Andrew Darryl Busby v. State Of Florida
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Supreme Court of Florida
____________
No. SC02-1364
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ANDREW DARRYL BUSBY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[November 4, 2004]
REVISED OPINION
PER CURIAM.
Andrew Darryl Busby appeals his conviction of first-degree murder and
sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Based
on our determination that the trial court committed reversible error in the denial of
a challenge for cause, we reverse the conviction and vacate the sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Although the reversal today renders the evidence, procedures, findings, and
facts a total nullity, the facts and proceedings upon which the jury error operated in
this case are important for analysis of the error and its impact. Busby was
convicted of the July 3, 2000, first-degree murder of Elton Ard. Ard was a fellow
inmate of Busby's at the Columbia Correctional Institution (CCI). Ard was
Busby's cellmate and was one of seven potential victims targeted by Busby and
another inmate, Charles Globe. Evidence ascertained during trial indicated that the
pair targeted Ard because he was harassing Busby.
On the morning of July 3, 2000, Ard was found dead in the cell he shared
with Busby. Busby and Globe were also locked in the cell. An autopsy revealed
that Ard had died from strangulation. In trial testimony, the medical examiner
stated that Ard had injuries consistent with blunt force blows to his head, which did
not contribute to his death. A garrote found in the cell was consistent with the
pattern of bruising found on Ard's neck. Evidence recovered from the murder
scene included a handwritten sign, photographs of writings on the prison wall, the
magic marker used to make the writings, photographs of bloody fingerprints, a
cigarette lighter found in Ard's hand, and a cigarette found in Ard's mouth.
After a series of interviews beginning around noon on July 3, 2000, both
Busby and Globe confessed to killing Ard. At trial, the prosecution relied on
Busby's July 3 statement as well as subsequent statements in which Busby revealed
the sequence of events that transpired the night Ard was murdered. Busby did not
testify in his own defense, but submitted a videotaped statement given by Globe in
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which Globe asserted responsibility for Ard's death.1 The defense also offered the
testimony of a jailhouse friend of Busby's who stated that Busby was small in
stature and had been subjected to harassment while in prison.
On March 22, 2002, after the close of the evidence, instructions, and
arguments by counsel, the jury found Busby guilty of first-degree murder. The
penalty phase commenced during which both the prosecution and defense
submitted evidence. At the close of the penalty phase, the jury voted eleven to one
to recommend the death penalty. On May 16, 2002, the trial court followed the
jury's recommendation and sentenced Busby to death.
The trial court found four statutory aggravating factors2 and no statutory
mitigating factors, and listed fifty-four nonstatutory mitigating factors that were
1. The State also proffered testimony from State Attorney's Office
Investigator Lisa Long, who stated that she saw Busby make hand gestures to
Globe during the videotaping of Globe's testimony. Outside the presence of the
jury, Busby testified that he had signed the word "liar" to Globe. On crossexamination, Busby stated that he had called Globe a liar when Globe said that he
acted alone in murdering Ard. The State presented Long's testimony to the jury
and read to the jury the transcript of Busby's testimony concerning the "liar" sign.
Busby then presented surrebuttal testimony from Globe that he did not see Busby's
hand gestures, and even if he had, it would not have affected his testimony.
2. These aggravating factors are: (1) crime committed while previously
convicted of a felony and under sentence of imprisonment; (2) prior conviction of a
felony involving the use or threat of violence; (3) heinous, atrocious, or cruel
(HAC); and (4) cold, calculated, and premeditated (CCP).
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presented by the defense.3 The court noted that some of the nonstatutory
mitigating factors were repetitious and stated that each of the aggravating factors in
3. The trial court identified the following possibly mitigating factors
presented by the defense: (1) age at time of crime; (2) loved by family; (3)
emotional handicaps; (4) witness to domestic violence; (5) deprived childhood; (6)
poor upbringing; (7) cooperation with law enforcement; (8) first incarcerated at a
young age; (9) sexual abuse by biological father; (10) physical abuse by biological
father; (11) abandonment by family; (12) witnessed mother engage in prostitution
by luring in truckers on CB; (13) placed in position as prey to sexual predators in
prison; (14) abandoned by foster care parents; (15) attempted suicide at six years of
age and admitted into hospital as a result of such; (16) witnessed sexual abuse of
sisters by father; (17) witnessed sister on sister sexual abuse; (18) sexually abused
by sister's boyfriend; (19) suffered sexual abuse from sister; (20) witnessed
physical abuse by father upon mother; (21) witnessed physical abuse by father
upon sisters; (22) witnessed physical abuse by mother upon sisters; (23) mother's
continued denial of abuse and attempts to shift blame; (24) mother's constant
criticism and blame which destroyed self-esteem; (25) suffered institutional neglect
while in care of the Department of Health and Rehabilitative Services; (26)
suffered sexual harassment as a result of institutional neglect of Department of
Corrections while in prison; (27) trauma of deprivation of love and nurturing
(particularly in formative years); (28) artistic ability; (29) learning disabled; (30)
chaotic and violent childhood; (31) sexually harassed in prison; (32) impaired
mental capacity; (33) good work habits; (34) loyal, devoted, and kind to adopted
father; (35) small in stature which led to inmate sexual abuse; (36) heartache and
sadness in life; (37) voluntary confession in this case; (38) codefendant caused
death of victim; (39) poor judgment and impulsive behavior; (40) low self-esteem;
(41) feelings of being persecuted, exploited, resulting in mistrust; (42) prior
suffering created stress that led to offense that was committed for emotional
reasons; (43) no true childhood friends; (44) dominated by codefendant; (45)
unable to formulate a clear victim/offender identity; (46) abuse was not reported
early; (47) mother did not believe claim of abuse; (48) poor access to information
as to what happened throughout defendant's development; (49) confessed in first
homicide case; (50) remorse about murders in first homicide case; (51) cooperative
with law enforcement in defendant's first homicide case; (52) cooperative in the
investigation of the homicide of Elton Ard; (53) poor judgment and impulsive
behavior; and (54) feelings of being persecuted and exploited, resulting in mistrust.
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this case, standing alone, would be sufficient to outweigh all the mitigation that
was presented.
FOR-CAUSE CHALLENGE TO POTENTIAL JUROR LAPAN
Busby has asserted thirteen issues on appeal. We conclude that the trial
court's error in denying Busby's challenge for cause against potential juror Kim
Lapan requires reversal of Busby's conviction, and, therefore, decline to address
the remaining twelve issues.4 "Where an appellant claims he was wrongfully
forced to exhaust his peremptory challenges because the trial court erroneously
denied a cause challenge, both error and prejudice must be established." Conde v.
State, 860 So. 2d 930, 941 (Fla. 2003). Based on the record before us, we
conclude that Busby satisfies both prongs of that standard.
Trial Court's Error in Finding Lapan Competent to Serve
4. In addition to the issue addressed in this opinion, Busby argued that the
trial court erred by: (1) excluding self-defense testimony; (2) admitting the
testimony of State Attorney Investigator Lisa Long and by admitting a transcript of
Busby's proffered testimony; (3) allowing codefendant Globe to testify by
videotape; (4) denying the motion to suppress Busby's July 3 and 7 statements; (5)
admitting evidence of prior bad acts under Williams v. State, 110 So. 2d 654 (Fla.
1959); (6) admitting during the penalty phase a transcript of the July 7 confession;
(7) finding the CCP aggravator; (8) excluding defense penalty phase exhibits; (9)
admitting during the penalty phase a letter written by Busby to Globe; and that (10)
the court erred during the penalty phase by admitting evidence of Busby's prior
violent felony convictions; (11) the penalty phase instructions violate Caldwell v.
Mississippi, 472 U.S. 320 (1985); and (12) Florida's death penalty statute is
unconstitutional.
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According to Busby, the trial court erred when it refused to grant Busby's
challenge for cause against Kim Lapan, a former guard of death row inmates at
Florida State Prison. He argues that Lapan's acknowledged biases against death
row inmates and admitted willingness to execute persons who had committed
premeditated murders presented reasonable doubts as to his impartiality. We
agree.
Lapan was not only a former correctional officer at Florida State Prison, he
had worked directly on death row. He stated during voir dire that some of the
correctional officers involved in the prison death of Frank Valdez5 were friends of
his. During voir dire, the following exchange occurred between Lapan and defense
counsel:6
[By the defense]
Q Mr. Lapan, would you say that you oppose or you are in favor [of
the death penalty]-A I am in favor of it. I worked in Florida state prisons.
Q Did you work on death row?
A Yes.
....
Q Based upon your experiences as a correctional officer, if I told
you that you would end up learning this homicide occurred inside a
prison, do you think that would affect your ability to sit as a juror?
5. Valdez, a death row inmate at Florida State Prison, died after an
altercation with prison guards.
6. This exchange followed questioning by the prosecution in which Lapan
answered generally that he understood the bifurcated nature of death penalty
proceedings and could follow the trial court's instructions with regard to assessing
and weighing aggravating and mitigating circumstances in a sentencing
recommendation.
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A Possibly.
Q Would that be something that knowing the position that you held
before, you might consider something an aggravating circumstance
beyond what the judge says, based on your own personal experiences?
A Possibility.
Q We talk about aggravating circumstances. You understand that's
what the judge is going to read as far as the circumstances that are
recognized by law to possibly warrant a death penalty?
A Yes.
Q And mitigating circumstances being those circumstances the law
says you can consider as to whether a life imprisonment sentence
might be appropriate. You understand that as well?
A Yes.
Q Knowing that you have worked on death row as well, you
understand these days life means life?
A Right.
