationale for the strike, it is undisputed and the record plainly reflects that the State did not obtain from the trial court a specific genuineness ruling on its first reason. 2
“The State has given a race-neutral reason on the second one that I find to be genuine – I’m going to allow it. As for the other point, I just don't know. I don’t have a note. The only way I could really verify is going back on the record, but based on the second one, I think I meet Melbourne. So, I’m going to allow the strike.”
15
Under the now three-decades-old Melbourne construct, the
adjudication in the first instance of whether a proffered reason for a
peremptory strike is genuine or pretextual is a function of the trial court. And,
while I find the dissent’s rationale tempting, and agree that the State’s first
proffered reason for exercising a peremptory strike on Juror Jones likely
satisfied Melbourne’s strictures, I am uncomfortable veering into what is
clearly the trial court’s lane to make that determination in the first instance.
16
Marvin Mesamours v. State of Florida
3D24-1485
KOENIG, Associate Judge, dissenting.
The Majority concludes that the trial court did not assess the credibility
of the first proffered reason, police credibility, for the peremptory strike on
Juror Jones, and that the trial court based its decision exclusively on the
second proffered reason, that Juror Jones served on a criminal jury that
reached a verdict. However, the record before us does not support this
determination. The Majority also contends that the State abandoned its first
rationale when it is clear in the record that it did not. After a review of all
relevant circumstances, including voir dire as a whole, the record does not
demonstrate that the trial court clearly erred in finding that Juror Jones was
not stricken on the basis of race. Two race-neutral reasons were given for
the strike, one of which, police credibility, was unique to Juror Jones, making
this case distinguishable from Overstreet.
Appellant has the burden of establishing that the trial court erred.
Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996). On review,
“peremptories are presumed to be exercised in a nondiscriminatory manner,”
and the trial court’s genuineness determination “turns primarily on an
assessment of credibility and will be affirmed on appeal unless clearly
erroneous.” Id. at 764-65. Applying these principles to the present case,
17
Appellant has not established that the trial court did not consider the
circumstances of the initial strike when considering the genuineness of the
later, additional strike. The record simply belies Appellant’s contention that
this is so.
The resolution of this case centers on resolving competing principles
established by the significant body of case law dealing with the subject
matter involved. The principle that requires the appellate court to consider all
circumstances surrounding a peremptory strike of a juror within the analysis
framework of Melbourne, Slappy, and Overstreet is pitted against whether
the first reason for the strike is to be considered at all when the trial court did
not determine on the record the genuineness of the race neutral reason
given. Put another way, is the appellate court to consider the facts and
circumstances of the reason given for the first strike at all, without
determining the genuineness of it in the first instance?
Tensions between other principles exist such as holding the prosecutor
accountable for not doing more to pursue the first reason given for the strike,
juxtaposed against the principles of deference to the trial court in these
determinations, absent clear error on the part of the trial court. The principle
of considering all facts and circumstances makes an appearance here as
well, as does the principle of all courts “staying in their lane”, not to mention
18
the overarching principle of the pursuit of truth and justice. The challenge
for this court, on this record, is to apply the applicable principles and give the
proper weight to them, as appropriate, based on the applicable law.
At the end of the day, the decision comes down to whether the trial
court properly determined that racial discrimination was not the State’s
motivation for striking Juror Jones. The totality of the record before us clearly
establishes that the State was not motivated by racial discrimination when it
moved to strike Juror Jones. The record establishes legitimate race neutral
reasons for striking her when they are properly considered together, and the
record before us does not clearly establish that the trial court did not consider
them together when reaching its decision.
The record shows that during jury selection, the State attempted to
exercise its first peremptory strike on Juror Jones because she questioned
the credibility of police witnesses. During voir dire, another prospective juror,
Juror Azcuy, was asked, “[d]o you think that, you know, police officers are
any more or less likely to lie or tell the truth than the average person?”
Prospective Juror Azcuy responded: “They’re going to lie like everybody
else.” Juror Jones said she felt the same way and stated: “Police officers,
they can lie just the same. Their profession doesn’t make a difference.”
