final until disposition of timely filed motion for rehearing
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
Haddad of Haddad & Navarro, PLLC, Fort Lauderdale, for
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Saber, Assistant Attorney General, West Palm Beach, for
case, the state and the trial court ratified the striking of
a potential juror based not on her views, but merely because
of her membership in a particular religious group. For this
reason and for the reasons stated below, we reverse.
the trial court should not have found the state's reason
for the strike to be genuine and race-neutral because the
state did not question the juror regarding her religion
before exercising the strike and, even after questioning,
nothing in the record showed her religion would prevent her
from being a fair and impartial juror. Second, even if the
strike were genuinely based on the juror's religion, a
member of a religion that is a cognizable class is protected
from being struck from a jury based solely on her faith where
there is no evidence that her faith would prevent her from
being a fair and impartial juror. Third, striking a potential
juror based entirely on her particular religious affiliation,
without any evidence that her religion would prevent her from
being fair and impartial juror, is an impermissible
"religious test" in violation of the United States
and Florida Constitutions.
state charged appellant and codefendants with first-degree
murder and conspiracy to commit first-degree murder. After a
joint trial, the jury found appellant guilty as charged. The
trial court sentenced appellant to life imprisonment.
Appellant raises several issues on appeal, including that the
trial court erred in granting a peremptory strike of a
prospective juror. Because we find this issue dispositive, we
need not address the other issues.
court's decision on whether a peremptory strike has been
exercised in a racially discriminatory manner will be
affirmed on appeal unless clearly erroneous. Melbourne v.
State, 679 So.2d 759, 764-65 (Fla. 1996).
voir dire, the prospective juror at issue, who is black,
completed a juror questionnaire answering questions
concerning her occupation, previous juror experience, and the
like. On that questionnaire, she listed her hobbies as
"reading, witnessing a Jehovah Witness."
response to the court's questioning during voir dire, the
prospective juror stated that she had worked in customer
service, that she was not currently working, and that she
wanted to serve on the jury. She was previously on a civil
jury that reached a verdict for the plaintiff. She had been
the victim of a burglary and her brother was in jail for
armed robbery, but that would not impact her ability to be
fair and impartial in this case. She confirmed that she was
able to serve, that she wanted to serve, and that she would
do a good job as a juror.
prospective juror agreed with various hypotheticals presented
by the prosecutor, acknowledging that it was reasonable to
conclude that a "pen is a pen" by looking at it and
that one can tell what a puzzle is a picture of from 90
pieces out of 100. She also agreed that a description of a
woman in a white flowing gown and a man with a smile on his
face was a description of a wedding and not a funeral. When
the prosecutor asked how the state proves its case, she
answered "in documentation from another
professional." She confirmed she understood that the
burden of proof was with the state. She agreed that based on
new information from one witness, she might disbelieve the
testimony of a previous witness. She also agreed that it is
natural to begin deciding whether someone is believable while
that person is testifying. When defense counsel asked whether
first impressions are correct, she responded,
"Sometimes, sometimes not."
fact that this case involved guns did not cause any issues
for her. No one in her house owned or possessed a handgun,
nor had she ever shot a handgun. None of her family or close
friends had ever been a victim of handgun violence. When
asked if she could envision a situation where a person may
legally and lawfully shoot someone who is unarmed, she
jury selection, the state used a peremptory challenge to
strike the prospective juror. The following then transpired:
[DEFENSE COUNSEL]: Can we get a race neutral reason?
[THE STATE]: She's a Jehovah Witness. I've
never had one say, and I highlighted it, they've always
said they can't sit in judgment. She never brought it
[DEFENSE COUNSEL]: She did.
[THE STATE]: No, but she put at the bottom that she's a
Jehovah Witness, that gives me pause.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: That's a religious
[THE STATE]: You can say that but that's-for 20 years,
[defense counsel for co-defendant] knows, any one of them
that's been practicing they've always said that. Now
maybe she's less-
[DEFENSE COUNSEL FOR CO-DEFENDANT]: She reads Jehovah stuff,
she doesn't say she's a practicing Jehovah Witness.
THE COURT: Let's bring in [the prospective juror]. . . .
[Prospective juror], if you wouldn't mind having a seat
in the front row, we have a question I want to ask you. You
indicated in your questionnaire that you're a Witness,
[PROSPECTIVE JUROR]: Yes.