Q Knowing that, do you think that based on your experiences as a
correctional officer that worked on death row, that there might be
things in your mind that are aggravating circumstances that you would
consider outside those that the judge read you, particularly once you
learn that this homicide was -A No. I don't think so. I think I can determine what the judge wants
and go by what they feel are the parameters we are supposed to stay
within.
Q So what you are saying, even though you worked as a correctional
officer for eight years -A Yes, sir.
Q — with part of that time spent on death row -A Yes, sir.
Q — that you don't think that any of your own personal experiences
would come into play as far as maybe you think something is an
aggravating circumstance that could possibly warrant a death sentence
that was not included in the judge's instructions?
A I would like to think I could be openminded enough.
....
Q Do you believe that life in prison is severe enough punishment for
someone who is found guilty of premeditated murder?
A No.
Q If — understanding that you have to find Mr. Busby guilty of
premeditated murder for us to make it to a second phase?
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A Yes.
Q Would that fact be considered by you as an aggravating
circumstance that might cause you to vote for death — the judge is
not going to tell you that is an aggravating circumstance. But
knowing that — to get to the second phase you would have to find
Mr. Busby guilty of premeditated murder, do you think that would be
something that would weigh in favor of the death sentence in your
mind?
A No, I don't think so.
Q Are there any cases that you can think of particularly based upon
you working on death row? Are there any cases that you think would
automatically warrant the death penalty regardless of aggravating and
mitigating circumstances?
A Yes.
Q What would that be?
A Child molesters. Some of the heinous crimes that are committed,
the way they murder or kill, what they have done to the victims. Their
past history on — you know, can they, you know, what will happen
when they have done their time – there isn't time. That's right.
....
Q Are there any other circumstances that you can think of -A I can't think of any offhand.
....
Q Now you had mentioned someone having been convicted prior of
crimes. Might in your mind be something that would cause you to
automatically vote for the death sentence?
A Possibly.
Q I think you are anticipating my next question. Is that a situation
where no matter what mitigation circumstances are given, vote for
death regardless of the mitigating circumstances?
A Unless there is extremely — proof is proof. I am not
understanding some of the questions. They are so hypothetical. That,
you know -Q I am going to clarify this one question involving a situation where
someone had previously been convicted of a crime. What I am asking
is, is that one of those situations where no matter how much proof of
mitigation -A No.
Q — you would say, no, that crime is a death penalty every time in
my mind?
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A No.
Q While you were at F.S.P., were you ever the victim of any
assaults?
A Yes.
Q Do you think that is something in your own mind if you learn that
this had taken place in a correctional institution would factor in
regardless of what the judge said as far as affecting your mind?
THE COURT: You can answer that if that the going to affect your
decision in this case.
THE PROSPECTIVE JUROR: I don't know.
BY MR. DOSS [The Defense]:
Q If the judge instructs you to set your personal feelings aside,
would that be something you can or can't set aside?
A I believe I can.
The defense moved to strike Lapan for cause after individual voir dire based
on his experience as a correctional officer on Florida's death row. Defense counsel
expressed doubt that Lapan could set aside those experiences, despite his assertions
that he could. The trial court denied the motion. After group voir dire, the defense
again moved to strike Lapan for cause, this time citing Lapan's friendship with
officers in the Valdez case, and the different "biases and prejudices" he had. The
motion was again denied.
"It is within a trial court's province to determine whether a challenge for
cause is proper, and the trial court's determination of juror competency will not be
overturned absent manifest error." Fernandez v. State, 730 So. 2d 277, 281 (Fla.
1999). The decision to deny a challenge for cause will be upheld on appeal if there
is support in the record for the decision. See Gore v. State, 706 So. 2d 1328, 1332
(Fla. 1997); see also Mendoza v. State, 700 So. 2d 670, 675 (Fla. 1997) ("A trial
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court has latitude in ruling upon a challenge for cause because the court has a
better vantage point from which to evaluate prospective jurors' answers than does
this Court in our review of the cold record."); Smith v. State, 699 So. 2d 629,
635-36 (Fla. 1997) ("In reviewing a claim of error such as this, we have recognized
that the trial court has a unique vantage point in the determination of juror bias.
The trial court is able to see the jurors' voir dire responses and make observations
which simply cannot be discerned from an appellate record.").
The test for determining juror competency is whether the juror can lay aside
any bias or prejudice and render a verdict solely on the evidence presented and the
instructions on the law given by the court. See Lusk v. State, 446 So. 2d 1038,
1041 (Fla. 1984). A juror must be excused for cause if any reasonable doubt exists
as to whether the juror possesses an impartial state of mind. See Bryant v. State,
656 So. 2d 426, 428 (Fla. 1995); see also Hill v. State, 477 So. 2d 553, 556 (Fla.
1985) (providing that if "any reasonable doubt exists as to whether a juror
possesses the state of mind necessary to render an impartial recommendation as to
punishment, the juror must be excused for cause").
In this case, all three prospective jurors who were working as correctional
officers at the time of the voir dire were dismissed for cause. Neither of the two
potential jurors with prior experience as correctional officers was dismissed for
cause. This Court has consistently held that the mere fact that someone is a
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correctional officer is not per se grounds for a cause challenge. See State v.
Williams, 465 So. 2d 1229, 1230 (Fla. 1985) (holding that the court did not err
when it denied challenge for cause against two correctional officers in a
prosecution for battery against a correctional officer in a correctional institution);
Lusk, 446 So. 2d at 1041; Morgan v. State, 415 So. 2d 6, 10 (Fla. 1982).
Therefore, the fact that Lapan was a former correctional officer was not, in and of
itself, grounds for a cause challenge.
The question for this Court is whether the trial court should have granted a
cause challenge based on Lapan's responses when he was asked if he could be
impartial in serving on Busby's jury. Lapan gave very equivocal responses to
several critical questions regarding his ability to serve as an impartial juror in this
type of case. The mere fact that a juror gives equivocal responses does not
disqualify that juror for service. The question is whether the responses voiced by
Lapan were equivocal enough to generate a reasonable doubt about his fitness as a
juror. "In evaluating a juror's qualifications, the trial judge should evaluate all of
the questions and answers posed to or received from the juror." Parker v. State,
641 So. 2d 369, 373 (Fla. 1994). The trial court must excuse a prospective juror
for cause if "any reasonable doubt" exists regarding his ability to render an
impartial judgment and recommendation as to punishment. See Bryant, 656 So. 2d
at 428; Hill, 477 So. 2d at 556.
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Lapan's equivocation on multiple sensitive and material questions regarding
his ability to be impartial raise reasonable doubt about his fitness to serve as a juror
in this type of case, and should have resulted in his being excused from the panel
for cause. Importantly, Lapan responded that the fact that the accused had been
convicted of prior crimes (as Busby had) might cause him to automatically vote for
the death penalty. When asked whether he believed life imprisonment was severe
enough punishment for a person convicted of premeditated murder, he answered,
"No." Lapan also stated that because the homicide occurred inside a prison, his
ability to serve as an impartial juror might be compromised. In a further response,
Lapan indicated that he might construe such a fact as an aggravating circumstance,
even beyond those aggravating circumstances as might be instructed by the trial
judge. When specifically asked whether learning that the crime had taken place in
a correctional institution would factor in his consideration of the case regardless of
what the judge said, he voiced a highly suspect response of "I don't know." When
asked whether he could comply with the trial court's instructions to set his personal
feelings aside, Lapan could only muster a very weak "I believe I can." The nature
of the case and the sentencing possibilities elevate our concern.
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We recognize that although we are assessing Lapan's voir dire responses
from a cold record,7 the sequence of the questions and plainness of Lapan's
responses leaves little doubt that, as a former death row prison guard, he was
understandably unable to set aside his beliefs and experiences to serve as an
impartial juror in a case involving a prison murder. Lapan equivocated on the very
issue most crucial to his ability to deliberate in an unbiased manner to reach the
appropriate verdict and sentencing recommendation. In our view, the record can
support no other conclusion than that Lapan should have been excused for cause.
Prejudicial Impact
Having determined that the trial court erred in denying Busby's challenge to
prospective juror Lapan for cause, our focus now turns to whether the error
requires a new trial. In the State of Florida, expenditure of a peremptory challenge
to cure the trial court's improper denial of a cause challenge constitutes reversible
error if a defendant exhausts all remaining peremptory challenges and can show
that an objectionable juror has served on the jury. See Trotter v. State, 576 So. 2d
691 (Fla. 1991). As explained in Trotter, "This juror must be an individual who
actually sat on the jury and whom the defendant either challenged for cause or
7. It is important that adequate records be established and preserved,
particularly with regard to matters as sensitive as this process. In this case, the
record gives little insight as to the trial judge's assessment of Lapan's candor or the
relative certainty of his answers that would be directed to consideration of the
challenge for cause. Without an explanation of the trial court's ruling, we rely on
Lapan's responses as they appear to us from a cold record.
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attempted to challenge peremptorily or otherwise objected to after his peremptory
challenges had been exhausted." Id. at 693. A defendant cannot demonstrate
prejudice if the trial court grants the same number of additional peremptories as
cause challenges that were erroneously denied. See Conde, 860 So. 2d at 942.
There is no question that Busby has satisfied the Trotter standard in this case.
After the court denied the challenge for cause as to Lapan, defense counsel
requested and was denied additional peremptory challenges. Counsel then
identified jurors Liebel and Winston as objectionable jurors for whom he would
have used the extra peremptory challenges had they been granted. Both Liebel and
Winston had sons who also worked as correctional officers. Although neither was
challenged for cause, Liebel was dismissed after being impaneled for sleeping
during the trial and was replaced by an alternate juror. Winston, however, served
on the final jury and participated in the verdict convicting Busby. Having
exhausted his peremptory challenges, and having identified Winston as an
objectionable juror who he would have otherwise removed from the prospective
panel with a peremptory challenge, Busby satisfied the Trotter standard for
prejudice and qualifies for a new trial.
