IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SHAWNEST ANGELO IVEY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5803
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 13, 2017.
An appeal from the Circuit Court for Jackson County.
Shonna Young Gay, Judge.
Andy Thomas, Public Defender, Jennifer P. LaVia, Special Public Defender, for
Appellant.
Pamela Jo Bondi, Attorney General, Michael McDermott, Assistant Attorney
General, for Appellee.
MAKAR, J.
Shawnest Angelo Ivey, who was convicted of possession of XLR11
(commonly referred to as K2, Spice, or Synthetic Marijuana) and methamphetamine,
argues that the trial court erred in allowing a peremptory challenge to strike an
African-American juror where the State’s race-neutral reason—that the juror gave
the prosecutor a dirty look—was neither observed by the trial court nor supported
by the record. We agree and reverse. 1
I. Background
Juror number 46 is an African-American woman. During jury selection,
neither the State nor defense counsel questioned her other than to ask whether she
was employed (she said yes). After the close of voir dire, but before finalizing the
jury, the prosecutor informed the trial court that the State wanted to use a peremptory
strike on the potential juror. In response, defense counsel requested a race-neutral
reason for the strike because juror number 46 was the only African-American on the
jury panel.
According to the prosecutor, the basis for the peremptory strike was that she
had made a joke about the potential juror during a break in jury selection between a
prior case and Ivey’s case. She said the potential juror overheard her and then gave
“a look” that the prosecutor believed reflected bias against her. Neither the trial
judge, defense counsel, nor anyone else observed the described encounter; nor was
there any record evidence to establish “the look” other than the prosecutor’s
statement. The trial court accepted the State’s proffered reason for the strike as race-
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As to Ivey’s claim that the trial court erred in denying his motion to suppress his
statements to police, we affirm.
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neutral and removed juror number 46 from further consideration.
Immediately thereafter, the trial court asked the State and defense counsel if
they were agreeable to the jury members who had been selected. Defense counsel
said he went over the entire panel with Ivey, who said he “agrees and accepts this
jury.” Just prior to swearing the jury, however, the trial court and defense counsel
had the following exchange:
Court: The only additional thing is looking at my seating chart for
jury selection yesterday, I had seated for juror number 46, and
just for record purposes, wanted to make sure she was not a
cause, she was a peremptory challenge. And there was a
challenge race neutral reason given, and she was excused
based on the state using a peremptory challenge. With that, is
there anything else we need to address this morning before
we bring the jury in?
Defense: Your Honor, the only thing other than—everything you said
is fine. What I would like to do, I’ve made a few objection in
preliminary proceedings and objected to evidence and
objected to different things. I would like to just make that as
a continuing objection, so they don’t come back and say we
failed to object in the trial.
Court: I will just state for record purposed [sic], any ruling that has
already been made by me, I recognized [defense counsel’s]
continue [sic] objections, that has been the ruling that has
been made by the Court.
The jury was sworn and Ivey was later found guilty on the possession charges. On
appeal, he argues that the trial court erred in allowing the State to use its peremptory
strike on the potential juror.
II. Analysis
At the outset, the State does not argue that the trial judge’s substantive ruling
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on the State’s peremptory strike was correct, probably because it is directly contrary
to Dorsey v. State, 868 So. 2d 1192 (Fla. 2003), which held that a proponent of a
peremptory strike “based on nonverbal behavior may satisfy its burden of production
of a race-neutral reason . . . only if the behavior is observed by the trial court or
otherwise has record support.” Id. at 1199. Here, “the look” was neither observed by
the trial judge nor does it have record support (other than the prosecutor’s say-so,
which Dorsey says is inadequate). As such, the State makes two preservation
arguments: (a) Ivey failed to dispute the factual basis of the race-neutral reason
offered by the State, and (b) Ivey failed to renew his objection prior to the jury being
sworn.
A. Dorsey – Footnote 3
First, the State argues that the challenge to its peremptory strike is unpreserved
because defense counsel did not challenge the factual basis for the State’s proffered
race-neutral reason, citing a footnote in Dorsey that the genuineness of a race-neutral
reason offered by a party “does not arise where the opponent does not dispute the
observation proffered as the reason for the strike.” 868 So. 2d at 1196 n.3. The
footnoted language, however, relates to situations—such as in Dorsey—in which the
nonverbal behavior occurs where the judge and defense counsel are physically
present and able to observe it, which was not the case here.
