GEOVANI JOHNSON v. STATE OF FLORIDA ( 2018 )


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  •           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    GEOVANI JOHNSON,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    Nos. 4D15-4452, 4D15-4519 and 4D15-4539
    [August 22, 2018]
    Consolidated appeal from the Circuit Court for the Seventeenth Judicial
    Circuit, Broward County; Kathleen McHugh, Judge; L.T. Case Nos. 13-
    011816CF10A, 13-012248CF10A and 14-013212CF10A.
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
    Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
    Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
    Acuña, Assistant Attorney General, West Palm Beach, for appellee.
    CONNER, J.
    Geovani Johnson (“Defendant”) appeals his convictions and sentences
    from three cases. We consolidated the appeals. Defendant contends the
    trial court erred by: (1) failing to conduct a proper Melbourne 1 analysis to
    a peremptory challenge by the State; and (2) violating Defendant’s Sixth
    Amendment confrontation right by allowing the State to introduce a 911
    call. We affirm on the Sixth Amendment issue without discussion. But
    because we agree the trial court did not comply with Melbourne, we reverse
    Defendant’s convictions and sentences and remand for a new trial. The
    ultimate question we answer in this case is whether the Melbourne
    procedure is always a three-step process, or a three-step process if
    requested. We determine that the Melbourne procedure is indeed always
    1   Melbourne v. State, 
    679 So. 2d 759
    (Fla. 1996)
    a three-step process.
    Background
    Defendant was charged with three counts of robbery with a firearm and
    one count of possession of a firearm by a convicted felon. The case
    proceeded to a jury trial.
    During jury selection, the State exercised a peremptory challenge on
    Juror No. 10, an African-American male. At Defendant’s request, the trial
    court asked the state for a race-neutral reason for the strike. The State
    responded:
    The State does have a race-neutral reason. [Juror No. 10]
    indicated that he would prefer CSI evidence.[ 2] Additionally,
    the Defense has stricken two black females in their first round
    of strikes. They’ve also stricken black individuals for cause.
    And this is --
    Cutting off the State, the trial court stated: “All right. Okay. I find that
    to be [a] race-neutral reason. I’m going to uphold State’s use of a
    peremptory on [Juror No. 10].” Defendant did not make any further
    objection or argument at that time. However, at the conclusion of the jury
    selection process, when asked if each side accepted the panel of jurors,
    the defense advised the panel was not acceptable, in part because the trial
    court “denied my Melbourne vs. State objection to the State striking [Juror
    No. 10].”
    The jury found Defendant guilty of three counts of robbery with a
    weapon, lesser-included offenses, and not guilty of possession of a firearm
    by a convicted felon.     The court entered judgment and sentenced
    Defendant to concurrent prison terms for the three robberies. Defendant
    gave notice of appeal.
    Appellate Analysis
    We review a trial court’s decision to uphold or deny a peremptory
    challenge for abuse of discretion. Truehill v. State, 
    211 So. 3d 930
    , 942
    (Fla. 2017). As a reviewing court, we must presume that peremptory
    challenges are exercised in a nondiscriminatory manner. Poole v. State,
    
    151 So. 3d 402
    , 409 (Fla. 2014).
    2   “CSI” refers to the television show Crime Scene Investigation.
    2
    “Under Florida law, a party’s use of peremptory challenges is limited
    only by the rule that the challenges may not be used to exclude members
    of a ‘distinctive group.’” San Martin v. State, 
    705 So. 2d 1337
    , 1343 (Fla.
    1997).
    [T]o strike the appropriate balance between a party’s right to
    exercise peremptory challenges and the attempt to eliminate
    invidious discrimination in juror selection, [our supreme
    court] in Melbourne enunciated a three-step procedure to be
    followed when a party objects to the exercise of a peremptory
    challenge on the ground that it was made on [an improper]
    discriminatory basis.[[3]]
    Hayes v. State, 
    94 So. 3d 452
    , 460-61 (Fla. 2012) (emphasis added). Based
    on the United States Supreme Court’s holdings in Batson v. Kentucky, 
    476 U.S. 79
    (1986) and Purkett v. Elem, 
    514 U.S. 765
    (1995), and Neil-Slappy 4
    case law, the procedure was stated as consisting of three steps:
    Step 1: Objection and Prima Facie Case
    A party objecting to the other side’s use of a peremptory
    challenge on racial grounds must: a) make a timely objection
    on that basis; b) show that the venireperson is a member of a
    distinct protected group; and c) request that the court ask the
    striking party its reason for the strike.
    Step 2: Race-Neutral Explanation
    The court must then ask the proponent of the strike to explain
    the reason for the strike. At this point, the burden of
    production shifts to the proponent of the strike to come
    forward with a race-neutral explanation.
    Step 3: Determination of Genuineness
    If the explanation is facially race-neutral and the court
    believes that, given all the circumstances surrounding the
    strike, the explanation is not a pretext, the strike will be
    3 In Melbourne, the Court stated that State v. Neil, 
    457 So. 2d 481
    (Fla. 1984) was
    “[a] seminal Florida case . . . wherein this Court set out a procedure for dealing
    with racially-motivated peremptory challenges.” 
    Melbourne, 679 So. 2d at 763
    (emphasis added).
    4State v. Neil, 
    457 So. 2d 481
    (Fla. 1984); State v. Slappy, 
    522 So. 2d 18
    (Fla.
    1988).
    3
    sustained.    The court’s focus here is not on the
    reasonableness of the explanation but rather its genuineness.
    See 
    Melbourne, 679 So. 2d at 763
    -64; 
    Hayes, 94 So. 3d at 461
    . In
    interpreting the true scope of the Melbourne procedure, we will rely on case
    law generated by Batson and Purkett and its progeny, especially two
    decisions from the United States Supreme Court.
    Step 3 of the Melbourne (Batson) Procedure
    Defendant’s appeal focuses on Step 3 of the Melbourne procedure.
    Relying on Hayes, Defendant contends the record does not support a
    conclusion that the trial court properly conducted Step 3. Specifically,
    Defendant argues the trial court did not review, analyze, or conduct any
    “judicial assessment” of the reasons given by the State for striking Juror
    No. 10; instead, the trial court summarily ratified the peremptory
    challenge. Additionally, Defendant argues the “cold record” is “devoid of
    any indication” that the trial court “considered or weighed any relevant
    circumstances in deciding whether the State’s strike was discriminatory.”
    The State responds, arguing a lack of preservation because Defendant
    failed to raise an issue of noncompliance with Melbourne below. As to the
    merits of Defendant’s arguments, the State also relies on Hayes,
    contending that when a defendant objects to the State’s exercise of a
    peremptory challenge, and the trial court upholds the strike, the defendant
    carries the burden of persuasion that the State’s strike was exercised in a
    discriminatory manner. The State contends the record shows the trial
    court complied with Step 3. Relying on Lidiano v. State, 
    967 So. 2d 972
    ,
    975 (Fla. 3d DCA 2007), the State argues that “[t]he trial court is not
    required to orally perform its genuineness analysis or to articulate the
    basis for its ruling.” Moreover, the State contends that because it pointed
    out, in providing its race-neutral reason for striking Juror No. 10, that the
    defense had stricken two black females in the defense’s first round of
    strikes, after the State had twice accepted the jury panel including those
    jurors, the record reflects that the trial court was aware of and considered
    the circumstances relevant to determining if a strike was improperly
    discriminatory and implicitly found there was no pretext in the strike.
    Spencer v. State
    Melbourne was decided in 1996. Twenty-two years later, courts still
    struggle with its proper application. Over the years, the case law has
    focused increasingly on Step 3 of the Melbourne procedure.          The
    unresolved troublesome aspects of what Step 3 means and what it involves
    is perhaps best demonstrated by our supreme court’s most recent opinion
    4
    on the subject, Spencer v. State, 
    238 So. 3d 708
    (Fla. 2018). The Spencer
    opinion reveals a divided court on the issue of the preservation
    requirements for a Melbourne noncompliance claim. Ultimately, all of the
    justices agreed with the Second District that Spencer’s conviction should
    not be reversed for noncompliance with Melbourne. 
    Id. at 716.
    In a
    plurality opinion, three justices agreed the Melbourne noncompliance
    claim was preserved. 
    Id. at 718.
    Two justices concurred in result, with
    an opinion disagreeing that the claim was preserved, suggesting that the
    court recede from language in Hayes, and readopt the court’s prior
    preservation reasoning in Floyd v. State, 
    569 So. 2d 1225
    (Fla. 1990). 
    Id. at 719-20
    (Lawson, J., concurring in result). Two justices concurred in
    result without an opinion. 
    Id. at 718.
    In Spencer, the supreme court considered a certified question from the
    Second District. 
    Id. at 711.
    On direct appeal, the Second District upheld
    Spencer’s conviction, determining that his claim that the trial court did
    not comply with Step 3 of Melbourne was not preserved. Spencer v. State,
    