19
When attempting to exercise the peremptory strike, the State was
mistaken, only as to when, during voir dire, Juror Jones stated that the
officer’s credibility would be in question, and neither defense counsel nor the
court had notes to support this contention. In the interest of time, the State
gave the court a second, additional race-neutral reason for its request to
exercise a peremptory challenge to strike Juror Jones. Counsel stated: “The
State will provide a second reason, Judge. She served on a criminal jury in
the past that reached a decision. The State feels as though that’s an
additional basis for a peremptory challenge.” (emphasis added).
The Majority concludes that the State abandoned its first argument
about police credibility and stood solely on its second. The record does not
support these conclusions. The record shows that the second, additional
proffered race-neutral reason for the strike, prior jury service, was offered to
supplement, rather than supplant, the race-neutral officer credibility rationale
as a basis for granting the peremptory strike. Counsel for the State
specifically stated the second basis was an additional basis for the trial court
to consider. Despite this record, the Majority contends that the State
“pivoted” from the initial proffer and “changed course”. Isolating the first
reason and all the facts and circumstances of it, placing it in a sealed box,
20
never to be heard from again, is the only way the Majority opinion holds up
under scrutiny.
The Majority opines that the trial court never conducted a Melbourne
inquiry regarding, nor did it adjudicate, the genuineness of the State’s police
witness credibility justification for the strike, and therefore this Court cannot
conduct the genuineness inquiry of the State’s first proffered reason in the
first instance. It is true that only the trial court can determine the genuineness
of the strike, but considering the circumstance of the initial strike is not akin
to determining the genuineness of it in the first instance. We need only
consider that the reason was given, and that the record supports that the voir
dire exchange that occurred is consistent with the prosecutor’s stated race
neutral basis for the strike.
In order for the appellate court to conclude that the trial court rejected
the initial strike for lack of genuineness, it must be clear from the record, and
in this case it is not. The record simply does not support the conclusion that
the trial court rejected the police credibility reason initially proffered by the
State as being disingenuous; the court simply could not locate a reference
to it in the notes taken during voir dire. The court stated: “As for the other
point, I just don't know. I don’t have a note. The only way I could really verify
is going back on the record, but based on the second one, I think I meet
21
Melbourne. So, I’m going to allow the strike.” The trial court “not knowing”,
or not being able to verify, is not a rejection of the State’s initial police officer
credibility reason for the peremptory strike. In fact, the record also shows
that the trial court did not question the sincerity of the State’s explanation
that officer credibility was being offered as a genuine reason for the
peremptory strike. The court stated: “I’m not discounting what you said---is
whether she actually said it …. I’m not second guessing it. I’m just saying I
don’t know whether she said it. I don’t have that recollection.” (emphasis
added). These statements demonstrate that the trial court assessed the
credibility of the first proffered reason for the strike, and nothing in the record
indicates that the trial court discounted the genuineness of the police witness
credibility as justification for the peremptory strike of Juror Jones.
Appellant has not established that the trial court did not consider the
circumstances of the initial strike when considering the genuineness of the
later, additional strike. Nevertheless, the Majority confines its review solely
to the one proffered reason for the strike, the fact that Juror Jones previously
served on a criminal jury that reached a verdict, to conclude that the reason
for striking Juror Jones applied equally to Juror Montes, a white male who
had also sat on a criminal jury, to make a finding of pretext under Overstreet,
as opposed to applying the proper legal standard of considering all of the
22
circumstances surrounding the strike. Although the Majority opinion
suggests two additional Slappy factors, these factors would not hold up but
for the isolation of the second proffered reason to the exclusion of all other
circumstances surrounding the strike of Juror Jones, including the first
reason given. The second reason given was disconnected from the facts of
the case, but the first reason was central to the facts of the case. The single
question unrelated to Juror Jones’ prior jury service was related to the first
proffered reason given, namely police credibility. When viewed in light of all
circumstances surrounding the strike, these two factors do not apply. The
entirety of the Majority opinion rests on the assertion that the State
abandoned its first proffered reason. Without it, the argument regarding the
two additional Slappy factors caves in on itself. It is ironic that both additional
factors relate to the first proffered reason for the strike, which is the reason
the Majority has refused to consider, because of their belief, in contrast with
the record, that it was abandoned by the State.