The issue in Dorsey was “whether a party’s observation of a juror’s nonverbal
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behavior may constitute a genuine, race-neutral reason for a peremptory challenge
when the purported behavior is challenged by the opposing party and was neither
observed by the trial court nor otherwise supported by the record.” Id. at 1194.
In Dorsey, the prosecutor believed that a prospective juror showed a lack of interest
during attorney questioning and moved to strike her on that basis; defense counsel
disagreed and countered that the prospective juror was the only one who showed
interest and enthusiasm for being on the jury. Id. The trial judge, who was present
throughout juror questioning, did not observe the alleged indifference, but took the
prosecutor “at her word” in claiming it occurred, thereby upholding the strike. Id. at
1194-95. The supreme court overturned that ruling, holding that the record must
have support—other than the prosecutor’s own perception of the nonverbal
conduct—to meet the burden imposed under Melbourne v. State, 679 So. 2d 759
(Fla. 1996), and its progeny. Dorsey, 868 So. 2d at 1200.
The supreme court in Dorsey rejected the view that the testimony of the
prosecutor was itself sufficient, even when the judge and others are present, saying,
“if the proponent of a strike were permitted to meet its burden of production based
solely on an attorney’s subjective, uncorroborated, and disputed impression of a
juror’s demeanor, the appellate court would have no basis to determine if the trial
court’s decision to accept the explanation was clearly erroneous.” Id. at 1200. Ivey’s
counsel made a similar point, saying, “[t]he only thing we have is [the prosecutor]
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telling us this at sidebar what happened and I have no way to show that this—I just
don’t think it’s a race neutral reason in the record and that’s what she has to have.”
As is evident, the situation in Dorsey involved a prosecutor’s interpretation of
events that occurred during voir dire, where defense counsel was present and had an
observable basis for disagreeing with the prosecutor’s assertion. That is why the
supreme court in Dorsey cited both Watson v. State, 841 So. 2d 659 (Fla. 4th DCA
2003) and Carter v. State, 762 So. 2d 1024 (Fla. 3d DCA 2000), each involving juror
behavior that was observed in the courtroom during the jury selection process. Under
those circumstances, if defense counsel is present, observes the juror’s nonverbal
conduct, and “does not dispute the observation proffered as the reason for the strike,”
the admonition in footnote three would apply. 868 So. 2d at 1196 n.3.
Unlike Dorsey, however, neither the trial judge nor the defense counsel in
Ivey’s case were present when juror number 46 allegedly gave “the look” that the
prosecutor says occurred. For this reason, Ivey’s counsel could not have disputed the
prosecutor’s unilateral claim that the juror gave her the stink-eye during a break in
the proceedings. Indeed, Ivey’s counsel pointed out that the prosecutor failed to raise
“the look” until late in the jury selection process, making it doubly difficult to assess
the matter (“if [the prosecutor] thought that that was a problem, she should have
brought it up during voir dire where we could have addressed it”).
Because defense counsel did not have the benefit of observing the juror’s
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nonverbal behavior, it was impossible for him to object to the factual basis for the
prosecutor’s assertion. As such, defense counsel was not required to disagree with
the prosecutor’s subjective interpretation of events under Dorsey.
B.
The State also argues that Ivey failed to preserve the issue for review because
his “continuing objection” prior to the jury being sworn was inadequate, relying
on Mobley v. State, 100 So. 3d 1170 (Fla. 1st DCA 2012). Ivey counters that the
“continuing objection” was made directly in response to the trial judge confirming
for record purposes the various objections raised, including the strike of juror
number 46, which the trial court specifically raised and discussed.
This case differs from Mobley because the race-neutral reason offered
in Mobley was based, at least in part, on interactions with the juror that occurred
during voir dire, and was therefore on the record with defense counsel present. The
State in Mobley offered a valid race-neutral reason for its strike, such that it was
entitled to the presumption that its peremptory challenge was used in a
nondiscriminatory manner; defense counsel was then required to “voic[e] a specific
objection that the reason [was] not genuine or [was] not a pretext.” Id. at 1172. The
defendant in Mobley did neither—thereby failing to meet his burden to rebut the
presumption to which the State was entitled for having offered a valid race-neutral
reason. In this case, however, the State is not entitled to that presumption because
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the reason it offered was facially invalid under Dorsey: the nonverbal conduct of
juror number 46 was neither witnessed by the trial court nor had record support,
apart from the prosecutor’s unilateral belief. See Dorsey 868 So. 2d at 1199.
