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McCray v. State

Supreme Court of Florida

May 25, 2017

MOSES MCCRAY, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions Fourth District - Case No. 4D14-907 (Palm Beach County)

          Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio, Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, Florida, for Respondent

          PARIENTE, J.

         We have for review McCray v. State, 199 So.3d 1006 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal certified conflict with the Third District Court of Appeal's decision in McIntosh v. State, 743 So.2d 155 (Fla. 3d DCA 1999), "to the extent the results of [McCray] . . . may be perceived to conflict with McIntosh." McCray, 199 So.3d at 1010. We accepted jurisdiction based on this certified conflict. See art. V, § 3(b)(4), Fla. Const.

         The issue in this case involves the exercise of peremptory challenges in jury selection and whether a party has the right to "unstrike, " or withdraw a previously exercised peremptory challenge, when it has exhausted its peremptory challenges and the opposing party subsequently accepts the jury panel.

         We agree with the Fourth District that the trial court did not abuse its discretion in denying Petitioner Moses McCray's request to "unstrike" a juror under the circumstances presented. However, we disapprove the Fourth District's decision to the extent that it endorses a blanket rule prohibiting the withdrawal of a peremptory challenge after a party has exhausted its peremptory challenges. As we explain, McIntosh demonstrates that the withdrawal of a peremptory challenge when a party has already exhausted its peremptory challenges could be warranted by unusual or extenuating circumstances. We emphasize, however, that even though a party may exercise an unused peremptory challenge at any time before the jury is sworn and a trial court has discretion to grant additional peremptory challenges, the party does not have a "right" to "unstrike" a juror.

         FACTS

         The Fourth District set forth the discussions that occurred during voir dire between the trial court, the parties, and Juror 3.9-the juror McCray sought to remove from the jury panel after exercising his last remaining peremptory challenge on Juror 2.5:

JUROR 3.9: My name . . . I live in Lake Worth. My occupation, I'm working for school district. I'm a driver. I'm married. My wife is (indiscernible). I do have three children. They are high school. I have never been served jury before.[1]
COURT: Is that a no?
JUROR 3.9: No. I have never been in crime victim of any crime. I don't have any friends in law enforcement. And I will follow the law explained. And yes, I will give fair trial to both sides. And no reason I cannot serve.
STATE: [Juror 3.9], how are you?
JUROR 3.9: Fine.
STATE: Good. We have several folks here that have nice accents and I can kind of tell from some individuals having served on prior jury service or their answers that there was no issue with language. But I wanted to check with you to see you have a nice accent but I want to make sure are you understanding everything that we're saying?
JUROR 3.9: Yes.
STATE: Excellent. No language problem if you were to serve on the jury?
JUROR 3.9: No.
The defense did not ask Juror 3.9 any direct questions.
During the parties' initial round of cause challenges, the defendant did not challenge Juror 3.9 for cause.
During the parties' peremptory strikes, the defendant used his last peremptory strike on Juror 2.5. That strike put Juror 3.9 "in the box" as the sixth juror. The state, which had two peremptory strikes remaining, accepted the panel, including Juror 3.9.
The defendant then stated he wanted to challenge Juror 3.9 for cause because he had "a serious question about [Juror 3.9's] ...

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