The ably written dissent posits that it is time to abandon the Trotter standard,
and institute a rule whereby the defendant must show "actual harm" for a
conviction to be reversed. According to the dissent, actual harm would occur
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where the juror identified as "objectionable" is "legally objectionable," or one who
is biased or partial. In other words, one would be required to demonstrate that such
juror should also have been excused for cause. We decline to modify the Trotter
standard based on our determination that the Trotter test is necessary to properly
protect the right to trial by an impartial jury accorded every defendant in this state,
and to effectuate the statutory scheme granting peremptory challenges. The dissent
would dismantle the peremptory challenge framework.
"The peremptory challenge has very old credentials." Swain v. Alabama,
380 U.S. 202, 212 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).8
8. The Swain Court held that it was permissible to insulate from inquiry a
prosecutor's removal of African-Americans from a particular jury on the
assumption that the prosecutor's action had an acceptable basis. See Swain, 380
U.S. at 221-22. The Court further determined that to establish an equal protection
violation, a defendant must show that the prosecutor had systematically, in case
after case, removed African-Americans from all jury panels, "whatever the crime
and whoever the defendant or the victim may be." Id. at 223. In Batson, the
United States Supreme Court reversed itself and held that race-based peremptory
challenges violate the equal protection rights of both the defendant and the struck
juror. The Court also established a three-step inquiry to demonstrate the
nondiscriminatory use of a challenge. See Batson, 476 U.S. at 97-98.
Our invocation of the Swain Court's explanation of the history and role of
peremptory challenges should not be viewed as an endorsement of the
discriminatory challenge scheme inoculated by that opinion. To the contrary, we
note that the Florida Supreme Court's efforts in eliminating racial bias in the use of
peremptory challenges preceded those at the federal level. See State v. Neil, 457
So. 2d 481 (Fla. 1984), clarified, State v. Castillo, 486 So. 2d 565 (Fla. 1986).
This Court has expanded the Batson/Neil doctrine to include other protected
classes of venirepersons to ensure that peremptory challenges do not serve as a
vehicle for discrimination in Florida courts. See State v. Alen, 616 So. 2d 452
(Fla. 1993) (recognizing Hispanics as a cognizable ethnic group).
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The right to peremptory challenges became the settled law of England in the
middle ages, and was accepted by most American colonial courts. In 1790,
Congress codified the English practice, by granting peremptory challenges to
defendants in capital cases. See Swain, 380 U.S. at 214. Over the years, the
federal rules were expanded to provide peremptory challenges in noncapital
criminal cases and civil cases. See id. at 214 n.14.
The law of peremptory challenges at the state level followed a similar
evolutionary path. Today, every state provides peremptory challenges to both
parties in criminal and civil cases. See id. at 216-17. In Florida, one's entitlement
to peremptory challenges is long-standing. In fact, the entitlement to peremptory
challenges preceded Florida's statehood. See Act of November 23, 1828, § 48,
1839 Compilation of the Public Acts of the Legislative Council of the Territory of
Florida 89, 99 ("[A]t the trial of all causes brought to the superior or county courts,
either party shall have the right to challenge peremptorily four jurors, and as many
more as he can show good cause for.")
The use of peremptory challenges has persisted despite detractors' arguments
that they delay trials, increase trial expense, and are used to eliminate otherwise
qualified jurors. See Swain, 380 U.S. at 216. As recognized by the United States
We rely on the High Court's reasoning in Swain only to the extent necessary
to support our opinion that––properly used––peremptory challenges are
fundamental to each party's ability to realize the constitutional guarantee of trial by
an impartial jury.
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Supreme Court, "The persistence of peremptories and their extensive use
demonstrate the long and widely held belief that peremptory challenge is a
necessary part of trial by jury." Id. at 219; see also United States v. MartinezSalazar, 528 U.S. 304 (2000). Indeed, as this Court has recognized, the very
purpose of peremptory challenges is "the effectuation of the constitutional guaranty
of trial by an impartial jury." Meade v. State, 85 So. 2d 613, 615 (Fla. 1956); see
also Francis v. State, 413 So. 2d 1175, 1178 (Fla. 1982), receded from on other
grounds by Muhammad v. State, 782 So. 2d 343 (Fla. 2001). Although
peremptory challenges are not themselves constitutionally guaranteed at either the
state or federal level, such challenges are nonetheless "one of the most important of
the rights secured to the accused." Swain, 380 U.S. at 219 (quoting Pointer v.
United States, 151 U.S. 396, 408 (1894)).
Focusing only on criminal trials for purposes of the instant analysis, Florida
law provides both cause and peremptory challenges to both sides involved in
criminal proceedings. See §§ 913.03; 913.08, Fla. Stat. (2003). Section 913.03 of
the Florida Statutes outlines the grounds that support cause challenges. These
grounds include: the absence of qualifications required by law; the juror being of
unsound mind or beset by physical defects rendering him unable to perform the
duties of a juror; the juror having conscientious beliefs that would preclude finding
the defendant guilty; and a host of other grounds pertaining to the juror's prior
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involvement in legal proceedings adverse to, or involving, the accused. See §
913.03(1)-(9), Fla. Stat. (2003). This section also allows for cause challenges on
more general grounds bearing on the juror's impartiality. The pertinent subsection
provides:
The juror has a state of mind regarding the defendant, the case, the
person alleged to have been injured by the offense charged, or the
person on whose complaint the prosecution was instituted that will
prevent the juror from acting with impartiality, but the formation of an
opinion or impression regarding the guilt or innocence of the
defendant shall not be a sufficient ground for challenge to a juror if he
or she declares and the court determines that he or she can render an
impartial verdict according to the evidence . . . .
§ 913.03(10), Fla. Stat. (2003). Thus, juror impartiality is a firm basis for excusing
a prospective juror for cause in the State of Florida.
Florida law also provides the prosecution and criminal defendants with the
same number of peremptory challenges. Each side is permitted ten peremptory
challenges if the offense is punishable by death or life in prison, six if the offense
is punishable by more than twelve months in prison (but not punishable by life in
prison or death), and three for all other offenses. See § 913.08(1), Fla. Stat.
(2003). The statute does not enumerate the grounds which would support the
exercise of a peremptory challenge because, as has long been recognized by
Florida courts, use of a peremptory challenge need not be supported by a reason, so
long as the challenge is not used to discriminate against a protected class of
venireperson. See Francis, 413 So. 2d at 1179 ("[The peremptory challenge] is an
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arbitrary and capricious right which must be exercised freely to accomplish its
purpose."); Shannon v. State, 770 So. 2d 714, 716 (Fla. 4th DCA 2000) (stating
that a peremptory challenge "need not be supported by any reason, although a party
may not use such a challenge in a way that discriminates against a protected
minority") (quoting Black's Law Dictionary 223 (7th ed. 1999)).
Thus, Florida law provides for two separate types of challenges to potential
jurors with distinctly different underpinnings. Cause challenges can be made on
certain enumerated grounds, including a potential juror's impartiality. Peremptory
challenges, on the other hand, can be used to excuse a juror for any reason, so long
as that reason does not serve as a pretext for discrimination. The United States
Supreme Court succinctly characterized the distinctions between cause and
peremptory challenges as follows:
The essential nature of the peremptory challenge is that it is one
exercised without a reason stated, without inquiry and without being
subject to the court's control. While challenges for cause permit
rejection of jurors on a narrowly specified, provable and legally
cognizable basis of partiality, the peremptory permits rejection for a
real or imagined partiality that is less easily designated or
demonstrable. It is often exercised upon the "sudden impressions and
unaccountable prejudices we are apt to conceive upon the bare looks
and gestures of another," Lewis [v. United States, 146 U.S. 370, 376
(1892)], upon a juror's "habits and associations," Hayes v. Missouri,
[120 U.S. 67, 70 (1887)] or upon the feeling that "the bare questioning
[a juror's] indifference may sometimes provoke a resentment," Lewis,
[146 U.S. at 376].
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Swain, 380 U.S. at 220 (citations omitted). On this basis, cause and peremptory
challenges comprise distinct, but complementary, methods to aid those facing
criminal charges in achieving the constitutional right of trial by an impartial jury.
Accord Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky. 1993)
Despite the grant of the two clearly separate and distinct types of challenges
under Florida law, the dissent recommends that this Court essentially convert
peremptories into cause challenges under the circumstances here. Under the theory
espoused by the dissent, a defendant could qualify for relief for the erroneous
denial of a cause challenge, and concomitant forced expenditure of a peremptory,
only if a "legally objectionable," or biased, juror sat on the ultimate jury panel.
Such a theory blurs any distinction between cause and peremptory challenges.
The value of peremptory challenges is that they are intended and can be used
when defense counsel cannot surmount the standard for a cause challenge.
Requiring the defendant to show actual bias—the standard applicable to cause
challenges—for the forced expenditure of a peremptory challenge renders the
separate statutory grant of peremptory challenges totally meaningless. Such a
construction also renders superfluous that aspect of section 913.03 which sets forth
juror impartiality as grounds for a cause challenge, as the same showing would be
required to vindicate the statutory right to exercise a peremptory challenge after a
trial court has erroneously caused the loss of a peremptory challenge. Finally, the
- 20 -
interpretation endorsed by the dissent would amplify the ability of one party to use
peremptory challenges at the expense of the other in contravention of the plain
language of section 913.08, which grants each party to a criminal proceeding the
same number of peremptory challenges. Cf. People v. LeFebre, 5 P.3d 295, 304
(Colo. 2000) (holding that state law requiring both sides to receive the same
number of peremptories unless good cause is shown rendered the wrongful grant of
a prosecutorial cause challenge a violation of the defendant's due process rights).
