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State v. Pacchiana

Supreme Court of Florida

January 9, 2020



          Application for Review of the Decision of the District Court of Appeal - Constitutional Construction/Direct Conflict of Decisions Fourth District - Case No. 4D15-3340 (Broward County)

          Ashley Moody, Attorney General, Tallahassee, Florida, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, Florida, for Petitioner

          Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, Florida, for Respondent

          CANADY, C.J.

         This case is before the Court for review of the decision of the Fourth District Court of Appeal in Pacchiana v. State, 240 So.3d 803 (Fla. 4th DCA 2018), which held that a peremptory strike was constitutionally impermissible because it was based on the prospective juror's religion. The Fourth District's decision was based in part on its conclusion that the peremptory strike involved an unconstitutional religious test. See art. VI, cl. 3, U.S. Const. ("[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."); see also art. I, § 2, Fla. Const. ("Basic rights.- . . . No person shall be deprived of any right because of race, religion, national origin, or physical disability."); art I, § 3, Fla. Const. ("Religious freedom.-There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.").[1]Because in reaching this conclusion the district court expressly construed provisions of the United States and Florida Constitutions, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

         But we do not decide the issue of the constitutionality of a religion-based strike. Instead, we conclude that the issue was not properly preserved in the trial court and that the district court erred in reversing on the basis of an unpreserved argument. We therefore quash the decision of the district court in Pacchiana and remand for further proceedings in accordance with this opinion.

         I. BACKGROUND

         John Pacchiana and his codefendants, Michael and Christin Bilotti, were charged with first-degree murder and conspiracy to commit first-degree murder. After a joint trial, the jury found Pacchiana guilty as charged, and he was sentenced to life imprisonment. On appeal to the Fourth District, Pacchiana argued that the trial court erred in allowing a peremptory strike of a prospective juror. This prospective juror was both black and a Jehovah's Witness.

         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? (Emphasis supplied.)
[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 CODEFENDANT]: That's a religious based strike. (Emphasis supplied.)
[THE STATE]: You can say that but that's-for 20 years, [defense counsel for codefendant] knows, any one of them that's been practicing they've always said that. Now maybe she's less-
[DEFENSE COUNSEL FOR CODEFENDANT]: 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 ...

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