FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, George W. Maxwell
R. Reiter, Jordan S. Kosches, and Tiffany M. Walters, of
GrayRobinson, P.A., Miami, for Appellants.
Christopher V. Carlyle, of The Carlyle Appellate Law Firm,
Orlando, and O. John Alpizar and Andrew B. Pickett, of
Alpizar Law, LLC, Palm Bay, for Appellee, Michael Gallo.
Appearance for Appellee, Tyler R. Brock.
these consolidated appeals, Travelers Home and Marine
Insurance Company ("Travelers") challenges the
final judgment entered against it and in favor of the
insured, Michael J. Gallo ("Gallo"), after the jury
returned a verdict for Gallo on his uninsured/underinsured
motorist claim against Travelers. Travelers also contests the
separate final judgments awarding Gallo attorney's fees
under section 768.79, Florida Statutes (2014), and Florida
Rule of Civil Procedure 1.442 and taxing court costs. We find
merit in one of the four arguments raised by Travelers.
Concluding that the trial court erred in disallowing one of
Travelers' peremptory challenges, we reverse and remand
for a new trial.
peremptory challenge is one of the primary tools by which a
party removes an unfavorable juror from the jury panel.
Spencer v. State, 238 So.3d 708, 711 (Fla. 2018)
(citing Hayes v. State, 94 So.3d 452, 460 (Fla.
2012)). Traditionally, peremptory challenges, which are
limited in number, have been exercised "according to a
party's unfettered discretion, " id.
(quoting Hayes, 94 So.3d at 459), with the only
limitation being that they not be used to purposely
discriminate against members of a distinctive group by
excluding them from jury service. Id. (citing
Batson v. Kentucky, 476 U.S. 79, 97 (1986)). To
provide some clarity and direction to trial courts when faced
with the possibility that a party is exercising a peremptory
challenge in a purposely discriminatory manner, the Florida
Supreme Court established the following three-step process
and analysis to be applied under such circumstances (e.g.,
alleged racial discrimination):
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. If these initial
requirements are met (step 1), 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 (step 2). 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 (step 3). The
court's focus in step 3 is not on the reasonableness of
the explanation but rather its genuineness. Throughout the
process, the burden of persuasion never leaves the opponent
of the strike to prove purposeful racial discrimination.
Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996)
present case, following voir dire of the venire, Travelers
used a peremptory challenge to strike an African-American
female as a juror. Consistent with Step 1 of
Melbourne, Gallo's trial counsel timely
objected, placed on the record that the venireperson is a
member of a distinct racial group, and requested a
race-neutral reason for the strike. At that point, in an
effort to comply with Step 2, Travelers' counsel
explained that based upon his personal observations of the
prospective juror, he was striking her because she was
inattentive and did not appear engaged in the jury selection
process, thus giving counsel concern that if seated as a
juror, this individual would not be "focused, "
"pay attention, " and "actually consider the
evidence." At that point, and without requesting a
response from Gallo's counsel, the trial court determined
that Travelers' explanation or basis for the strike was
"legally insufficient." This, however, was
incorrect because much like verbal responses to questioning,
a juror's lack of interest, inattentiveness, or other
nonverbal behavior can constitute a racially neutral reason
(Step 2) for a peremptory strike. Dorsey v. State,
868 So.2d 1192, 1196 (Fla. 2003).
after the trial court found the strike to be legally
insufficient, Gallo's counsel placed on the record that
his observations of this juror "were completely opposite
of [Travelers'] counsel." This is not uncommon and
may simply illustrate that "[a] person's demeanor,
subjective as it is, is subject to more than one
interpretation." See People v. Munson, 662
N.E.2d 1265, 1275 (Ill. 1996). Under such circumstances, when
the parties disagree as to the existence of the nonverbal
behavior proffered as the basis for the peremptory challenge,
the only way that the proponent of the strike can satisfy the
burden of production of its race-neutral reason under
Melbourne's second step is "if the behavior
is observed by the trial court or otherwise has record
support." Dorsey, 868 So.2d at 1199.
Importantly, if this burden of production is
satisfied, then the proponent of the strike is entitled to
the presumption that the proffered race-neutral reason for
the strike based upon the juror's nonverbal behavior is
genuine (Step 3). Id. Conversely, if the potential
juror's nonverbal behavior is disputed by opposing
counsel and is not observed by the trial court nor
otherwise supported by the record, then the nonverbal
behavior is not a proper basis under Step 2 of
Melbourne to sustain a peremptory challenge as
genuinely race neutral. Id. at 1202-03; see also
Wright v. State, 586 So.2d 1024, 1029 (Fla. 1991)
(holding that "[p]eremptory challenges based on bare
looks and gestures are not acceptable reasons unless observed
by the trial judge and confirmed by the judge on the
after Gallo's counsel disagreed with Travelers'
assessment of the prospective juror's nonverbal behavior,
the trial court next commented that the juror was "not
particularly different" from other
"introverted" venirepersons that it sees on a
regular basis, but it specifically agreed with Travelers'
counsel's observation that this juror was "not
particularly engaged." Thus, under Dorsey,
Travelers, as the proponent of the strike, was entitled to
the presumption that its proffered reason for the strike was
genuine. The court further elaborated that Travelers'
counsel was "well-intentioned" in moving to strike
the juror and that it did not believe that counsel was
"making a race-based strike." The court reiterated
that it did not find counsel's explanation for the strike
to be "disingenuous" and that it would not
"disparage an attorney [who] attempts to make a strike
on a visibly less than active participant in the [jury
selection] process." The trial court nevertheless
reaffirmed its ruling that Travelers' reason for striking
the juror was legally insufficient, ...