Such interpretations directly undercut this Court's charge of interpreting statutes as
a harmonious whole, giving effect to each of their constituent parts. See Acosta v.
Richter, 671 So. 2d 149, 153-54 (Fla. 1996).
While the deleterious consequences of the interpretation espoused by the
dissent may not be readily apparent in a case involving one curative use of a
peremptory strike, it comes into stark relief when one considers what might occur
if the trial court were to wrongly, but not purposefully or intentionally, deny two or
more cause challenges. In such instance, the defendant would be in the position of
expending many, if not all, of the peremptories allotted to correct the trial court's
errors, and consequently would be deprived of the entitlement to challenge those
jurors whose voir dire answers reveal a real potential for bias, but who would
otherwise not be subject to a challenge for cause. See Johnson v. State, 43 S.W.3d
1, 6 (Tex. Crim. App. 2001) ("If one of an accused's peremptory challenges could
- 21 -
be taken away from him, why not five be taken, and if five, why not ten, leaving
none, and all jurors be acceptable save unfair and partial ones.") (quoting Wolfe v.
State, 178 S.W.2d 274, 279-80 (Tex. Crim. App. 1944)). Under such a scenario, a
defendant would lose the ability to exercise peremptories as a separate and distinct
class of challenges as provided under Florida law. Nothing in the jurisprudence of
this Court, including our decisions requiring a defendant to expend curative
peremptory challenges, supports such a result.
The Trotter standard currently in place properly preserves the distinctions
between cause and peremptory challenges. Under the existing standard, a
defendant can obtain relief for the erroneously forced expenditure of a peremptory
by showing the same type of harm such challenges are intended to cure — the
seating of a juror whom the defendant suspects, but cannot prove, is biased. The
defendant is not forced into the impossible situation of protecting his or her
entitlement to peremptory challenges by proving harm under the for-cause
standard.
Contrary to the characterization cast by the dissent, the Trotter standard has
not thrown wide the doors to multitudes of defendants seeking a new trial because
of erroneously denied cause challenges. In twelve of the seventeen opinions in
which this Court has addressed denial of cause challenges under Trotter, the Court
has determined that the defendant did not preserve prejudicial error. In three of
- 22 -
those cases, the defendant failed to exhaust all peremptory challenges;9 in seven of
the cases, the defendant failed to identify a seated juror whom he or she would
have excused if allowed;10 and in three, the defendant received additional
peremptories to replace each erroneously denied cause challenge.11 In four of the
five cases in which the issue was deemed preserved for review, this Court
determined that the trial court did not err in denying the for-cause challenge.12
Thus, in its fourteen-year history, application of the Trotter standard by this Court
has not resulted in the reversal of a conviction prior to the Court's decision today.
The Trotter standard has proven to be an effective means of protecting the right of
defendants to use peremptory challenges, while respecting the integrity of the
verdicts rendered by juries in this state.
9. Gore v. State, 846 So. 2d 461, 471 (Fla. 2003); Benedith v. State, 717 So.
2d 472, 475 (Fla. 1998); Mendoza v. State, 700 So. 2d 670, 674-75 (Fla. 1997).
10. Bolin v. State, 869 So. 2d 1196, 1200 (Fla. 2004); Kokal v. Dugger, 718
So. 2d 138, 142 (Fla. 1998); Kearse v. State, 662 So. 2d 677, 683 (Fla. 1995);
Pietri v. State, 644 So. 2d 1347, 1352 (Fla. 1994); Knowles v. State, 632 So. 2d 62,
65 (Fla. 1993); Hitchcock v. State, 578 So. 2d 685, 689 (Fla. 1992), vacated on
other grounds, 505 U.S. 1215 (1990); Penn v. State, 574 So. 2d 1079, 1081 (Fla.
1991).
11. Conde v. State, 860 So. 2d 930, 941-42 (Fla. 2003); Overton v. State,
801 So. 2d 877, 894 (Fla. 2001); Bryant v. State, 656 So. 2d 426, 428 (Fla. 1995).
12. Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 2000); Van Poyck v.
Singletary, 715 So. 2d 930, 931 (Fla. 1998); Farina v. State, 679 So. 2d 1151,
1153-54 (Fla. 1996), receded from on other grounds by Franqui v. State, 699 So.
2d 1312, 1320 (Fla. 1997); Dillbeck v. State, 643 So. 2d 1027, 1028 (Fla. 1994).
- 23 -
The dissent draws support for its position from the United States Supreme
Court's decisions in Ross v. Oklahoma, 487 U.S. 81 (1988), and United States v.
Martinez-Salazar, 528 U.S. 304 (2000). The dissent posits that these cases make
clear that there is no federal constitutional right to peremptory challenges, and that
the denial of these challenges does not constitute reversible error absent a showing
that a legally objectionable juror served on the jury. We are aware of the holdings
in both cases cited by the dissent, but ultimately determine that they have little
impact on how this Court should interpret Florida's constitutional safeguards and
the law governing the use of cause and peremptory challenges in the instant
context. In so doing, we note that the High Court has never addressed whether the
erroneous denial of a cause challenge that is preserved under the Trotter
requirements constitutes reversible error.13
13. In his concurring opinion in Martinez-Salazar, Justice Souter
highlighted the pertinent distinction:
I write only to suggest that this case does not present the issue
whether it is reversible error to refuse to afford a defendant a
peremptory challenge beyond the maximum otherwise allowed, when
he has used a peremptory challenge to cure an erroneous denial of a
challenge for cause and when he shows that he would otherwise use
his full complement of peremptory challenges for the noncurative
purposes that are the focus of his peremptory right. Martinez-Salazar
did not show that, if he had not used his peremptory challenge
curatively, he would have used it peremptorily against another juror.
He did not ask for a makeup peremptory or object to any juror who
sat. Martinez-Salazar simply made a choice to use his peremptory
challenge curatively.
- 24 -
In Ross v. Oklahoma, 487 U.S. 81 (1988), the Supreme Court considered, in
pertinent part, whether the curative use of a peremptory challenge violates the right
to trial by an impartial jury guaranteed by the Sixth or Fourteenth Amendments.
Noting that the Court had long recognized that peremptory challenges are "not of
constitutional dimension," the High Court held that the loss of a peremptory
challenge, without more, does not violate the right to an impartial jury. Id. at 88.
According to the Ross Court, "So long as the jury that sits is impartial, the fact that
the defendant had to use a peremptory challenge to achieve that result does not
mean the Sixth Amendment was violated." Id.
As the arbiters of the meaning and extent of the safeguards provided under
Florida's Constitution, we reiterate that the ability to exercise peremptory
challenges as provided under Florida law is an essential component to achieving
Florida's constitutional guaranty of trial by an impartial jury. See Meade, 85 So.
2d at 615. Our decisions requiring a defendant to expend a peremptory challenge
to cure an erroneous ruling on a cause challenge does not signal our intent to treat
cause and peremptory challenges interchangeably, or to associate peremptory
challenges with less significance. To the contrary, we have consistently
determined that reversible error occurs to the extent a party is forced to expend a
peremptory challenge to cure a wrongly denied cause challenge can show that he
Martinez-Salazar, 528 U.S. at 317-18 (Souter, J., concurring).
- 25 -
or she has exhausted the remaining peremptory challenges, and that an
objectionable juror was seated on the ultimate jury panel. See Trotter, 576 So. 2d
at 692. The harm suffered by the defendant under such a scenario is having been
forced to accept a juror he or she would have peremptorily excused but for the
need to remedy the trial court's error. See Farias v. State, 540 So. 2d 201, 203 (Fla.
3d DCA 1989) ("It is error for a court to force a party to exhaust his peremptory
challenges on persons who should be excused for cause since it has the effect of
abridging the right to exercise peremptory challenges."); Smith v. State, 463 So. 2d
542, 545 (Fla. 5th DCA 1985) (same). We believe the Texas Court of Criminal
Appeals eloquently expressed this concept as follows:
It is the privilege of accused to exclude from service one whom [sic],
in his judgment is unacceptable to him. In conferring it, the law gives
effect to the natural impulse to eliminate from the jury list not only
persons who are rendered incompetent for some of the disqualifying
causes named in the statute, but persons, who, by reason of politics,
religion, environment, association, or appearance, or by reason of the
want of information with reference to them, the accused may object to
their service upon the jury to which the disposition of his life or
liberty is submitted. In other words, the law fixes the number of
challenges and confers upon the accused the right to arbitrarily
exercise them. This right having been denied the appellant in the
instant case, he having exercised all of the challenges the court would
permit him to use, and having been forced to try his case before jurors
who were objectionable and whom he sought to challenge
peremptorily, the verdict of conviction rendered by the jury so
selected cannot, we think, with due respect to the law, be held to
reflect the result of a fair trial by an impartial jury, which it is the
design of our law shall be given to those accused of crime.
- 26 -
Johnson, 43 S.W.3d at 6 (quoting Kerley v. State, 230 S.W. 163, 164-65 (1921)).
We agree with the Texas court in concluding that the curative use of a peremptory
challenge violates a defendant's right to a trial by impartial jury when that
defendant can show that he or she went without the peremptories needed to strike a
seated juror.
