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Pacchiana v. State

Florida Court of Appeals, Fourth District

February 14, 2018


         Not final until disposition of timely filed motion for rehearing

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 08-3720CF10C.

          Fred Haddad of Haddad & Navarro, PLLC, Fort Lauderdale, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Saber, Assistant Attorney General, West Palm Beach, for appellee.

          Levine, J.

         In this 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.

         First, 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.

         The 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.

         A trial 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).

         During 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."

         In 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.

         The 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."

         The 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 answered "yes."

         During 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 up.
[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 based strike.
[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, Jehovah Witness.
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 wouldn't-
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 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?
[THE STATE]: The reason. I'm asking, I want to make sure-whatever the Judge says the law is-
[THE STATE]: Okay.
THE COURT: Any questions from the Defense?
. . . .
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 else.
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 neutral reason.
[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 panel.
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 course.
THE COURT: Yes, it'll be a joint motion. I think we talked about that before, [defense ...

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