    196 So. 3d 400
    , 401 (Fla. 2d DCA 2016). As to one prospective juror,
    Spencer never asserted the State’s reason for the strike was a pretext. 
    Id. at 410.
    As to the other prospective juror, Spencer did not object to the
    manner in which the trial court conducted the Melbourne procedure. 
    Id. The Second
    District opined that the trial court was not required to perform
    a full genuineness analysis on the record every time a party initiates a
    Melbourne challenge, and if the opponent of the strike wants the trial court
    to determine the genuineness of the reason proffered for the strike, the
    opponent “must expressly make a claim of pretext and at least attempt to
    proffer the circumstances that support its claim.” 
    Id. at 401.
    After
    conducting an extensive analysis of the law regarding Step 3, the Second
    District wrote: “It is true that the trial courts must make the three
    decisions required by Melbourne if requested, but the parties are not
    entitled to sit back and have the court go through this process for them.”
    
    Id. at 409
    (bold emphasis added).
    The Second District certified a three-part question of great public
    importance:
    During a Melbourne hearing, when a trial court finds that the
    proponent’s reason for a peremptory challenge is facially
    neutral, is it the burden of the opponent (1) to claim the
    reason is a pretext, (2) to place into the record the
    circumstances supporting its position, and (3) to object if the
    trial court’s ruling does not contain adequate findings on the
    issue of genuineness?
    5
    
    Id. at 411.
    The plurality opinion of the supreme court began its analysis with the
    observation that, “[t]he real issue presented here is whether our decision
    in Melbourne requires a trial court to strictly adhere to the procedure as
    outlined in Melbourne and its progeny.” 
    Spencer, 238 So. 3d at 711
    .
    Rejecting the elevation of form over substance, the plurality agreed with
    the Second District that strict adherence to the Melbourne procedure is not
    required. 
    Id. The plurality
    sought “to clarify that preservation of an issue
    under Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986), does not require anything more than what we have previously
    articulated,” citing Melbourne and Joiner v. State, 
    618 So. 2d 174
    , 176 (Fla.
    1993). 
    Id. After discussing
    a progression of case law from 1984 to 2004, 5 the
    plurality then discussed some of the pronouncements in the Court’s 2012
    Hayes opinion. 
    Id. at 712-15.
    Critical to its position, the plurality relied
    on two statements in Hayes:
    [W]here the record is completely devoid of any indication that
    the trial court considered circumstances relevant to whether
    a strike was exercised for a discriminatory purpose, the
    reviewing court, which is confined to the cold record before it,
    cannot assume that a genuineness inquiry was actually
    conducted in order to defer to the trial court.
    and
    We emphasize that under the final step, the step at issue in
    this case, if the proponent’s reason for the challenge is race-,
    ethnicity-, or gender-neutral, then the trial court should
    inquire of the opponent of the strike.
    
    Id. at 715
    (quoting 
    Hayes, 94 So. 3d at 463
    , 467). Immediately thereafter,
    the plurality said:
    Spencer argues that this Court should answer the certified
    question in the negative because the third step of Melbourne,
    like Batson, is a decisional step where the trial judge evaluates
    the parties’ persuasiveness after considering all relevant
    5In chronological order, the cases discussed were: Neil; Batson; Slappy; Floyd;
    Joiner; Purkett; Melbourne; Rodriguez v. State, 
    753 So. 2d 29
    (Fla. 2000); and
    Dorsey v. State, 
    868 So. 2d 1192
    (Fla. 2003).
    6
    circumstances. Spencer argues that the preservation occurs
    in step one that can only be waived as articulated in Joiner v.
    State, 
    618 So. 2d 174
    , 176 (Fla. 1993), by failing to renew
    objections before the jury is empaneled. Alternatively, the
    State argues that because the opponent of a peremptory strike
    bears the burden of persuasion, that burden should include
    expressly stating a claim of pretext and presenting facts and
    argument to support such a claim. We agree with both
    arguments.
    
    Id. (emphasis added)
    (footnote omitted). In rejecting the Second District’s
    opinion regarding preservation, the plurality said:
    Although the Second District acknowledges that “[i]t is
    unquestionably the better practice for the trial court, having
    made a determination of neutrality under step 2 of the
    Melbourne analysis, to ask the opponent whether he or she
    wishes to challenge the genuineness of the proponent’s
    reason,” it nevertheless holds that there is “no reason to
    reverse a judgment and sentence following an entire trial
    when the trial court omits this step without objection from
    anyone.” 
    Spencer, 196 So. 3d at 407
    . We disagree with this
    statement because it is contradictory to the plain language of
    Hayes. 
    Hayes, 94 So. 3d at 461
    (“Compliance with each step
    [of Melbourne] is not discretionary, and the proper remedy
    when the trial court fails to abide by its duty under the
    Melbourne procedure is to reverse and remand for a new
    trial.”).
    While we were not “abandoning requirements for full
    preservation in Hayes,” 
    Spencer, 196 So. 3d at 408
    , Hayes
    provides that the trial court has a duty to perform the correct
    legal analysis independent of trial counsel’s duty. 
    Hayes, 94 So. 3d at 465
    (“Since the reason defense counsel offered was
    facially gender neutral, the trial court was then required to
    engage in step three—the genuineness analysis.”); see also
    
    Batson, 476 U.S. at 98
    , 
    106 S. Ct. 1712
    (after the prosecution
    articulates a neutral explanation “[t]he trial court then will
    have the duty to determine if the defendant has established
    purposeful discrimination.”); 
    Slappy, 522 So. 2d at 22
    (“[A]
    judge cannot merely accept the reasons proffered at face
    value, but must evaluate those reasons as he or she would
    weigh any disputed fact.”). Here, the trial judge performed his
    duty when he requested a response from defense counsel
    7
    immediately after the State provided its purported race-neutral
    reason and before the trial court ruled on the genuineness of
    the reason.
    