Moreover, we do not consider persuasive the Ross Court's reasoning with
regard to the due process concerns associated with forcing a defendant to expend a
peremptory challenge to cure a wrongly denied cause challenge. The Ross Court
held that the curative use of a peremptory challenge did not violate due process
guarantees because the Oklahoma law at issue required a defendant to cure an
erroneous for-cause ruling by exercising a peremptory challenge, and thus the
defendant had received all that was due under state law. See 487 U.S. at 89.
However, it appears that the Oklahoma statute at issue in Ross required a
defendant to expend a curative peremptory, exhaust his or her remaining
peremptories, and show that an "incompetent" juror sat on the ultimate panel. See
id.. The opinion explained that after defense counsel in that case had used a
peremptory challenge to remove a juror who should have been removed for cause,
he exhausted his peremptory challenges, but did not assert and present a cause
challenge to any juror remaining on the panel. See id. at 84. This Oklahoma law
apparently required an additional act as a necessary prerequisite to establishing that
- 27 -
an "incompetent" juror served on the panel. Thus, it appears that the defendant in
Ross could not have obtained relief under Oklahoma law.
Florida law, on the other hand, requires only that the defendant expend a
curative peremptory challenge, exhaust the remaining peremptories, and identify a
seated juror whom the defendant otherwise would have peremptorily excused
according to established law. Stated another way, Florida law provides defendants
a stated number of peremptory challenges, less those necessary to cure erroneously
denied cause challenges, so long as the defendant is "made whole" with additional
peremptories to the extent he or she seeks to challenge objectionable jurors. If the
defendant desires to peremptorily challenge a juror, but is without remaining
challenges due to the need to correct the trial court's errors, he has not, according to
our interpretations, received "that which state law provides." Id. at 89.
The dissent's recommendation to maintain Trotter's requirements, but to
require defendants to show that a seated juror was actually biased, would construct
the ultimate Catch-22 for accused individuals in this state. It would be
fundamentally unfair to require that a defendant take every step possible to obtain
an impartial jury by correcting the trial court's error, and then to deny relief
because the defendant has not demonstrated he or she was denied an impartial jury.
We could remedy the inequity of this result by jettisoning the Trotter standard
altogether in favor of the federal practice, which does not require defendants to
- 28 -
expend curative peremptory challenges to preserve the erroneous denial of a cause
challenge for review. See Martinez-Salazar, 528 U.S. at 306. However, such a
"remedy" would not, in our view, serve the ends of justice. The practice would
force the defendant to accept a biased juror as a price of preserving the issue on
appeal. As we stated in Trotter, our concern in implementing the existing standard
is that a defendant not "stand by silently while an objectionable juror is seated and
then, if the verdict is adverse, obtain a new trial." Trotter, 576 So. 2d at 693.
Finally, this Court is not swayed by the fact that some state courts have
reconsidered their state law in the wake of Ross and Martinez-Salazar, opting to
limit reversal to those cases in which a legally objectionable juror sits on the jury.
See Dissenting op. at 7. The opposite is also true. Several state courts have
declined to extend the analysis in Ross and Martinez-Salazar to their jurisdictions.
See LeFebre, 5 P.3d at 308 ("That federal law governing the use of peremptory
challenges differs from Colorado law governing the use of peremptory challenges
does not alter the effect of Ross when applied to Colorado law."); State v. Santelli,
621 A.2d 222, 224-25 (Vt. 1992) (stating that the prejudice standard would render
trial court errors unreviewable by shifting the focus to the qualifications of the
juror subject to the lost peremptory instead of the court's error); Johnson, 43
S.W.3d at 6 (disapproving appeals court's reliance on Ross, stating that the
decision "does not change the way that the Court of Criminal Appeals has
- 29 -
interpreted state law"). We choose not to turn Florida law on its head with regard
to the error corrected here which would unnecessarily occur if we were to adopt
the dissenting view.
In fact, it is interesting to note that only a bare majority of state courts
require a showing that a biased juror actually sat on the jury panel. Nineteen other
states in addition to Florida require reversal when a defendant is wrongly denied
the use of a peremptory challenge.14 Many of these jurisdictions apply a standard
14. People v. Crittenden, 885 P.2d 887, 907 (Cal. 1995); People v. LeFebre,
5 P.3d 295, 307 (Colo. 2000); State v. Kauhi, 948 P.2d 1036, 1039 (Haw. 1997);
Thomas, 864 S.W.2d at 259; State v. Albano, 111 A. 753, 753 (Me. 1920);
Commonwealth v. Auguste, 605 N.E.2d 819, 824 (Mass. 1992); State v.
Freshment, 43 P.3d 968, 975 (Mont. 2002); Fuson v. State, 735 P.2d 1138, 1141
(N.M. 1987); State v. Conner, 440 S.E.2d 826, 634 (N.C. 1994); State v. Tyler, 553
N.E.2d 576, 587 (Ohio 1990), superseded on other grounds by constitutional
amendment as stated in State v. Smith, 684 N.E.2d 668 (Ohio 1997);
Commonwealth v. Impellizzeri, 661 A.2d 422, 426-27 (Pa. 1995); Johnson v.
State, 43 S.W.3d 1, 5-6 (Tex. Crim. App. 2001); State v. Santelli, 621 A.2d 222,
224 (Vt. 1992).
The Court acknowledges that in six of the nineteen jurisdictions, reversal is
required because peremptory challenges are either a constitutional right or because
state law either requires reversal or provides that the parties can exercise their
peremptories against a panel where none of the jurors are subject to challenges for
cause. See State v. Esposito, 613 A.2d 242, 249-50 (Conn. 1992) (right to use
peremptories guaranteed by state constitution); Kirkland v. State, 560 S.E.2d 6, 8
(Ga. 2002) (statutory right to exercise peremptories against a panel free from
exception); State v. Cross, 658 So. 2d 683, 686 (La. 1995) (right to use
peremptories guaranteed by state constitution); People v. Cahill, 809 N.E.2d 561
(N.Y. 2003) (statute provides that reversal is warranted for erroneous denial of forcause challenge when defendant exhausts peremptory challenges); David v.
Commonwealth, 493 S.E.2d 379, 381 (Va. Ct. App. 1997) (statutory right to
exercise peremptory strikes against a panel free from exception); State v. Phillips,
461 S.E.2d 75, 94 (W. Va. 1995) (accepting the constitutional analysis contained in
- 30 -
similar to that applied in Florida, requiring that the defendant identify a juror he or
she would have excused with a peremptory challenge, had one been available.15
However, many states have even more lenient standards, requiring only that the
defendant exhaust his or her peremptory challenges.16
Ultimately, we perceive no justifiable reason for receding from the Trotter
standard. While not expressly provided for in Florida's Constitution, peremptory
challenges are a necessary tool for achieving the constitutional right of a trial by an
impartial jury. We are willing to demand that defendants use that tool to correct
erroneous rulings on cause challenges, but to do so without replacement of the
peremptory challenges utilized would, under the jurisprudence of this state, abridge
Ross but upholding per se reversal based on statutory right to exercise
peremptories against a panel free from exception).
15. Albano, 111 A. at 753 (requiring exhaustion of peremptory challenges
and the seating of an "objectionable" juror); Johnson, 43 S.W.3d 1 at 5-6 (requiring
exhaustion of peremptory challenges, denial of request for additional peremptories,
and identification of a seated juror who is objectionable); Santelli, 621 A.2d at 224
(requiring exhaustion of peremptory challenges and communication of the desire to
peremptorily challenge another juror).
16. Crittenden, 885 P.2d at 907 (requiring exhaustion of peremptory
challenges and communication to the trial court that the defendant is dissatisfied
with the jury selected); LeFebre, 5 P.3d at 307 (requiring exhaustion of peremptory
challenges); Kauhi, 948 P.2d at 1039 (applying a true "per se" standard requiring
reversal whenever a defendant is forced to use a peremptory challenge to remove a
juror who should have been removed for cause); Thomas, 864 S.W.2d at 259
(requiring exhaustion of peremptory challenges); Auguste, 605 N.E.2d at 824
(same); Freshment, 43 P.3d 968 at 975 (same); Fuson, 735 P.2d at 1141 (same);
Tyler, 553 N.E.2d at 587 (same); Impellizzeri, 661 A.2d at 426-27 (same).
- 31 -
the rights of the accused. We believe the Trotter standard continues to serve as the
best mechanism for ensuring that such abridgment does not occur.
CONCLUSION
For the reasons stated herein, we reverse Busby's conviction, vacate his
sentence, and remand the case for a new trial consistent with this opinion.
It is so ordered.
PARIENTE, C.J., and ANSTEAD, LEWIS and QUINCE, JJ., concur.
BELL, J., concurs in part and dissents in part with an opinion, in which WELLS
and CANTERO, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
BELL, J., concurring in part and dissenting in part.
I agree with the majority’s holding that the trial judge should have granted
Busby’s cause challenge to venireperson Lapan. However, because Busby has not
shown that this procedural error harmed his constitutional right to a fair and
impartial jury, I dissent to the reversal of the conviction.
- 32 -
Indeed, the trial judge made an error in his ruling on one of Busby’s eight
cause challenges.17 Such mistakes are made by the best of judges in the fast-paced,
contentious process of jury selection. And Busby corrected this error by using the
tool the State provided him to immediately remedy such inevitable mistakes. He
did so by using one of the ten statutory peremptory challenges given to him in
section 913.08(1)(a), Florida Statutes (2000). Later, after exhausting all of his
statutory peremptory challenges on jurors who were not removable for cause,
Busby tried to recoup the peremptory challenge he used on Lapan by requesting an
additional peremptory. He wanted to use this additional peremptory challenge to
strike a legally unobjectionable juror. The trial judge denied this request.