THE COURT: How would that affect your ability to be fair in
this case? We've had them before. Do you have any
religious beliefs that would prevent you from being fair and
impartial in this case?
[PROSPECTIVE JUROR]: If the evidence that's provided to
me is clear cut and concise I would be able to. If my ruling
THE COURT: In light of my questions, [prosecutor]?
[THE STATE]: So there's no prohibition, and honestly I
don't know enough about religion, and I don't mean
that disrespectfully, but I want to make sure that you as an
individual, whatever your beliefs are, there's nothing
preventing you from sitting in judgment of a case, because
that's really what you're doing, you're judging
whether we've proven our case or not. You can do that?
[PROSPECTIVE JUROR]: I can, and before I believe it was Judge
Levenson who said that we would not be making the sentencing.
THE COURT: How do you feel about that?
[PROSPECTIVE JUROR]: I'm okay with that.
THE COURT: Okay.
[THE STATE]: The fact that you said that, if you were
involved - I'm taking it to mean, and maybe I'm
wrong, if you're involved in sentencing then you are
saying you wouldn't be sitting?
[PROSPECTIVE JUROR]: Then I would say no.
[THE STATE]: You realize your decision here if, in fact,
you're to vote -
[DEFENSE COUNSEL FOR CO-DEFENDANT]: I object to any further
questions with this juror.
THE COURT: Overruled.
[THE STATE]: If, in fact, you know, you vote that it's
proven, you have nothing to do with sentencing but the Judge
would based on your decision saying it's proven.
[PROSPECTIVE JUROR]: If the State gives me all the evidence
that I can see where you can show me that these individuals
did this act, then I-can make a decision on that and based on
the decision that you provide me.
[THE STATE]: Well, we don't provide you with a decision.
[PROSPECTIVE JUROR]: Well, the evidence that I'm given.
[THE STATE]: Yes, ma'am. You said all the evidence.
You can do that beyond a reasonable doubt?
[PROSPECTIVE JUROR]: Yes.
[THE STATE]: The reason. I'm asking, I want to make
sure-whatever the Judge says the law is-
[PROSPECTIVE JUROR]: Right.
[THE STATE]: Okay.
THE COURT: Any questions from the Defense?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: None.
. . . .
THE COURT: Thank you, ma'am. Record reflect that the
juror's [sic] have left the courtroom and the door is
closed. What say you, [prosecutor]?
[THE STATE]: My reason is unchanged, I don't believe I
can meet her burden. I can meet my burden beyond a reasonable
doubt but I cannot meet her burden and that's a concern
to me and it has nothing to do with religion or anything
THE COURT: Let me hear from the Defense.
[DEFENSE COUNSEL]: We object to her being challenged for
cause, then he's going to have to come up with a race
[THE STATE]: This is a peremptory.
THE COURT: Over the Defense objection I find that the record
sufficiently supports a race neutral reason because of the
concern about her responses to the questions. So over your
objection it'll be granted.
[DEFENSE COUNSEL]: You need to, I think the law requires you
to put on the record what the race and reason is.
THE COURT: Well, he-
[THE STATE]: I believe I did that.
THE COURT: Tell me.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: If the Court is making
the ruling-so the Court has already made the statement, you
find a race neutral reason. We're asking the Court to
follow the law and to tell us what that race neutral reason
is that's already affected your decision, that's all.
THE COURT: Okay, that's fair enough. Listen,
she's a Jehovah Witness, I think there was some
discussion about her and the issue of the sentencing part of
it, she did waiver [sic] along the way there.
Look, if it were me making a decision, me perceiving it
differently, but out of deference to the person who is the
moving party, as long as there's some reason, or
suggestion based on her responses and overall nature of
her-and plus I think alternatively, additionally I want to
point out I know it's a blind record but there's a
number of other African Americans on the jury, I think that
based on the totality of the circumstances I think it rises
to the legal of a non based reason. I understand your point
though, it is well taken. Do you want to respond?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: Yes, we move to strike
THE COURT: Based on?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: Based on the Court
depriving us of a juror that we think should be seated.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: We all join in, of
THE COURT: Yes, it'll be a joint motion. I think we
talked about that before, [defense ...