A challenge based on reasons equally applicable to jurors who were
not challenged is a factor in considering whether the reason given by the
State is pretextual. Overstreet v. State, 712 So. 2d 1174, 1177 (Fla. 3d DCA
1998) (citing State v. Slappy, 522 So. 2d 18, 22 (Fla. 1988) (emphasis
added). Although a strike based on a reason equally applicable to an
23
unchallenged juror is one factor which courts have found relevant to the
genuineness inquiry, “the court should consider all relevant circumstances
surrounding the strike.” Melbourne, 679 So. 2d at 764 (emphasis added). In
a Melbourne analysis, the circumstance of a juror being similarly situated to
another, where one is a member of a protected class and the other is not,
and the former is stricken and the latter is not, is only one factor considered
by the trial court in determining whether the strike is a pretext for
discrimination or whether it is genuine. However, the Majority opinion
excludes all other factors and circumstances surrounding the strike of Juror
Jones except for the one factor cited in Overstreet as one of the factors to
be considered along with all other circumstances surrounding the strike. The
result is to turn the Overstreet decision into a bright line, hard and fast rule
that striking a juror who is similarly situated to another, where the former is
a member of a protected class and the latter is not, is a pretext for
discrimination, per se. Applying the Majority opinion, trial courts will look no
further and consider nothing else. That is neither a sound nor proper
application of the Overstreet decision or of the considerable body of case
law on this subject.
After reviewing all relevant circumstances as we must, this case is
distinguishable from Overstreet because the proffered reasons for exercising
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a peremptory challenge against Juror Jones do not apply equally to Juror
Montes. Although both prospective jurors previously served on juries, the
State’s initial explanation that it was striking Juror Jones because of her
beliefs regarding police credibility is supported by the record. Juror Montes
did not weigh in on the exchange during voir dire regarding whether police
officers would lie, nor did he otherwise express beliefs about police officer
credibility. No other juror kept by the State was similarly situated to Juror
Jones in her feelings about a police officer’s ability to lie.
Based on the record before us, we cannot say that the trial court only
considered the second reason, prior jury service, to the exclusion of
everything else that happened during voir dire. We cannot presume that the
trial court did not take the police officer credibility proffer into account in
determining that the peremptory strike against Juror Jones was nonpretextual and genuine. Two race-neutral reasons were given for the
exercise of the peremptory challenge of Juror Jones, and when reviewing all
the relevant circumstances, the record does not demonstrate that the trial
court clearly erred in finding that Juror Jones was not stricken on the basis
of race.
It defies logic and reason as well as basic principles of fairness, to say
that the prosecutor was motivated by racial discrimination when it is clear
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from this record that this entire issue originated with the prosecutor focusing
on whether Juror Jones could be fair and impartial when considering the
testimony of law enforcement. The concurring opinion acknowledges that
the State did proffer what could have been a valid, race-neutral reason for
striking Juror Jones: she questioned the credibility of police witnesses. This
is clearly reflected in the record, and ignoring this results in an unfair
characterization of the prosecutor’s motives.
Although the trial court did not make specific findings with respect to
each of the prosecutor’s proffered grounds, “when the grounds for a trial
court’s decision are ambiguous, an appellate court should not presume that
the lower court based its decision on an improper ground, particularly when
applying a deferential standard of review.” Snyder v. Louisiana, 552 U.S.
472, 487 (2008) (Thomas, J. dissenting). “Given the trial court’s expertise in
making credibility determinations and its firsthand knowledge of the voir dire
exchanges, it is entirely proper to defer to its judgment.” Id. at 490 (Thomas,
J. dissenting). The record does not establish clear error by the trial court in
allowing the strike, and thus, the trial court’s determination should be left
undisturbed. Accordingly, I would defer to the trial court and affirm the
judgment below.
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