Ultimately, Busby received what our federal and state constitutions
guarantee him. He received a trial by a fair and impartial panel of twelve jurors
who reached a unanimous verdict. Each juror was qualified to serve. Not one of
them was legally objectionable. Nonetheless, the majority vitiates this jury’s
17. And, as we consider this one procedural error in light of Trotter v. State,
576 So. 2d 691 (Fla. 1991), we should not lose sight of its context. The entire
mechanism of jury selection worked to achieve the ultimate objective, a fair and
impartial jury. Busby challenged eight potential jurors for cause: four of these
challenges were granted, four were denied. Only the one denial related to Lapan
was in error. Prior to Busby making his challenges for cause, the trial court
removed twelve jurors sua sponte. The State also successfully removed six jurors
for cause. Two of the State’s cause challenges removed jurors biased against
Busby and in favor of the State. In addition to these successful cause challenges,
Busby used all ten of his peremptory challenges (plus one on an alternate) while
the State used nine of its ten peremptory challenges. In the end, no objectionable
juror was empaneled.
- 33 -
verdict; and it does so without requiring Busby to show any harm. The only basis
for this severe sanction is the continued application of the Trotter per se error rule.
I dissent because the Trotter per se error rule has four deficiencies: (1) it
lacks any adequate constitutional or statutory basis; (2) it ignores one of the
primary purposes of peremptory challenges; (3) it is contrary to the presumption of
juror impartiality; and (4) it violates section 924.33, Florida Statutes (2003), which
requires the application of a harmless error standard. To make the rule legally
sound, we should modify the Trotter per se error rule to require the showing of
harm.
To explain these four deficiencies of the Trotter per se error rule, I will start
with a brief review of the legal history of peremptory challenges. We will see that
the per se error rule was a reaction to dicta in the United States Supreme Court
decision in Swain v. Alabama, 380 U.S. 202 (1965), where that Court stated that
the federal constitution demanded such a strict standard. However, the United
States Supreme Court later clarified this dicta in Ross v. Oklahoma, 487 U.S. 81
(1988), when it held that a per se reversal rule is not constitutionally required. We
will also see that Florida law on the legal significance of peremptory challenges
was consistent with the legal significance accorded them by the United States
Supreme Court prior to Swain, adjusted course post-Swain, but failed to correct
course after that Court reversed itself. This historical examination also will show
- 34 -
that post-Trotter developments remove any firm legal basis to support a per se
reversible error rule.
After this examination of the legal history, I will briefly discuss the majority
opinion. Essentially, the majority gives peremptory challenges an elevated status
beyond what is typically given to nonconstitutional, statutory procedural rights.
We will see that this elevated status of peremptory challenges is contrary to this
Court’s precedents.
Essentially, I will show that modifying the Trotter standard to require a
showing of harm is most consistent with the historically understood purpose of
peremptory challenges as procedural tools of no constitutional dimension that are
designed to help the State fulfill its constitutional duty of providing fair and
impartial juries to all parties.18 And, because peremptory challenges are of no
constitutional dimension, section 924.33, as well as our precedent, require
application of the harmless error standard of review.
I. A BRIEF HISTORY OF PEREMPTORY CHALLENGES
A. THE LAW PRIOR TO TROTTER
18. Art. I, § 22, Fla. Const.
- 35 -
Peremptory challenges have had a long and storied history.19 This Court has
consistently recognized that these challenges are not of constitutional dimension
but are a means to ensure that defendants receive an impartial jury. See Carroll v.
State, 190 So. 437, 438 (Fla. 1939).
In Rollins v. State, 148 So. 2d 274, 276 (Fla. 1963), this Court refused to
reverse a conviction based on an erroneous denial of a cause challenge because a
peremptory challenge was used on the objectionable venireperson. As Busby did,
Rollins exhausted his peremptory challenges, but this Court held that there was no
showing that an objectionable or unqualified juror served on the jury. This Court
defined “objectionable” juror as one that is legally objectionable or unqualified to
serve. Id.
In Swain, 380 U.S. at 219, the United States Supreme Court stated in dicta
that the “denial or impairment of the right [to exercise peremptory challenges] is
reversible error without a showing of prejudice.” This Court applied the Swain
dicta in Hill v. State, 477 So. 2d 553 (Fla. 1985). The trial court in Hill
erroneously denied a cause challenge, and Hill used a peremptory on the
objectionable venireperson. With little analysis, this Court stated:
We find that such error cannot be harmless because it abridged
appellant’s right to peremptory challenges by reducing the number of
19. A detailed history of peremptory challenges is provided in William T.
Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am. Crim. L.
Rev. 1391, 1403-06 (2001).
- 36 -
those challenges available him. Florida and most other jurisdictions
adhere to the general rule that it is reversible error for a court to force
a party to use peremptory challenges on persons who should have
been excused for cause, provided the party subsequently exhausts all
of his or her peremptory challenges and an additional challenge is
sought and denied. See Singer[ v. State, 109 So. 2d 7 (Fla. 1959)];
Leon v. State, 396 So. 2d 203 (Fla. 3d DCA 1981). See also Wasko v.
Frankel, 116 Ariz. 288, 569 P.2d 230 (Ariz. 1977); Jones v. Cloud,
119 Ga. App. 697, 168 S.E.2d 598 (Ga. 1969); State v. Sugar, 408 So.
2d 1329 (La. 1982); State v. Ternes, 259 N.W.2d 296 (N.D. 1977),
cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed.2d 540 (1978);
Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (Pa. 1978);
Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123 (Va. 1980).
Hill, 477 So. 2d at 556. The majority of the cases cited in Hill cite to Swain as
authority. This Court did not provide a state constitutional or statutory law basis
for its holding in Hill. Thus, the most reasonable inference is that the decision was
based on federal constitutional requirements in light of Swain.
Four years later, this Court considered a similar situation in Hamilton v.
State, 547 So. 2d 630 (Fla. 1989). The trial court in Hamilton erroneously denied a
cause challenge to a juror. Although Hamilton could have used one of his
remaining peremptory challenges to remove the challenged juror, he elected not to
do so. At the conclusion of voir dire, after Hamilton had exhausted his peremptory
challenges, he requested an additional peremptory challenge so he could backstrike
the juror. The request was denied, and the biased juror sat on the panel that issued
a verdict in the case. This Court held that “the failure to excuse this juror upon
motion deprived Hamilton of his constitutional right to a fair trial, requiring us to
- 37 -
reverse the conviction and remand this case for a new trial.” Hamilton, 547 So. 2d
at 633. Hamilton differs from Hill in that a legally objectionable juror actually
served on the jury in Hamilton.
Twenty-three years after Swain was decided (but only three years after Hill),
the United States Supreme Court confronted the question before us in Ross v.
Oklahoma, 487 U.S. 81 (1988). The Court addressed Ross’s arguments based on
federal constitutional rights and then on state law. First, the Court held that
peremptory challenges are not of federal constitutional dimension and rejected the
argument that, without more, “the loss of a peremptory challenge constitutes a
violation of the constitutional right to an impartial jury.” Id. at 88. The Court
concluded that, because peremptory challenges are only a means to achieve the end
of an impartial jury, whether a litigant is “forced” or “required” to exercise a
peremptory challenge does not violate the Sixth Amendment so long as the jury
that sits is impartial. See id. at 88.
Second, the Court considered and rejected Ross’s argument that the trial
court’s failure to remove a juror for cause “violated his Fourteenth Amendment
right to due process by arbitrarily depriving him of the full complement of nine
peremptory challenges allowed” under state law. Id. at 89. The facts in Ross are
nearly identical to those in this case, and the Oklahoma law is very similar to
Florida law in that a defendant who disagrees with a trial court’s ruling on a cause
- 38 -
challenge must, in order to preserve the claim that the ruling deprived him of a fair
trial, exercise a peremptory challenge to remove the juror. The Court held that
such a requirement is consistent with the ultimate goal of empaneling an impartial
jury. Id. Thus, the Court concluded that Ross did not lose any state law right
when he used one of his challenges to remove a juror who should have been
excused for cause. Instead, the Court held that Ross received all that state law
allowed him and received the fair trial guaranteed by the federal constitution. Id.
at 90-91. And, contrary to the majority’s position in this case, the Court in Ross
found that this blurring of the distinction between peremptory and cause challenges
did not violate Oklahoma law nor did it violate Ross’s due process rights.
However, the Court did tacitly acknowledge that repeated and deliberate
misapplication of the law by the trial court might rise to the level of a due process
violation. See id. at 91 n.5.20
B. THE TROTTER STANDARD
20. And, on this point, I share the important but purely hypothetical concern
the majority raises in its objection to my suggestion that the Trotter standard be
modified. A trial court’s repeated and deliberate denial of appropriate challenges
for cause would be a violation of both federal and state law. But, just as in Ross,
that is clearly not the case before us now and it is an unsupported, insufficient
reason for a global, per se reversible error rule. Except for the majority’s concerns
stated in opposition to modifying the Trotter standard, the abusive denial of proper
cause challenges by trial judges has never been articulated by this Court as a
reason for the per se reversal rule, nor is there any factual support for such a
rationale. The majority does not cite to any evidence that abusive denial of cause
challenges was a problem before Trotter, and there is no evidence to support the
existence of such a problem in those jurisdictions that require the showing of harm.
- 39 -
In Trotter v. State, 576 So. 2d 691 (Fla. 1991), this Court held:
Where a defendant seeks reversal based on a claim that he was forced
to exhaust his peremptory challenges, he initially must identify a
specific juror whom he otherwise would have struck peremptorily.
