FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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
Moody, Attorney General, Tallahassee, Florida, and Melanie
Dale Surber, Senior Assistant Attorney General, West Palm
Beach, Florida, for Petitioner
Haddad of Fred Haddad, P.A., Fort Lauderdale, Florida, for
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.").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.
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.
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.
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.
[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 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,
[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 ...