Jessica J. Yeary, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Francis J. Allman, Judge.
Jessica J. Yeary, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Patrick Fleming appeals his conviction and sentence. He argues the trial court erred when it denied his motions to strike two prospective jurors for cause. We disagree and affirm.
During voir dire, Fleming's attorney posed several broad questions to the venire. One concerned a defendant's right not to testify. She asked the following question:
Q: Who here, if accused of a crime they did not commit, would absolutely get up there on that stand, raise their right hand and testify?
Several prospective jurors said they would want to testify. Two of them were James and Bennett. After posing the question, the following exchange occurred between Bennett and defense counsel.
A: I feel like I could have been in the wrong place at the wrong time and something appeared that it was not.
Q: Okay. So, you would absolutely want to testify in that case. A: Uh-huh, I would.
Defense counsel then asked the venire, if Fleming decided not to testify, if they would take that into consideration during deliberations. Bennett said that she would. After further questioning, however, she admitted that she did not "watch a lot of court shows" or "know a lot about the law." She stated that she thought "both people had to present a case."
Defense counsel approached James with a similar line of questioning:
Q: Ms. James, if you don't hear from Mr. Fleming in this case, is that something that you would consider when you're deliberating?
A: Probably in the back of my mind I would wonder, but I still think I could be fair.
Q: So, when you say that -- when you say, in the back of your mind, is that something that's going to concern you while you're deliberating?
A: Well, I would just wonder -- like for me, personally, when you asked if we would testify if we were accused, I would because I feel like you're fighting for your reputation. You're fighting for your future. And you should put words behind it.
A: I mean, I think it's important to stand up for yourself. That's just my personal opinion.
Q: And so, in this case, and we haven't decided yet, but if Mr. Fleming decides not to take the stand and testify, knowing you have that very strong personal belief, is that something that might concern you when you're deliberating in this case?
A: I mean, when you deliberate, you're supposed to look at all the evidence that was presented before you. And so that is the body of work. And that's what you base your deliberation and your thoughts on.
Q: And when you deliberate, you'll hear the Judge say that you can hear three different things: the evidence, the lack of evidence and the conflict in the evidence.
Q: And if you don't hear from Mr. Fleming, is that something that's going to come across your mind when you're deliberating?
A: Like I said, I would wonder why that person -- whoever it is, right -- would not want to put their words and fight for themself.
Q: So, it does sounds like that's something that you're going to consider when you're back deliberating. I just want to make sure I'm clear with your answer.
A: I mean, it depends on all the evidence. Q: Okay. So, you're not sure? It could affect you. A: That's fair to say I'm not sure.
The trial court then intervened and instructed the venire on the presumption of innocence and the burden of proof. Among other things, the trial court explained that Fleming did not have to prove his innocence or disprove anything. James then said that she would follow the law.
Defense counsel moved to challenge James and Bennett for cause. The trial court denied both motions. Defense counsel then used two peremptory challenges to strike James and Bennett and exhausted the remaining challenges. Defense counsel moved the court to provide an additional peremptory challenge to strike another prospective juror. That motion was also denied. That prospective juror served on the jury, which found Fleming guilty. This appeal follows.
Fleming argues that the trial court erred in denying his challenges for cause of prospective jurors Bennett and James because there was doubt about whether they could put aside their personal views and follow the law. The sufficiency of a cause challenge is a mixed question of law and fact within the purview of the trial judge and will only be reversed where there is an abuse of discretion. Johnson v. State, 969 So.2d 938, 946 (Fla. 2007).
The Florida Supreme Court long ago explained that the purpose of examining jurors through voir dire is "to obtain in every cause a fair and impartial jury, whose minds were free and clear of all such interest, bias, or prejudice as would seriously tend to militate against the finding of such a verdict as the very right and justice of the cause would in every case demand." Pinder v. State, 8 So. 837, 838 (Fla. 1891). Cause and peremptory challenges, following voir dire, are the tools afforded parties to obtain a fair and impartial jury. Somerville v. Ahuja, 902 So.2d 930, 935 (Fla. 5th DCA 2005). Section 913.03, Florida Statutes, sets forth the grounds for a cause challenge to an individual juror in a criminal case. A cause challenge is appropriate when a potential juror cannot be impartial. § 913.03(10), Fla. Stat. (a challenge for cause may be made when "[t]he juror has a state of mind . . . that will prevent the juror from acting with impartiality"). Prospective jurors must be excused if a reasonable doubt exists as to whether the juror possesses an impartial state of mind. Bryant v. State, 656 So.2d 426, 428 (Fla. 1995).