    Id. at 716
    (alterations in original) (emphases added). Upon that reasoning,
    the plurality concluded the trial court complied with the Melbourne
    procedure and affirmed the Second District’s conclusion there was no
    reversible error. 
    Id. at 718.
    While concurring with the result, the concurring opinion viewed some
    of the principles discussed in Hayes and relied upon by the plurality as
    dicta. 
    Id. at 718-20,
    724 (Lawson, J., concurring in result). Rejecting the
    dicta, the concurring opinion relied on principles discussed in Floyd,
    which requires the opposing counsel to challenge the proffered race-
    neutral explanation to preserve the issue. 
    Id. at 718.
    The concurring
    opinion felt it was time to resolve the seeming conflict between Floyd and
    Hayes, and asserted the Court should recede from the dicta in Hayes. 
    Id. at 720.
    Although the concurring opinion did not expressly adopt the “if
    requested” language of the Second District in Spencer, the concurring
    opinion appears to have asserted that approach. The concurring opinion
    stated three reasons for agreeing with the Second District. 
    Id. In stating
    the second reason, the concurring opinion wrote:
    Second, contrary to the assertion in Hayes, the trial judge
    does not need to “undertake an on-the-record genuineness
    inquiry” in the absence of any challenge to the race-neutral
    reason to allow for “meaningful appellate review.”          As
    explained in Melbourne, if the opponent of the strike does not
    make a record from which the trial court’s decision can be
    challenged on appeal as “clearly erroneous,” the trial judge’s
    ruling “will be affirmed.”
    
    Id. at 721
    (emphases added) (citation omitted).
    Post-Spencer Analysis
    Until a majority opinion by our supreme court says otherwise, in this
    District, we contend there arguably is no conflict between Hayes and
    Floyd. We further hold that the Melbourne procedure is indeed a three-
    step process, and the intent of our supreme court, in adopting the
    procedure, was to require that all the steps be followed. We reject the
    notion that the three-steps are required only “if requested.”
    8
    Our premise is that the three-step procedure stated in Melbourne is
    analogous to the procedures used by the judiciary to address claims of
    discovery violations during a criminal trial and assertions of the
    defendant’s incompetence to proceed in criminal prosecutions.
    When a claim is made during a criminal trial that there has been a
    discovery violation, the trial court must engage in a process of analysis,
    regardless of whether the proponent of the objection requests a
    Richardson 6 hearing. Jones v. State, 
    32 So. 3d 706
    , 710-11 (Fla. 4th DCA
    2010) (determining that the Richardson hearing requirement applies to a
    possible discovery violation, even if the defendant does not request a
    Richardson hearing). Likewise, if a defendant in a criminal prosecution
    makes an initial showing of incompetence to proceed, the trial court must
    take certain steps before proceeding, regardless of whether the defendant
    pursues the matter or not. Dougherty v. State, 
    149 So. 3d 672
    , 677-78
    (Fla. 2014) (determining that once a trial court has reasonable grounds to
    believe the defendant is incompetent and orders an examination, failure
    to make an independent determination regarding a defendant’s
    competency to stand trial is reversible error); Dortch v. State, 
    242 So. 3d 431
    , 433 (Fla. 4th DCA 2018) (determining that once a trial court has
    reasonable grounds to believe the defendant is incompetent and orders an
    examination, failure to hold a hearing constitutes fundamental error which
    can be addressed for the first time on appeal). The rationale for imposing
    such duties on the trial court is to assure the integrity and rudimentary
    fairness of the proceedings (prohibiting trial by ambush or criminally
    punishing someone who is incompetent).
    In our view, elements of the Melbourne procedure impose a duty on trial
    courts, separate and apart from the duties of the advocates, for similar
    reasons. That is to say, Melbourne imposes some procedural requirements
    as a duty on trial courts that do not require objections at each step to
    preserve the matter for appellate review; however, with regards to factual
    accuracy of assertions by the proponent of a peremptory strike, the
    standard preservation requirements apply.
    We conclude that at a minimum, Melbourne imposes a duty on trial
    courts at Step 3 to request a response to the proffered explanation from
    the opponent of a peremptory challenge once Step 2 has been completed.
    We continue to adhere to our prior case law that “the Melbourne procedure
    does not require the trial court to recite a perfect script or incant specific
    words in order to properly comply with its analysis under [S]tep [3].” Denis
    6   Richardson v. State, 
    246 So. 2d 771
    (Fla. 1971).
    9
    v. State, 
    137 So. 3d 583
    , 586 (Fla. 4th DCA 2014) (citing 
    Hayes, 94 So. 3d at 463
    ). We continue to agree with the plurality opinion in Spencer that:
    [W]here the record is completely devoid of any indication that
    the trial court considered circumstances relevant to whether
    a strike was exercised for a discriminatory purpose, the
    reviewing court, which is confined to the cold record before it,
    cannot assume that a genuineness inquiry was actually
    conducted in order to defer to the trial court.
    
    Spencer, 238 So. 3d at 715
    (quoting 
    Hayes, 94 So. 3d at 463
    ); see also R.J.
    Reynolds Tobacco Co. v. Enochs, 
    226 So. 3d 872
    , 874 (Fla. 4th DCA 2017)
    (same); West v. State, 
    168 So. 3d 1282
    , 1285 (Fla. 4th DCA 2015) (same);
    
    Denis, 137 So. 3d at 586
    (same); Burgess v. State, 
    117 So. 3d 889
    , 891
    (Fla. 4th DCA 2013) (same); King v. State, 
    106 So. 3d 966
    , 968 (Fla. 4th
    DCA 2013) (same); Victor v. State, 
    126 So. 3d 1171
    , 1172 (Fla. 4th DCA
    2012) (same); Cook v. State, 
    104 So. 3d 1187
    , 1190 (Fla. 4th DCA 2012)
    (same). 7 Also relying on Hayes, we have said that “[c]ompliance with each
    step [of the Melbourne procedure] is not discretionary, and the proper
    remedy when the trial court fails to abide by its duty under the Melbourne
    procedure is to reverse and remand for a new trial.” 
    King, 106 So. 3d at 968
    (quoting 
    Hayes, 94 So. 3d at 461
    ); see also Welch v. State, 
    992 So. 2d 206
    , 212 (Fla. 2008) (determining a failure to follow Melbourne procedure
    constitutes reversible error).
    As mentioned, however, we also continue to adhere to our prior case
    law that the opponent of a peremptory challenge who contests the factual
    assertions on which the strike is based must comply with the usual
    requirements for preservation. See Hoskins v. State, 
    965 So. 2d 1
    , 9 (Fla.
    2007) (stating that the defendant’s failure to question the facts on which
    the strike was based waived the issue for review); 
    Denis, 137 So. 3d at 585
    ;
    Doe v. State, 
    980 So. 2d 1102
    , 1104 (Fla. 4th DCA 2008) (affirming the
    trial court’s decision to sustain the peremptory strike because “[d]efense
    counsel did not challenge the facts on which the strikes were based and
    thus failed to preserve this issue for appellate review”).
    Like the plurality opinion in Spencer, we disagree with the Second
    District’s premise that “[i]t is true that the trial courts must make the three
    7 The dissent points out that these cases do not involve “a situation in which
    counsel for the defendant failed to challenge the race-neutral reason.” However,
    the cases are cited as support for the quote and not to specifically negate the
    premise that Melbourne requires three steps only if the opponent of the strike
    continually makes specific objections about the procedure.
    10
    decisions required by Melbourne if requested. . . .” 
    Spencer, 196 So. 3d at 409
    (bold emphasis added). In our view, such a premise suggests, at
    best, that only the first two steps of the Melbourne procedure are
    mandatory. 8 Such a premise ignores that Step 3, in our view, is the
    penultimate decision and raison d’etre for the analysis. Without Step 3,
    the protection against an improper discriminatory peremptory challenge is
    lost.
    The primary problem with the assertion that the Melbourne procedure
    does not always have to be a three-step process is that it ignores what we
    deem to be key language in United States Supreme Court case law, starting
    with Purkett. The discussion of the facts in Purkett does not make it clear
    what response, if any, Purkett made when the state proffered its race-
    neutral reasons for the preemptory strikes against two black men. What
    is clear is that the Supreme Court said:
    If a race-neutral explanation is tendered, the trial court must
    then decide (step three) whether the opponent of the strike has
    proved purposeful racial discrimination.
    
