MARK C. CAMPBELL, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Marni A. Bryson, Judge; L.T. Case No.
Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for
appeal, we are asked to decide whether a trial court
reversibly erred by denying a challenge for cause against a
potential juror, even though that person was not ultimately
seated on the jury. Under the circumstances of this case, we
hold it was error, and reverse for a new trial.
Mark Campbell was charged with lewd or lascivious molestation
of a child over the age of twelve, but under sixteen; showing
obscene material to a child; and lewd or lascivious
exhibition in the presence of a child. During jury selection,
defense counsel asked if any juror agreed that children do
not lie about sexual abuse. One potential juror, a social
worker whose agency dealt with two high-profile pedophile
cases in another state, was specifically asked by counsel
about how she assessed the credibility of child witnesses.
She explained, "I would have to be honest in saying my
experience in thirty-five years in being a social worker, in
working with kids, my experience has been that kids
don't lie in instances of child abuse and child sexual
abuse. I can only talk about my experience."
trial court attempted to rehabilitate the juror, and advised
her that jurors are not supposed to imprint their experience
on jury instructions or the law. When asked if she could
follow the law, the juror stated she could. However, defense
counsel later asked all the prospective jurors to raise their
hand if they agreed that children do not lie about sexual
abuse, to which this particular juror responded that she
strongly agreed that children never lie about sexual abuse
and rated the strength of her opinion as a "nine out of
conclusion of voir dire, while arguing for cause challenges,
defense counsel moved to strike this juror because of her
candid reaction to the nature of the case and the feeling
that she would potentially find appellant guilty if he
decided not to testify. The trial court denied the challenge
for cause, and explained it had successfully rehabilitated
the entire jury pool by instructing them to consider and
assess the credibility of each witness, regardless of age, in
light of all the testimony and evidence presented during
counsel ultimately used a peremptory challenge on the social
worker and another juror after cause challenges against them
were also denied. Defense counsel then requested two
additional peremptory challenges to exercise against two
other specifically identified jurors, in place of the two
cause challenges that were denied. This request was rejected
by the trial court, and both of the identified jurors served
on the jury panel.
was found guilty of all three charges, sentenced to
twenty-five years in prison, and was designated a sexual
offender. This appeal followed.
standard of review of a trial court's ruling on a cause
challenge is one of abuse of discretion. . . . Abuse of
discretion occurs when the record reveals reason to doubt
impartiality." Ranglin v. State, 55 So.3d 744,
746 (Fla. 4th DCA 2011). The failure to strike a juror for
cause is not subject to a harmless error analysis. See
Bryant v. State, 765 So.2d 68, 69 (Fla. 4th DCA 2000).
general rule, denying a challenge for cause is not
prejudicial if the objectionable juror does not serve and is
not replaced by an objectionable juror. See Penn v.
State, 574 So.2d 1079, 1081 (Fla. 1991). An
objectionable 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." Croce v. State, 60 So.3d 582, 585
(Fla. 4th DCA 2011) (quoting Trotter v. State, 576
So.2d 691, 693 (Fla. 1990)).
Trotter, the defendant claimed the trial court erred
in failing to excuse four prospective jurors for cause, which
forced the defense to exercise four peremptory challenges to
remove them. 576 So.2d at 692. Trotter argued that he was
entitled to a new trial because he exhausted all peremptory
challenges and his request for an additional peremptory
challenge was denied. Id. The Florida Supreme Court
upheld Trotter's ...