Yet courts also recognize that it is impossible for an individual to ignore all their previously held beliefs. Singer v. State, 109 So.2d 7, 24 (Fla. 1959). And so even the "formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be sufficient ground for challenge to a juror" so long as the court determines that she "can render an impartial verdict according to the evidence." § 913.03(10), Fla. Stat. The test for juror competency does not require an individual to lack feelings, opinions, or even preconceived notions about a case. Rather, the test is whether a juror can lay aside those feelings, opinions, and preconceived notions to render a verdict based solely upon the governing law and the evidence presented. Ferrell v. State, 697 So.2d 198, 199 (Fla. 2d DCA 1997).
After examining the record, we find that the trial court did not abuse its discretion in denying the cause challenges to James and Bennett. Neither met the standard for a cause challenge.
While James expressed that she would personally take the stand if accused of a crime, she never stated that she would require testimony from Fleming. When pressed by defense counsel on this point, she stated that a juror is supposed to consider "all of the evidence" before them. And the trial court rehabilitated James by explaining the applicable law and asking if she could follow it. See Conde v. State, 860 So.2d 930, 941 (Fla. 2003) ("[W]here a prospective juror's answers suggest incompetency to be a juror, rehabilitation by the prosecutor or judge is the proper next step."). James' later answers show that she could follow the law and that she would not consider Fleming's decision not to testify during deliberations. Her responses simply do not express the prejudice required to grant a cause challenge.
Bennett's responses similarly do not rise to the level of bias required to grant a cause challenge. She said that she would testify if accused of a crime. But she also emphasized that she was not familiar with the criminal justice system and that, before voir dire, she was under the mistaken impression that both sides had to present a case.
"[I]t is necessary for courts to distinguish between those biases and beliefs that define a prospective juror . . . and those in which information and explanation may provide a prospective juror with the 'requisite familiarity' and insight into the judicial process that will render him or her competent to serve." Matarranz v. State, 133 So.3d 473, 486-87 (Fla. 2013). Bennett's unfamiliarity with the court system did not rise to the level of a bias or belief that would "define" her. Any potential bias she expressed was attributed to her lack of knowledge about courtroom procedures. And Bennett's other answers to defense counsel's various questions throughout voir dire demonstrated that she understood the presumption of innocence and the State's burden of proof.
We pause to address more generally the voir dire approach used here. The inquiry began with a setup question playing to the universal human instinct to defend oneself-"Who here, if accused of a crime they did not commit, would absolutely get up there on that stand, raise their right hand and testify?" Unsurprisingly, several prospective jurors said that they thought they would. Having cornered the prospective jurors, counsel turned the table on them-Well then, "if Mr. Fleming decides not to take the stand and testify, knowing you have that very strong personal belief, is that something that might concern you when you're deliberating in this case?" And now the citizen, summoned away from her daily life to take up the civic duty of jury service, begins to squirm uncomfortably in her chair feeling, justifiably, that her words have been twisted against her.[*] Voir dire should not be a gotcha game.
The common voir dire tactic employed here often fails because it is plainly used to manufacture a cause challenge rather than to seriously inquire into juror partiality. The right to remain silent and the burden of proof in criminal cases are so important, in part, because the concepts run against our human instinct. It is exactly because most people think an innocent person would testify in his own defense that we have the legal doctrine in the first place. It is the reason we explain to jurors that, despite their instinct, they cannot weigh a defendant's failure to testify against him. Of course they will notice when the defendant does not take the stand. And quite naturally during the State's case they will wonder what the defense will have to say about all this. Jurors are human and do not stop being so because they sit in the jury box. But despite their ordinary curiosity, they cannot hold it against the defendant when he does not testify, or, for that matter, when the defense presents nothing at all. A modified version of this voir dire technique may be useful to help jurors identify their instincts and then to explain their responsibilities given them. But questioning that simply draws out the known human desire to defend oneself is insufficient to sustain a cause challenge.
Both jurors here stated they could set aside their personal views and follow the law. See Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984). Neither James' nor Bennett's responses support the conclusion that they could not render a verdict based solely on the evidence presented at trial and the instructions on the law given to them by the trial court. We therefore affirm the trial court's denial of both cause challenges.
ROWE, CJ, and LEWIS, J, concur
[*] Even then James answered correctly that "when you deliberate, you're supposed to look at all the evidence that was presented before you. And so that is the body of work. And that's what you base your deliberation and your thoughts on."