    Purkett, 514 U.S. at 767
    (emphasis added). Additionally, the Court wrote:
    “The Court of Appeals erred by combining Batson’s second and third steps
    into one. . . .” 
    Id. at 768.
    Such language indicates that each of the three
    steps are independently vital and significant.
    Perhaps the strongest argument to be made that the Melbourne
    procedure is a three-step process that does not require the preservation
    requirements asserted by the Second District, the concurring opinion in
    Spencer, and the dissent in this case, comes from a review of United States
    Supreme Court case law subsequent to Purkett. Two opinions are
    pertinent to our analysis: Johnson v. California, 
    545 U.S. 162
    (2005); and
    Foster v. Chatman, 
    136 S. Ct. 1737
    (2016). From a review of those two
    cases, it does not appear that the Supreme Court requires a specific
    preservation argument to be made to prevail on a Batson challenge;
    instead, the challenge can be upheld years later, based on the appellate
    record.
    In Johnson, although the Court addressed Step 1 of the Batson
    analysis, it is persuasive here. Johnson was convicted of second degree
    murder by a California jury. 
    Johnson, 545 U.S. at 164
    . At trial, he
    asserted a race-based challenge to the state’s preemptory strikes of black
    8 However, the Second District’s opinion could also be read to mean that
    compliance with Step 2 is not mandatory unless requested.
    11
    prospective jurors. 
    Id. at 165.
    The trial court did not ask the prosecutor
    to explain the rationale for his strikes; instead, the trial court simply found
    that Johnson had failed to establish a prima facie case of discrimination
    under the governing state precedence. 
    Id. The Supreme
    Court began its
    analysis by pointing out that in Batson, the Court remanded the case for
    further proceedings because the trial court failed to demand an
    explanation from the prosecutor for the preemptory challenge. 
    Id. at 169-
    70. The Court then wrote:
    [I]n describing the burden-shifting framework, we assumed in
    Batson that the trial judge would have the benefit of all
    relevant    circumstances,    including    the   prosecutor’s
    explanation, before deciding whether it was more likely than
    not that the challenge was improperly motivated.
    
    Id. at 170.
    After referencing the Batson requirement that the opponent of
    the strike carries the burden of persuasion, the Court then wrote:
    [E]ven if the State produces only a frivolous or utterly
    nonsensical justification for its strike, the case does not end—
    it merely proceeds to step three. The first two Batson steps
    govern the production of evidence that allows the trial court
    to determine the persuasiveness of the defendant’s
    constitutional claim.
    
    Id. at 171
    (footnote omitted) (internal citation omitted). The Court then
    opined:
    The three-step process thus simultaneously serves the public
    purposes Batson is designed to vindicate and encourages
    “prompt rulings on objections to peremptory challenges
    without substantial disruption of the jury selection process.”
    
    Id. at 172-73
    (quoting Hernandez v. New York, 
    500 U.S. 352
    , 358-59
    (1991)). Although it is not clear from the opinion that preservation was
    raised as an issue in the case, what is clear is that the Supreme Court
    envisioned the first two steps of the Batson procedure as the steps
    involving the production of evidence in order for the trial court to conduct
    a proper analysis in the third step. It seems implicit in the Supreme
    Court’s reasoning that if a specific preservation objection is required, then
    it would have addressed the issue of Johnson’s failure to object and secure
    a ruling as to Step 2, and conclude the Batson challenge was properly
    denied by the trial court.
    12
    In Foster, the Supreme Court granted certiorari review of a Georgia
    death penalty conviction and sentence. 
    Foster, 136 S. Ct. at 1743
    . There,
    the state exercised nine of its ten allotted peremptory strikes, removing
    four black prospective jurors. 
    Id. Foster immediately
    lodged a Batson
    objection, which was rejected by the trial court. 
    Id. After the
    judgment
    and sentence was upheld by the Georgia Supreme Court, Foster sought
    habeas relief in state court.      
    Id. During the
    state court habeas
    proceedings, Foster obtained a series of documents from the prosecution
    files, clearly suggesting the prosecutor’s office used race in evaluating
    which prospective black jurors would be subject to a preemptory strike.
    
    Id. at 1744-45.
    The state court denied habeas relief based on res judicata.
    
    Id. at 1745.
    Because both sides conceded that Steps 1 and 2 of Batson had been
    met, the Supreme Court addressed only Step 3. 
    Id. at 1747.
    Foster
    focused his Batson claim on two prospective jurors, for whom the state
    proffered multiple reasons during trial for the strike as to both. 
    Id. at 1748.
    As to one of the stricken prospective jurors, for whom the state
    offered eleven reasons for the strike, the Court noted that the trial court
    accepted the state’s justifications, concluding that “‘[i]n the totality of
    circumstances,’ there was ‘no discriminatory intent, and that there existed
    reasonably clear, specific, and legitimate reasons’ for the strike.” 
    Id. at 1748-49
    (alteration in original).       However, based on the Court’s
    independent examination of the record, it concluded that much of the
    reasoning provided by the state “ha[d] no grounding in fact.” 
    Id. at 1749.
    As to the second prospective juror, for whom the state proffered eight
    reasons for the strike, the Court noted that the state’s reasons for the
    strike were inconsistent before the trial court, focusing its argument on
    only one concern, and the state’s justification for the strike shifted over
    time in the post-trial proceedings. 
    Id. at 1751-52.
    The Court also observed
    that many of the state’s justifications “come undone when subjected to
    scrutiny.” 
    Id. at 1753.
    Additionally, as to both stricken prospective jurors,
    the Court noted that many of the proffered reasons applied to white
    prospective jurors, for whom the state did not exercise a strike. 
    Id. at 1750.
    Thus, the Supreme Court reversed the conviction and remanded
    the case for further proceedings. 
    Id. at 1755.
    What is instructive about Foster is that the Supreme Court determined
    there was a Batson violation on proffered reasons for a preemptory strike
    that “[came] undone” after an extensive review of the record. If objections
    were made discussing any details regarding the proffered explanations, it
    is likely the Court would have discussed the objections or alluded to them.
    Because there is no discussion of such points, it appears the United States
    13
    Supreme Court does not impose a specific objection in order to conduct an
    appellate review of the trial court’s compliance with Batson.
    The Dissent’s Analysis
    The dissent cites ten cases in support of its contention that Melbourne
    does not always require three steps, but does require a specific objection
    to preserve a claim of pretext. However, four of the cases were decided
    before Purkett. 9 Prior to Purkett, the contention that Batson requires three
    steps was only approved by the plurality opinion in Hernandez.
    Additionally, in Hernandez, the Court said “[o]nce a prosecutor has offered
    a race-neutral explanation for peremptory challenges and the trial court
    has ruled on the ultimate question of intentional discrimination, the
    preliminary issue of whether the defendant had made a prima facie
    showing of intentional discrimination becomes moot.” 
    Hernandez, 500 U.S. at 359
    .      As discussed below, that language was erroneously
    interpreted to mean that once a trial court rules on a Batson objection,
    9The four cases are: United States v. Arce, 
    997 F.2d 1123
    (5th Cir. 1993); Hopson
    v. Fredericksen, 
    961 F.2d 1374
    (8th Cir. 1992); United States v. Bennett, 
    928 F.2d 1548
    (11th Cir. 1991); and United States v. Rudas, 
    905 F.2d 38
    (2d Cir. 1990).
    Arce is not helpful to the analysis because it relies on Rudas, which is discussed
    