This case is more similar to Denis v. State, 137 So. 3d 583 (Fla. 4th DCA
2014), where defense counsel objected to the State’s use of a peremptory challenge,
and the State’s race-neutral justification offered for the strike was that the juror was
“dozing off while the judge was speaking.” Id. at 584. Defense counsel didn’t
observe the juror dozing and asked the trial judge whether he had witnessed it; the
judge said he did not, but that that he would “take [the State]’s word for it” and
upheld the strike. Id. In reversing, the Fourth District noted that “[p]reservation of
an objection to the use of a peremptory strike requires more than one objection: an
objection to initiate a Melbourne inquiry and another objection before the jury is
sworn in.” Id. at 585. As to the initiating objection, it held that the defendant had
sufficiently preserved the issue for review by contesting the factual basis for the
State’s race-neutral reason because he “inform[ed] the court that defense counsel did
not see the juror fall asleep and ask[ed] the court to address whether it witnessed this
behavior.” Id. at 585. This, the Fourth District stated, was enough to put the trial
court “on notice that defense counsel questioned the genuineness of the state’s
reason for the challenge.” Id. As to confirming the objection before the jury was
sworn, the appellate court noted that “[i]n addition to making a proper objection to
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initiate a Melbourne inquiry, defense counsel preserved her objection to the state’s
peremptory challenge before the jury was sworn by accepting the jury ‘subject to
prior objections.’” Id.
Here, Ivey’s counsel timely raised an objection to the State’s improper
peremptory challenge and sufficiently confirmed that objection just prior to the jury
being sworn in response to the trial judge’s specific reference to the “juror number
46” issue. No doubt exists that the trial court knew of and was apprised of the
specifics of Ivey’s objection prior to the swearing of the jury, which was far different
from the situation in Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993), where defense
counsel “affirmatively accepted the jury immediately prior to its being sworn
without reservation of his earlier-made objection.” No affirmative acceptance was
made immediatley prior to the jury being sworn that amounted to Ivey’s counsel
jettisoning his prior objections; instead, he renewed them in direct response to the
trial court’s inquiry. Because the State’s stated reason was insufficient on its face
under Dorsey, and Ivey adequately preserved the issue, we reverse and remand for
a new trial.
REVERSE and REMAND.
BROWN, JOHN, ASSOCIATE JUDGE, concurs, and WINSOR, J. concurs in part
and dissents in part with opinion.
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WINSOR, J., concurring in part and dissenting in part.
I agree that we should affirm as to the trial court’s order denying Ivey’s motion
to suppress. I would also affirm as to the disputed peremptory challenge because
Ivey failed to preserve it.
After raising the objection initially, Ivey’s counsel affirmatively told the court
that Ivey “agrees and accepts this jury.” Counsel’s acceptance of the jury would lead
“to a reasonable assumption that he had abandoned, for whatever reason, his earlier
objection.” Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). The only question is
whether counsel’s discussion with the court the following day was sufficient to re-
raise the issue. In the exchange, which the majority accurately recites in full, counsel
said he’d “made a few objection (sic) in preliminary proceedings and objected to
evidence and objected to different things.” He then said he “would like to just make
that as a continuing objection.” That was not enough.
Reiterating objections to unspecified “different things” does not preserve a
specific objection to a peremptory challenge. Up to the point of his general objection,
Ivey had argued an unsuccessful motion in limine, an unsuccessful motion to
dismiss, and an unsuccessful motion to suppress (which included an evidentiary
hearing with contested evidentiary rulings). If Ivey sought to renew an objection on
the peremptory issue, he needed more specificity. Cf. Harrell v. State, 894 So. 2d
935, 940 (Fla. 2005) (noting that statutory requirement that objections be
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“sufficiently precise” to “fairly apprise[] the trial court of the relief sought and the
grounds therefor,” § 924.051(1)(b), Fla. Stat., is consistent with Florida Supreme
Court holdings on preservation). Because Ivey did not specifically renew his
abandoned objection before the jury was sworn, his claim is not preserved. See Zack
v. State, 911 So. 2d 1190, 1204 (Fla. 2005). I would therefore affirm.
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