This 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.
Trotter, 576 So. 2d at 693. We have interpreted Trotter not to require an actual
showing of bias or partiality on the part of the juror.21 Thus, the mere objection to
any juror who actually sits on the jury is sufficient to warrant automatic reversal.
Under this standard, a defendant could object to a clearly neutral or even a defensefriendly juror and still be entitled to a new trial. As Judge Harris noted, “Trotter, in
effect, grants a reversal of even a fair verdict in order to reward a party for properly
following the procedure to preserve the error.” Gootee v. Clevinger, 778 So. 2d
1005, 1013 (Fla. 5th DCA 2000) (Harris, J., dissenting). Importantly, neither
Trotter nor the cases that it cites provide any state law basis for a per se reversal
rule.
C. POST-TROTTER DEVELOPMENTS
In 2000, the United States Supreme Court revisited the constitutional
importance of peremptory challenges in United States v. Martinez-Salazar, 528
21. See Conde v. State, 860 So. 2d 930, 941 (Fla. 2003); Pietri v. State, 644
So. 2d 1347, 1352 (Fla. 1994); Knowles v. State, 632 So. 2d 62, 65 (Fla. 1993).
- 40 -
U.S. 304 (2000). The Court in Martinez-Salazar decided the issue left open in
Ross of whether, absent the requirement under the federal rules to use a
peremptory challenge to cure an erroneous refusal by the trial court to excuse
jurors for cause, “a denial or impairment of the exercise of peremptory challenges
occurs if the defendant uses one or more challenges to remove jurors who should
have been excused for cause.” Ross, 487 U.S. at 91 n.4. The Court determined
that Martinez-Salazar’s use of a peremptory challenge to cure the trial court’s error
was consistent with the purpose of peremptory challenges, that is, securing trial by
an impartial jury, and was not equivalent to the loss of a peremptory challenge.
The Court affirmed the conviction.
It is clear from Ross and Martinez-Salazar that there is no federal
constitutional right to peremptory challenges.22 So, absent a showing that an
objectionable juror served on the jury, the so-called “denial of a full complement
of peremptory challenges” arising from the use of a peremptory challenge to cure
an erroneous denial of a cause challenge does not constitute reversible error. In
addition to there being no federal constitutional right to peremptory challenges,
22. As the United States Supreme Court has said, peremptory challenges
“are but one state-created means to the constitutional end of an impartial jury and a
fair trial.” Georgia v. McCollum, 505 U.S. 42, 57 (1992). In fact, that Court
“repeatedly has stated that the right to a peremptory challenge may be withheld
altogether without impairing the constitutional guarantee of an impartial jury and a
fair trial.” Id. (emphasis added).
- 41 -
this Court has never established a state constitutional right to peremptory
challenges. And, contrary to the majority, I believe we should not do so in this
case.
Since the Ross and Martinez-Salazar decisions, many other states have
reconsidered their positions on peremptory challenges. The Wisconsin Supreme
Court conducted an excellent analysis of peremptory challenge law in State v.
Lindell, 629 N.W.2d 223 (Wis. 2001), and reversed that state’s long-standing per
se error position in light of Ross and Martinez-Salazar. A number of other states
have followed suit.23 In fact, the majority of states currently do not require reversal
unless a legally objectionable juror actually served on the jury.
In Florida, at least one appellate judge has asked the right question and
reached the correct conclusion. In his dissent in Gootee v. Clevinger, 778 So. 2d
1005 (Fla. 5th DCA 2000), Judge Harris posed the question that is at issue in this
23. See Dailey v. State, 828 So. 2d 340 (Ala. 2001); Minch v. State, 934
P.2d 764, 769-70 (Alaska Ct. App. 1997); State v. Hickman, 68 P.3d 418 (Ariz.
2003); Bangs v. State, 998 S.W.2d 738, 744-45 (Ark. 1999); State v. Pelletier, 552
A.2d 805, 810 (Conn. 1989); State v. Ramos, 808 P.2d 1313, 1315 (Idaho 1991);
Dye v. State, 717 N.E.2d 5, 18 n. 13 (Ind. 1999); State v. Neuendorf, 509 N.W.2d
743, 747 (Iowa 1993); State v. Anderson, 603 N.W.2d 354, 356 (Minn. Ct. App.
1999) (citing State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983)); Johnson v.
State, 754 So. 2d 576, 578 (Miss. Ct. App. 2000); State v. Storey, 40 S. W. 3d 898,
904-05 (Mo. 2001); State v. Entzi, 615 N.W. 2d 145, 149 (N.D. 2000); Myers v.
State, 17 P.3d 1021, 1027-28 (Okla. Crim. App. 2000); Green v. Maynard, 564
S.E. 2d 83 (S.C. 2002); State v. Verhoef, 627 N.W.2d 437 (S.D. 2001); State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992); State v. Menzies, 889 P.2d 393,
399-400 (Utah 1994); State v. Fire, 34 P.3d 1218 (Wash. 2001).
- 42 -
case: “[I]s the failure to get one’s full complement of peremptory challenges itself
so prejudicial that a new trial must always be granted?” Gootee, 778 So. 2d at
1011 (Harris, J., dissenting). Judge Harris succinctly answered his question and, in
so doing, showed why such a procedural error should be subjected to a harmless
error analysis, not per se reversal. Judge Harris said:
Rollins requires an error which affects the fairness of the verdict;
Trotter requires only that there have been an error in ruling on the “for
cause”challenge and that (1) the peremptory challenges are exhausted
to cure the error, (2) an additional challenge is requested (and denied),
(3) for the purpose of challenging a specified juror who ultimately
serves on the jury. I submit that although (1), (2), and (3) are essential
in order to preserve the error (for without them there would clearly be
no harm associated with the court’s error), such preservation factors
themselves fail to establish harm. Trotter, in effect, grants a reversal
of even a fair verdict in order to reward a party for properly following
the procedure to preserve the error. Rollins, Hamilton and Farina[ v.
State, 679 So. 2d 1152 (Fla. 1996),] go further and ask, “Now that you
have preserved the error, how have you been harmed?” Only by
asking this question will we subject this procedural error, as we do
even constitutional errors, to a harmless error analysis.
Gootee, 778 So. 2d at 1013 (Harris, J., dissenting) (emphasis added).
I agree with Judge Harris. The Trotter requirements are a necessary—and
judicially efficient—means of preserving potentially harmful error. However, this
Court’s original reliance on Swain to require per se reversal is obviously no longer
sustainable.24 And, because a per se reversal rule no longer has any foundation in
24. Revealingly, the United States Supreme Court, in Martinez-Salazar,
noted—in dicta—that the Swain standard of automatic reversal was itself dicta and
- 43 -
the federal constitution, we must look to see what state law demands. To do this,
we must first determine the state law source of the right to peremptory challenges
and then determine what standard of review to apply when a right from such a
source is violated.
II. THE PURELY STATUTORY BASIS OF PEREMPTORY
CHALLENGES
Peremptory challenges in Florida are purely a statutory right; they have no
state constitutional foundation. In criminal trials, peremptory challenges are
granted equally to the State and to the defendant by section 913.08, Florida
Statutes (2003). As a statutory right, peremptory challenges are an important
means to help ensure that both sides receive their state constitutional right to a fair
trial before an impartial jury. But they are of no constitutional dimension. There is
no express or implicit provision in Florida’s constitution securing the right to
peremptory challenges; and to hold otherwise is contrary to our own precedent.
Because peremptory challenges are only a statutory right given to help
secure the constitutional right to a fair trial by jury, we are bound to apply a
harmless error standard. The harmless error rule as codified in section 924.33,
Florida Statutes (2003), and as applied by our own precedent dictates this result.
that it was founded on “a series of [United States Supreme Court] early cases
decided long before the adoption of harmless-error review.” 528 U.S. at 317 n.4.
- 44 -
This Court interpreted section 924.33 in State v. DiGuilio, 491 So. 2d 1129, 1134
(Fla. 1986), stating:
Section 924.33 respects the constitutional right to a fair trial
free of harmful error but directs appellate courts not to apply a
standard of review which requires that trials be free of harmless
errors. The authority of the legislature to enact harmless error statutes
is unquestioned. Contraposed to this legislative authority, the courts
may establish the rule that certain errors always violate the right to a
fair trial and are, thus, per se reversible. To do so, however, we are
obligated to perform a reasoned analysis which shows that this is true,
and that, for constitutional reasons, we must override the legislative
decision.
(Original emphasis and footnote omitted; emphasis added.) In light of section
924.33, our statements in DiGuilio, and our historical application of the harmless
error rule, I see no constitutional reason that supports a per se reversal rule in
general or as applied in this case. As I have said, it is clear that Busby’s
constitutional right to an impartial jury was not violated. None of his jurors were
legally objectionable. Because there is no federal constitutional right to
peremptory challenges and because this Court’s own precedent makes it clear that
these challenges are not of a constitutional dimension, to require per se reversal in
a case where a party receives what the constitution requires violates section 924.33
as interpreted by this Court in DiGuilio.25
III. THE MAJORITY OPINION
25. See Jefferson v. State, 595 So. 2d 38, 41 (Fla. 1992); State v. Neil, 457
So. 2d 481, 486 (Fla. 1984); Carroll v. State, 190 So. 437, 438 (Fla. 1939).