    below. 997 F.2d at 1127
    .
    Hopson is not helpful to the analysis because the issue was the failure of the
    judge to articulate the reason for overruling the Batson 
    objection. 961 F.2d at 1377-78
    . Neither the United States Supreme Court nor the Florida Supreme
    Court has ever imposed such a requirement.
    In Bennett, the Fifth Circuit held that “the government’s articulated reasons are
    not pretextual as a matter of law. Opportunity to rebut the government’s reasons
    would therefore have been to no avail. Consequently, we need not address
    Bennett’s secondary argument [that the trial court failed to allow Bennett to rebut
    the explanation] at this juncture.” 
    Bennett, 928 F.2d at 1550
    n.1. Clearly, the
    theory of waiver approved by the Fifth Circuit is questionable, given its conclusion
    that articulated reasons are not pretextual as a matter of law.
    The problem with Rudas is that the Second Circuit asserted that “[o]nce the
    Government has offered reasons for its peremptory challenges, defense counsel
    must expressly indicate an intention to pursue the Batson claim,” with no citation
    of 
    authority. 905 F.2d at 41
    .
    14
    even without determining if the proffered reasons are genuine, the prima
    facie showing of intentional discrimination becomes moot.
    The case which appears to be the strongest support for the dissent’s
    position is Davis v. Baltimore Gas & Electric Company, 
    160 F.3d 1023
    (4th
    Cir. 1998), in which the Fourth Circuit said: “The court has no obligation
    to guide the movant, step-by-step, through the requirements of his own
    objection.” 
    Id. at 1028.
    However, Davis does not mention Purkett at all,
    and instead, misapplied Hernandez, which also predated Purkett. 
    Id. at 1026-27.
    Immediately after stating the quote from Hernandez discussed above,
    the Fourth Circuit said:
    Fourth Circuit law endorses the Supreme Court’s holding in
    Hernandez.      Prior to the Court’s pronouncement in
    Hernandez, the Fourth Circuit held that when racially neutral
    reasons are proffered, it is unnecessary to determine whether
    a prima facie case was actually demonstrated. So, since
    Defendant volunteered racially neutral reasons for its strikes,
    the prima facie determination is moot.
    
    Davis, 160 F.3d at 1027
    (internal citations omitted). In other words, the
    Fourth Circuit completely ignored Step 3 discussed in Hernandez (which
    Purkett amplified further) to conclude that a racially neutral proffered
    explanation ends the Batson inquiry.
    The remainder of the cases cited by the dissent are also unpersuasive,
    because in those cases, either the trial court gave the opponent of the
    strike the opportunity to respond, 10 or at least, there is not enough
    information to determine whether the trial court did, 11 or the cases do not
    rely on Purkett and rely on pre-Purkett cases. 12
    The dissent voices a legitimate concern that “the goal has become the
    process.” Justice O’Connor may have expressed the fear best when she
    observed that by “constitutionalizing jury selection procedures . . . jury
    selection—once a sideshow—will become the main event.” J.E.B. v.
    Alabama ex rel. T.B., 
    511 U.S. 127
    , 147 (1994) (O’Connor, J., concurring).
    10 United States v. Vann, 
    776 F.3d 746
    (10th Cir. 2015); State v. Washington, 
    288 S.W.3d 312
    (Mo. Ct. App. 2009); Adair v. State, 
    336 S.W.3d 680
    (Tex. Crim. App.
    2010).
    11 Wright v. Harris Cty., 
    536 F.3d 436
    (5th Cir. 2008); People v. Alvarado, 
    759 N.Y.S.2d 659
    (N.Y. App. Div. 2003).
    12 
    Wright, 536 F.3d at 436
    ; United States v. Jackson, 
    347 F.3d 598
    (6th Cir. 2003).
    15
    Nonetheless, it must be remembered that the procedure espoused by
    Batson by a majority of the Supreme Court and adopted in Melbourne “was
    designed ‘to serve multiple ends,’ only one of which was to protect individual
    defendants from discrimination in the selection of jurors.” Georgia v.
    McCollum, 
    505 U.S. 42
    , 48 (1992) (emphasis added) (quoting Powers v.
    Ohio, 
    499 U.S. 400
    , 406 (1991)). As can be seen from the Supreme Court’s
    application of Batson, much more is involved than a concern about Equal
    Protection under the Constitution. Batson not only preserves Equal
    Protection, but also Due Process, and the Sixth Amendment right to a trial
    by a fair jury.
    In Powers, the Supreme Court addressed the issue of whether Batson
    applied when a white defendant sought to challenge the state’s use of
    peremptory challenges to exclude black potential 
    jurors. 499 U.S. at 403
    .
    In the first paragraph of the opinion, the Court said:
    In the many times we have confronted the issue since those
    cases [referring to three cases construing the Civil Rights Act
    of 1875], we have not questioned the premise that racial
    discrimination in the qualification or selection of jurors offends
    the dignity of persons and the integrity of the courts.
    
    Id. at 402
    (emphases added). The majority in Powers went on the say:
    “Jury service preserves the democratic element of the law, as it guards the
    rights of the parties and ensures continued acceptance of the laws by all
    of the people.” 
    Id. at 407.
    The majority concluded that “Batson recognized
    that a prosecutor’s discriminatory use of peremptory challenges harms the
    excluded jurors and the community at large.” 
    Id. at 406
    (emphases added).
    The notion that Batson was intended to avoid “offend[ing] . . . the integrity
    of the courts” and “harm” to “the community at large” was grounded upon
    the following statement in Batson:
    The petit jury has occupied a central position in our system of
    justice by safeguarding a person accused of crime against the
    arbitrary exercise of power by prosecutor or judge.
    
    Batson, 476 U.S. at 86
    (citing Duncan v. Louisiana, 
    391 U.S. 145
    , 156
    (1968)), and in a footnote, where the Court said:
    In Duncan v. Louisiana . . . the Court concluded that the right
    to trial by jury in criminal cases was such a fundamental
    feature of the American system of justice that it was protected
    against state action by the Due Process Clause of the
    Fourteenth Amendment.          The Court emphasized that a
    defendant’s right to be tried by a jury of his peers is designed
    16
    “to prevent oppression by the Government.” For a jury to
    perform its intended function as a check on official power, it
    must be a body drawn from the community. By compromising
    the representative quality of the jury, discriminatory selection
    procedures make “juries ready weapons for officials to oppress
    those accused individuals who by chance are numbered
    among unpopular or inarticulate minorities.”
    
    Id. at 156
    n.8 (internal citations omitted).
    In McCollum, the Supreme Court addressed the issue of whether the
    Constitution prohibits a criminal defendant from engaging in purposeful
    racial discrimination in the exercise of peremptory 
    challenges. 505 U.S. at 44
    . There, three white defendants were charged with aggravated assault
    and simple battery against two black victims. 
    Id. In holding
    that the
    Constitution prohibits criminal defendants from using race for a
    peremptory challenge, the Supreme Court again relied on the premise that
    Batson was designed to serve “multiple ends,” including protecting the
    “integrity of the courts.” 
    Id. at 48.
    As part of the rationale for its holding,
    the Court said:
    “[B]e it at the hands of the State or the defense,” if a court
    allows jurors to be excluded because of group bias, “[it] is [a]
    willing participant in a scheme that could only undermine the
    very foundation of our system of justice—our citizens’
    confidence in it. Just as public confidence in criminal justice
    is undermined by a conviction in a trial where racial
    discrimination has occurred in jury selection, so is public
    confidence undermined where a defendant, assisted by
    racially discriminatory peremptory strikes, obtains an
    acquittal.
    
    Id. at 49-50
    (alterations in original) (internal citation omitted).
    Finally, we disagree with the dissent’s contention, agreeing with the
    Second District and the concurring opinion in Spencer, that Hayes and
    the plurality opinion in Spencer cast the trial judge as an advocate by
    imposing a duty to ask the opponent of a peremptory strike to respond to
    the proffered explanation for the strike. Although a trial court judge must
    be impartial, “[t]his fundamental precept does not foreclose a trial judge
    from asking questions to ascertain the truth or to clarify issues.” Gerali v.
    State, 
    50 So. 3d 727
    , 729 (Fla. 5th DCA 2010). It is not uncommon for
    trial court or appellate judges to ask questions of an advocate to test the
    strength of an argument. Judges are trained in the skills of neutrality,
    17
    and we are confident that trial courts can engage in conducting a factual
    determination without becoming advocates, if questioning is needed to
    make a factual determination of pretext.
    The “multiple ends” the Batson-Melbourne procedure was designed to
    achieve should not be thwarted by the preservation requirements the
    dissent seeks to impose. It is reasonable and appropriate to impose some
    duty on the trial court to accomplish the “multiple ends.”
    Applying the Melbourne Procedure to This Case
    In the instant case, we conclude the cold record is devoid of any
    indication that the trial court considered circumstances relevant to
    whether the peremptory challenge was exercised for a discriminatory
    purpose. Unlike Spencer, it is clear that the trial court did not request a
    response by Defendant to the explanation proffered by the State for the
    peremptory challenge. Instead, the trial court cut off the State while it was
    proffering its explanation for the strike and justification for its
    genuineness, and brought the analysis to an end with the statement, “All
    right. Okay. I find that to be race-neutral reason. I’m going to uphold
    State’s use of a peremptory on [Juror No. 10].” On the record presented,
    we simply cannot assume that a genuineness inquiry was actually
    conducted in order to defer to the trial court. See Landis v. State, 
    143 So. 3d
    974, 978 (Fla. 4th DCA 2014) (“If the record lacks any indication that
    the trial court considered the totality of the circumstances relevant to
    whether a strike was exercised for a discriminatory purpose, the reviewing
    court, which is confined to the cold record before it, cannot assume that a
    genuineness inquiry was actually conducted and give deference to the trial
    court.”).
    The State asks us to infer that the trial court complied with Step 3
    because it pointed out to the trial court, in providing its race-neutral
    reason for striking Juror No. 10, that the defense had stricken two black
    females in the defense’s first round of strikes, after the State had twice
    accepted the jury panel with those jurors. The State contends that the
    record reflects the trial court was aware of and considered the
    circumstances relevant to determining if the strike was improperly
    discriminatory and implicitly found there was no pretext in the strike. We
    decline the invitation because the trial court cut off the State before it
    could point out that it had twice accepted the jury panel with those jurors
    when it exercised two peremptory challenges. We are satisfied that once
    the trial court decided the explanation was race neutral, it determined no
    further analysis was needed. In other words, the trial court prematurely
    curtailed the procedure.
    18
    Because the trial court failed to comply with the duty imposed by Step
    3 of the Melbourne procedure, we reverse the conviction and sentence, and
    remand the case for a new trial.
    Reversed and remand for further proceedings.
    WARNER, J., concurs.
    KUNTZ, J., dissents with opinion.
    KUNTZ, J., dissenting.
    After the State used a peremptory challenge on Juror No. 10, counsel
    for the Defendant stated, “Your Honor, may I -- For the record, my client
    is a member of the African American class and we want-, pursuant to
    Melbourne vs. State, the State to offer a race neutral reason for” the strike.
    The State responded, stating that Juror No. 10 “indicated he would prefer
    ‘CSI evidence.’ Additionally, the Defense has stricken two black females
    in the first round of strikes. They’ve also stricken black individuals for
    cause.” Both the Defendant and defense counsel remained quiet before
    and after the court stated, “All right. Okay. I find that to be a race-neutral
    reason. I’m going to uphold the State’s use of a peremptory on [Juror No.
    10].”
    The State’s stated reason was true. During voir dire, when asked
    whether he could convict a defendant without DNA evidence, Juror No. 10
    stated, “[I]t depends on the case.” While his answer was more nuanced
    than a simple preference for DNA evidence, the Defendant did not
    challenge the reason offered by the State.         I would conclude the
    Defendant’s silence in response to the State’s facially sound reason for
    striking Juror No. 10 constituted a waiver of the challenge. I would affirm
    the conviction and respectfully dissent.
    The ultimate issue here is whether a party must raise an issue to the
    trial court; or, alternatively, whether a party can sit silently and require
    the trial court to advocate on his or her behalf. The issue relates to the
    multi-step process for challenging the use of a peremptory challenge.
    In 1986, the United States Supreme Court examined “the evidentiary
    burden placed on a criminal defendant who claims that he has been denied
    equal protection through the State’s use of peremptory challenges to
    exclude members of his race from the petit jury.” Batson v. Kentucky, 
    476 U.S. 79
    , 82 (1986). Batson and its progeny have established a three-part
    test to determine whether a party grounded its use of a peremptory strike
    in a racially discriminatory manner. “First, the defendant must make out
    19
    a prima facie case ‘by showing that the totality of the relevant facts gives
    rise to an inference of discriminatory purpose.’” Johnson v. California, 
    545 U.S. 162
    , 168 (2005) (quoting 
    Batson, 476 U.S. at 93-94
    ). Second, if the
    defendant makes a prima facie case, “the ‘burden shifts to the State to
    explain adequately the racial exclusion’ by offering permissible race-
    neutral justifications for the strikes.” 
    Id. (quoting Batson,
    476 U.S. at 94).
    Third, “[i]f a race-neutral explanation is tendered, the trial court must then
    decide . . . whether the opponent of the strike has proved purposeful racial
    discrimination.” Purkett v. Elem, 
    514 U.S. 765
    , 767 (1995).
    Even before Batson, our state supreme court had established a
    procedure aimed at preventing racially motivated peremptory challenges.
    See, e.g., State v. Neil, 
    457 So. 2d 481
    (Fla. 1984), later clarified in State v.
    Johans, 
    613 So. 2d 1319
    (Fla. 1993) and State v. Slappy, 
    522 So. 2d 18
    (Fla. 1988). Because of difficulty applying those decisions, and because of
    Batson and Purkett, the court resolved to address the issue again in
    Melbourne v. State, 
    679 So. 2d 759
    (Fla. 1996), explaining each step of the
    three-step process:
    A party objecting to the other side’s use of a peremptory
    challenge on racial grounds must: a) make a timely objection
    on that basis, b) show that the venireperson is a member of a
    distinct racial group, and c) request that the court ask the
    striking party its reason for the strike. If these initial
    requirements are met (step 1), the court must ask the
    proponent of the strike to explain the reason for the strike.
    At this point, the burden of production shifts to the proponent
    of the strike to come forward with a race-neutral explanation
    (step 2). If the explanation is facially race-neutral and the
    court believes that, given all the circumstances surrounding
    the strike, the explanation is not a pretext, the strike will be
    sustained (step 3). The court’s focus in step 3 is not on the
    reasonableness of the explanation but rather its genuineness.
    Throughout this process, the burden of persuasion never
    leaves the opponent of the strike to prove purposeful racial
    discrimination.
    