- 45 -
For the first time in Florida’s long history, the majority announces that the
right to peremptory challenges is constitutionally based. In doing so, the majority
misapprehends the true constitutional right at issue and contradicts our previous
case law to the contrary. As this Court stated in the post-Trotter case of Jefferson
v. State, 595 So. 2d 38, 41 (Fla. 1992), “It is the right to an impartial jury, not the
right to peremptory challenges, that is constitutionally protected. Peremptory
challenges merely are a ‘means of assuring the selection of a qualified and
unbiased jury.’” (Citations omitted; emphasis added.)
By the majority’s decision today, the historical purpose and primary role of
peremptory challenges have been lost. As I have suggested earlier, “if peremptory
challenges have any constitutional significance at all, it must be because they serve
as a check on the trial court’s erroneous rulings on challenges for cause, and
therefore act as a screen to increase the chances that biased jurors will not sit.”
William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am.
Crim. L. Rev. 1391, 1429 (2001); see also Martinez-Salazar, 528 U.S. at 319
(Scalia, J. concurring in the judgment) (“The resolution of juror-bias questions is
never clear cut, and it may well be regarded as one of the very purposes of
peremptory challenges to enable the defendant to correct judicial error on the
point.”). Instead of serving as a means to correct erroneous rulings on cause
challenges, and thereby reducing the number of appeals needed to ensure an
- 46 -
impartial jury, peremptory challenges in Florida have now evolved into another
“constitutionally required” aspect of a jury trial for which per se reversal is
applied. In light of this enormous step, I must reiterate the point that seems lost in
the majority’s decision. The constitutional provision that the majority must base
its decision on is the constitutional right to an impartial jury. If Busby’s jury was
impartial, how can one say that his constitutional right to an impartial jury was
violated?
A. THE MAJORITY CONCERNS
In various ways, the majority insists that modifying the per se rule of Trotter
would be disastrous. The majority maintains that modifying the Trotter standard
to require proof of actual harm for a conviction to be reversed would compromise
the constitutional right to trial by an impartial jury. Respectfully, these statements
are without substantive support. They are not supported by either the express
rationale of prior cases from this Court, extrajudicial studies, or even anecdotal
evidence that show a per se error rule is necessary to avoid impairing a party’s
state constitutional right to trial by jury. My point is best illustrated by a few
simple questions unanswered by the majority. Where is the evidence that the
constitutional right to trial by jury was impaired by the harmless error standard
prior to Hill or Trotter? What evidence is there of any such impairment in the
federal system or the majority of other states that require the proof of harm?
- 47 -
The majority says that “the curative use of a peremptory violates a
defendant’s right to a trial by impartial jury when that defendant can show that he
or she went without the peremptories needed to strike a seated juror.” Majority op.
at 26-27. This begs the real constitutional question. Unless this “seated juror” is
shown to be partial, how is the defendant’s constitutional right to trial by an
impartial jury deemed violated? The majority’s conclusion that the mere “loss” of
a peremptory challenge is always a violation of the right to a trial by an impartial
jury can only be true if (1) that “seated juror” is always deemed partial and (2) one
ignores the historical fact that correcting judicial errors “on the spot” is a primary
reason peremptories were originally granted to parties. Since I have already
addressed the historical purpose of peremptory challenges, I will speak only to the
first part. Without a requirement to show that the “seated juror” was objectionable,
one must either totally ignore the rebuttable presumption that a juror is impartial or
one must turn this presumption on its head. To do either flies in the face of
previous statements by this Court and the United States Supreme Court that there is
a rebuttable presumption that jurors are impartial. Irvin v. Dowd, 366 U.S. 717,
723 (1961); Kessler v. State, 752 So. 2d 545, 552 (Fla. 1999) (quoting Bundy v.
State, 471 So. 2d 9, 19-20 (Fla. 1985)).
Lastly, in its most extraordinary justification for maintaining the per se error
rule, the majority says it is concerned that a defendant required to show harm could
- 48 -
lose the ability to exercise all peremptories in situations where the trial court
wrongly, although not purposefully, denies cause challenges equal to the number
of peremptories granted and that without the Trotter per se reversal rule the
defendant would have no remedy. I find nothing to support this concern. As I
noted earlier, there is no evidence that any such problems have ever existed in
Florida’s trial courts. See supra note 4. And this concern is completely
unsupported in the record before us. There is nothing in the selection of Busby’s
jury that even hints at any such injustice. See supra note 1. Absent any historical
or record support for the concern about the wholesale loss of peremptories, I
believe we should exercise the same restraint that the United States Supreme Court
exercised sixteen years ago in Ross v. Oklahoma, 487 U.S. 81, 91 n.5 (1988), and
not answer a question that is not before us. In Ross, the United States Supreme
Court left this exact question open, and it has not had to address this open question
since. Respectfully, we should exercise the same restraint.
B. THE IMPACT OF TROTTER
What has been the true impact of Trotter’s per se error standard? I agree
with the majority’s analysis of the decisions in which this Court has addressed
denial of cause challenges under Trotter. These decisions demonstrate that this
Court’s application of the Trotter standard is not responsible for the “multitudes of
defendants seeking a new trial because of erroneously denied cause challenges.”
- 49 -
Nevertheless, this analysis ignores the impact of the per se reversal rule at the
intermediate appellate court level. There are a significant number of cases where
Florida district courts of appeal have reversed convictions and ordered new trials
where defendants arguably received a trial by a fair and impartial jury.26 These
reversals illustrate the point that “constitutionalizing the impairment of peremptory
challenges” runs counter to the Court’s decision in Ross and is hardly
“inconsequential” in view of the reality that “[t]rial courts . . . rule on cause
challenges by the minute,” United States v. Martinez-Salazar, 146 F.3d 653, 661
(9th Cir. 1998) (Rymer, J., concurring in part and dissenting in part), quoted in
United States v. Martinez-Salazar, 528 U.S. at 316, “often between shades of
gray.” Id.
The real irony of the majority’s approach is that despite the success of the
peremptory challenge mechanism in helping to achieve the ultimate goal of a fair
and impartial jury, reaching this goal is actually impaired by the Trotter per se
reversal rule because it forces trial courts to retry cases previously decided by fair
and impartial juries. Busby is just another example where one harmless error is the
26. For a representative sample of reversals, see, e.g., Bell v. State, 870 So.
2d 893 (Fla. 4th DCA 2004); Rodas v. State, 821 So. 2d 1150 (Fla. 4th DCA
2002); Rodriguez v. State, 816 So. 2d 805 (Fla. 3d DCA 2002); Taylor v. State,
796 So. 2d 570 (Fla. 2d DCA 2001); Mobley v. State, 774 So. 2d 782 (Fla. 2d
DCA 2000); Hall v. State, 682 So. 2d 208 (Fla. 3d DCA 1996); Davis v. State, 656
So. 2d 560 (Fla. 4th DCA 1995); Diaz v. State, 608 So. 2d 888 (Fla. 3d DCA
1992); Street v. State, 592 So. 2d 369 (Fla. 4th DCA 1992); Henry v. State, 586 So.
2d 1335 (Fla. 3d DCA 1991).
- 50 -
basis for reversing a trial by a fair and impartial jury. Such reversals are “costly to
the victims and to the judicial system,” State v. Hickman, 68 P.3d 418, 426 (Ariz.
2003), and “give[] a strong incentive to . . . state legislators to cut down the
number of peremptories—or eliminate them altogether.” United States v.
Annigoni, 96 F.3d 1132, 1150 (9th Cir. 1996) (Kozinski, J., dissenting).
IV. MODIFICATIONS TO THE TROTTER STANDARD
Because there is no federal or state constitutional right to peremptory
challenges, I believe we are bound to modify the per se reversal rule that this Court
has interpreted Trotter to require. As we acknowledged in DiGuilio, absent a
legitimate constitutional reason to override the legislative codification of the
harmless error rule in section 924.33, we must require that a defendant show actual
harm in order for a conviction to be reversed. DiGuilio, 491 So. 2d at 1134. In
other words, the defendant must meet the Trotter standards and must show that the
juror identified as being “objectionable” was indeed a legally objectionable juror,
i.e., a biased or partial juror. If the defendant makes such a showing, then harm
has been proven and a violation of the defendant’s constitutional right to a fair trial
has been established. In such a case, the defendant would be entitled to a new trial.
If the juror identified by the defendant as being objectionable is in actuality not
legally objectionable, the defendant has suffered no harm and is not entitled to a
- 51 -
new trial because any error in denying the challenge for cause was rendered
harmless.
V. APPLICATION TO BUSBY’S CASE
After the trial court erroneously denied Busby’s challenge for cause, Busby
identified jurors Liebel and Winston as “objectionable jurors.” However, Busby
did not challenge either of these jurors for cause. Liebel was dismissed during the
trial and therefore did not serve on the final jury and is of no consequence. Busby
objected to Winston because Winston’s son was a correctional officer. Winston
repeatedly stated that he could be impartial and would not be influenced by his
son’s occupation. Clearly, Winston was not a legally objectionable juror.
Therefore, Busby received what the constitution guarantees, a fair trial by an
impartial jury. The good-faith mistake made by the trial court in denying Busby’s
cause challenge to Lapan was corrected by the tool granted by the state to remedy
such errors made “in the heat of battle.”
VI. CONCLUSION
Although the challenge for cause of venireperson Lapan should have been
granted, no legally objectionable juror served on the jury, and it is clear that Busby
received a fair trial by an impartial jury. For this reason, I would not reverse
Busby’s conviction but would instead consider the merits of the other issues he
presents.
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WELLS and CANTERO, JJ., concur.
An Appeal from the Circuit Court in and for Columbia County,
E. Vernon Douglas, Judge - Case No. 00-897CF
Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,
for Appellant
Charles J. Crist, Jr., Attorney General and Cassandra K. Dolgin, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
- 53 -
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