    Id. at 764
    (footnote omitted).
    In my opinion, and based on the foregoing case law, a party challenging
    the use of the other’s peremptory strike must object during the Batson-
    Melbourne analysis at each of the three steps to preserve the objection.
    The majority disagrees.
    20
    In support of its contrary conclusion, the majority discusses our
    supreme court’s plurality opinion in Spencer v. State, 
    238 So. 3d 708
    (Fla.
    2018). In Spencer, the defendant raised a Melbourne challenge to the
    state’s use of a peremptory strike. 
    Id. at 716.
    The court asked the state
    to provide a nondiscriminatory basis for the strike to which the state
    complied. 
    Id. At that
    time, the court informed counsel for the defendant
    that “you may respond” and counsel stated, “I have no response.” 
    Id. While all
    seven justices agreed that the defendant’s conviction should
    be affirmed, no rationale garnered the support of a majority of justices.
    Three justices signed the plurality opinion authored by Justice Quince;
    two concurred in result without a written opinion; and two concurred with
    an opinion. The plurality held the defendant waived his challenge to the
    strike when he failed to respond to the court’s invitation. 
    Id. at 717
    (“Because the burden of persuasion was on defense counsel, as the
    opponent of the strike, and defense counsel did not respond, the trial court
    properly overruled the objections.”). Generally, the plurality relied on
    Hayes v. State, 
    94 So. 3d 452
    , 460–61 (Fla. 2012), stating that “[w]hile we
    were not abandoning requirements for full preservation in Hayes, Hayes
    provides that the trial court has a duty to perform the correct legal analysis
    independent of trial counsel’s duty.” 
    Spencer, 238 So. 3d at 716
    (internal
    quotation omitted).
    Justice Lawson wrote the concurring opinion, joined by Justice
    Canady, and explained that long before Hayes, the court addressed the
    issue in Floyd v. State, 
    569 So. 2d 1225
    (Fla. 1990). 
    Spencer, 238 So. 3d at 718-19
    (Lawson, J., concurring). In Floyd, the court held that “[o]nce
    the state has proffered a facially race-neutral reason, a defendant must
    place the court on notice that he or she contests the factual existence of
    the reason.” 
    Id. (quoting Floyd,
    569 So. 2d at 1229). Justice Lawson
    explained that the contrary language in Hayes, issued twenty-two years
    after Floyd, is mere dicta. 
    Id. at 720–21
    (“[T]here is no practical way for
    the opponent of the strike to meet his or her burden of persuasion without
    challenging the facially race-neutral reason as a pretext.”). In other words,
    when a defendant remains silent after step 2, he cannot meet his burden
    of persuasion in challenging step 3.
    The majority here agrees with the Spencer plurality and states that “in
    this District we contend there arguably is no conflict between Hayes and
    Floyd.” Slip Op. 8. The majority states that “Melbourne imposes some
    procedural requirements as a duty on trial courts that do not require
    objections at each step to preserve the matter for appellate review;
    however, with regards to factual accuracy of assertions by the proponent
    21
    of a peremptory strike, the standard preservation requirements apply.”
    Slip Op. 9 (emphasis removed). Thus, the majority “conclude[s] that at a
    minimum, Melbourne imposes a duty on trial courts at Step 3 to request a
    response to the proffered explanation from the opponent of a peremptory
    challenge once Step 2 has been completed.” Slip Op. 9.
    The majority cites several cases from this Court in support of its
    conclusion. See R.J. Reynolds Tobacco Co. v. Enochs, 
    226 So. 3d 872
    , 874
    (Fla. 4th DCA 2017); West v. State, 
    168 So. 3d 1282
    , 1285 (Fla. 4th DCA
    2015); Denis v. State, 
    137 So. 3d 583
    , 586 (Fla. 4th DCA 2014); Burgess
    v. State, 
    117 So. 3d 889
    , 891 (Fla. 4th DCA 2013); King v. State, 
    106 So. 3d
    966, 968 (Fla. 4th DCA 2013); Victor v. State, 
    126 So. 3d 1171
    , 1172
    (Fla. 4th DCA 2012); Cook v. State, 
    104 So. 3d 1187
    , 1190 (Fla. 4th DCA
    2012). But none of these cases involved a situation in which counsel for
    the defendant failed to challenge the race-neutral reason.
    In Denis, we explained that “after the state proffered its race-neutral
    reason for the strike—that the juror had fallen asleep during voir dire—
    defense counsel contested the factual basis of the state’s reason by
    informing the court that defense counsel did not see the juror fall asleep
    and asking the court to address whether it witnessed this 
    behavior.” 137 So. 3d at 585
    . Similarly, in West, after the state responded that its race-
    neutral reason for using the peremptory strike was that the juror was
    unemployed, counsel for the defendant 
    objected. 168 So. 3d at 1283
    . The
    defendant’s counsel stated that “[s]he said she’s a housekeeper for a
    retirement home. Her husband was the one that was unemployed—no,
    I’m sorry, her kids are unemployed, but she’s a housekeeper for a
    retirement home.” 
    Id. In King,
    another cited case, we explained that “the State sought to
    exercise peremptory strikes as to three African–American jurors. On each
    occasion, the defense objected and sought a race-neutral reason. And, on
    each occasion, the defense took issue with the reasons offered by the
    prosecutor in support of the strike.” 
    106 So. 3d
    at 968. The defendant
    also objected to the state’s race-neutral reason in Victor, where we stated
    that in response to the state’s proffered reason “[d]efense counsel noted
    that the State had not moved to strike other members on the panel who
    were also 
    arrested.” 126 So. 3d at 1173
    . The same occurred in Cook.
    After the state provided as a race neutral reason that the juror was
    “hesitant in answering” and “seemed distracted,” counsel for the defendant
    immediately objected, stating “I don’t think his being slow to answer
    questions would have anything to do with his qualification to be a juror on
    the case.” 
    Cook, 104 So. 3d at 1188
    .
    22
    On its face, Burgess presents a closer case. But there we specifically
    noted that the “defendant also pointed out the state’s pattern of
    challenging black jurors.” 
    Burgess, 117 So. 3d at 891
    . The opinion also
    states that the defendant “alleged purposeful discrimination.” 
    Id. A review
    of the transcript of the hearing at issue, available from the St. Lucie
    County Clerk of Court, shows the defendant’s objection to the state’s
    proffered race-neutral reason was specific. The defendant’s attorney
    stated that “the State is striking every African-American female so far. So
    I do think that that should be taken a look at when – when the State is
    saying that the reason for the strike is simply because these are in the
    profession of being a nurse.” Counsel for the defendant specifically
    asserted that, “the court ought to be concerned with what the true
    motivations are.”
    These cases do not support reversal here. Unlike the cases discussed
    above, the Defendant here did not object to the State’s proffered race-
    neutral reason. Instead, he remained silent. I find similarity between the
    facts here and R.J. Reynolds—another case cited by the majority. Two
    peremptory challenges were at issue there, though the colloquy about the
    first is relevant here:
    [PLAINTIFF]: He’s a white male. I don’t understand what –
    [COURT]: Everybody is a protected class under the case law.
    [PLAINTIFF]: Okay. Well, he’s a smoker, and that’s why I’m
    striking him, he’s a smoker.
    [COURT]: All right. That’s a gender-and-race-neutral reason. I
    will overrule defense objection.
    R.J. 
    Reynolds, 226 So. 3d at 873
    . I see little difference between the
    colloquy in R.J. Reynolds and the colloquy here. Yet we affirmed the
    court’s decision in R.J. Reynolds, and allowed the strike based on the
    “overall record.” 
    Id. at 874.
    All but one of the cases relied on by the majority are distinguishable;
    and, as for R.J. Reynolds, that case supports affirmance here. Yet the
    majority cites them and then imposes a new obligation on our trial judges
    to act as an advocate. Doing so does not serve the purpose of eradicating
    racial discrimination from the jury selection process. Instead, it eliminates
    the possibility that a party might accept the race-neutral reason proffered
    by the other party.
    23
    Justice Marshall’s concurring opinion in Batson offered a prophetic
    prediction: “Merely allowing defendants the opportunity to challenge the
    racially discriminatory use of peremptory challenges in individual cases
    will not end the illegitimate use of the peremptory 
    challenge.” 476 U.S. at 105
    (Marshall, J., concurring). He recognized that when a defendant
    established a prima facie case, “trial courts face the difficult burden of
    assessing prosecutors’ motives” and that burden is one trial courts are “ill-
    equipped” to handle. 
    Id. at 105-06.
    Twenty years later, Justice Breyer concluded that “history has proved
    Justice Marshall right.” Rice v. Collins, 
    546 U.S. 333
    , 342–43 (2006)
    (Breyer, J., concurring). And Justice Marshall is not alone. Justice
    O’Connor has commented that “[i]n further constitutionalizing jury
    selection procedures, the Court increases the number of cases in which
    jury selection—once a sideshow—will become part of the main event.”
    J.E.B. v. Alabama ex rel. T.B., 
    511 U.S. 127
    , 147 (1994) (O’Connor, J.,
    concurring). My colleague, Judge Klingensmith, has opined that the
    “ensuing progression of the current case law has resulted in the death of
    the peremptory challenge by a thousand cuts.” Jones v. State, 
    229 So. 3d 834
    , 837 (Fla. 4th DCA 2017) (Klingensmith, J., concurring).
    The decision of the majority is yet another cut—one that further
    separates the procedure carried out in the trial courts from the purpose
    explicitly stated in Batson and Melbourne. In this district, we will now
    presume that the defendant rejects the state’s stated nondiscriminatory
    basis for the strike. The Melbourne inquiry moves further from the goal of
    eliminating discrimination. Instead, the goal has become the process; the
    sideshow becoming part of the main event. Consistent with the concurring
    opinion of Justice Lawson in Spencer, we should require a party to raise
    an objection at every step of the Batson-Melbourne test.
    This would also track many other jurisdictions that have addressed this
    issue. The Tenth Circuit has “refuse[d] to transform [the defendant’s]
    inadequate effort to respond to the government into an error by the district
    court.” United States v. Vann, 
    776 F.3d 746
    , 755 (10th Cir. 2015)
    (“Logically construed, the best way to interpret this series of events is that
    [the defendant] failed to carry his burden of persuasion to demonstrate to
    the district court that the prosecutor’s use of a peremptory strike
    amounted to purposeful discrimination.”).
    Similarly, the Fifth Circuit has held that a party “waived his Batson
    claim, however, by failing to rebut the county’s reasons for striking Juror
    Number Eight at the time he raised his claim.” Wright v. Harris Cty., 
    536 F.3d 436
    , 438 (5th Cir. 2008); see also United States v. Arce, 
    997 F.2d 24
    1123, 1126–27 (5th Cir. 1993) (“Because this reason was not facially race-
    related and the defense did not dispute that explanation, the district court
    had no need to rule on its validity.”).
    The same is true in the Fourth Circuit, which has held “that Plaintiff
    waived his Batson challenge by failing to pursue his objection once
    Defendant offered a legitimate, nondiscriminatory explanation.” Davis v.
    Balt. Gas & Elec. Co., 
    160 F.3d 1023
    , 1028 (4th Cir. 1998). The Second
    Circuit reached the same result. United States v. Rudas, 
    905 F.2d 38
    , 41
    (2d Cir. 1990) (“Once the Government has offered reasons for its
    peremptory challenges, defense counsel must expressly indicate an
    intention to pursue the Batson claim. Here defense counsel did nothing.”).
    In the Sixth Circuit, “[i]f a defendant fails to rebut a race-neutral
    explanation at the time it was made, the district court’s ruling on the
    objection is reviewed for plain error, and the movant in this setting is in
    no position to register a procedural complaint that the district court failed
    to give a specific reason on the record for accepting the government’s race-
    neutral explanation. A movant’s failure to argue pretext may even
    constitute waiver of his initial Batson objection.” United States v. Jackson,
    
    347 F.3d 598
    , 605 (6th Cir. 2003) (internal citation omitted).
    The Eighth Circuit has also addressed the specific issue presented here.
    Hopson v. Fredericksen, 
    961 F.2d 1374
    , 1377–78 (8th Cir. 1992). That
    court held that the failure of counsel “to follow up on his Batson objection
    could have been reasonably construed by the trial judge as an agreement
    that the expressed reasons were racially neutral.” Id.; see also United
    States v. Bennett, 
    928 F.2d 1548
    , 1550 n.1 (11th Cir. 1991) (“In the instant
    case, however, the defendant’s attorney did not allege that the
    government’s explanation was pretextual at the time the government made
    its explanation for the strikes.”), superseded by statute on other grounds
    as stated in United States v. Smith, 
    127 F.3d 1388
    , 1389–90 (11th Cir.
    1997).
    A few states follow suit. See Adair v. State, 
    336 S.W.3d 680
    , 689–90
    (Tex. Crim. App. 2010) (determining a defendant failed to meet his burden
    when he did not try to rebut the race-neutral reason provided by the
    prosecutor); People v. Alvarado, 
    759 N.Y.S.2d 659
    , 660 (N.Y. App. Div.
    2003) (“With regard to the other three panelists at issue, by failing, at step
    three of the Batson application, to raise any arguments as to why the
    prosecutor’s facially race-neutral explanations for his peremptory
    challenges were pretextual, defendant failed to preserve his present
    claims.”); State v. Washington, 
    288 S.W.3d 312
    , 317 (Mo. Ct. App. 2009)
    (quoting State v. Taylor, 
    944 S.W.2d 925
    , 934 (Mo. 1997)) (“A defendant’s
    25
    failure to challenge the State’s race-neutral explanation in any way waives
    any future complaint that the State’s reasons were racially motivated, and
    leaves nothing for this Court to review.”).
    These courts concluded as they did for the same reason courts require
    preservation in any other instance. A trial court should not pursue
    arguments on behalf of a party. Instead, a party must present an
    argument to the court and, when presented, the court must determine the
    issue. There is no reason to blur this established line between the role of
    the court and those who appear before it.
    The majority notes that four of these opinions predate the Supreme
    Court’s decision in Purkett, and also states that the defendant’s response
    to the state’s race-neutral reason is unclear in Purkett. But we do know
    the defendant’s response. On remand from the Supreme Court, the Eighth
    Circuit explained that defense counsel sought to question the prospective
    jurors in response to the state’s assertion. Elem v. Purkett, 
    64 F.3d 1195
    ,
    1199 (8th Cir. 1995). In any event, the courts that issued those four
    opinions consider the opinions to be good law. See, e.g., United States v.
    Sanders, 470 F. App’x 380 (5th Cir. 2012) (“By failing to dispute the
    Government's explanations, Sanders appeared to acquiesce in them.”);
    United States v. Whitfield, 314 F. App’x 554, 556 (4th Cir. 2008) (“The
    failure to argue pretext after the challenged strike has been explained
    constitutes a waiver of the initial Batson objection.”); see also Lee v.
    Comm’r, Ala. Dep’t of Corr., 
    726 F.3d 1172
    , 1230 (11th Cir. 2013) (Tjoflat,
    J., concurring) (citing 
    Davis, 160 F.3d at 1027
    ; 
    Hopson, 961 F.2d at 1377
    ;
    
    Rudas, 905 F.2d at 41
    ) (“Three of our sister circuits have answered this
    question. If, after the State has come forth with non-discriminatory
    reasons for exercising the peremptory challenges at issue the defendant
    stands silent, the defendant waives his Batson objection; he may not
    resurrect it on appeal.”).
    Here, the Defendant asked that the State “offer a race-neutral reason
    for” the strike. In response, the State came forward with a neutral
    explanation for striking the juror. The Defendant did not challenge that
    reason. “[W]hen the state asserts a fact as existing in the record, the trial
    court cannot be faulted for assuming it is so when defense counsel is silent
    and the assertion remains unchallenged. Once the state has proffered a
    facially race-neutral reason, a defendant must place the court on notice
    that he or she contests the factual existence of the reason.” 
    Floyd, 569 So. 2d at 1229
    . That is what occurred here, and Floyd should control our
    disposition.
    I would affirm the Defendant’s conviction.
    26
    *        *        *
    Not final until disposition of timely filed motion for rehearing.
    27