Movita Sanchez v. Geico Indemnity Company ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1338
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MOVITA SANCHEZ,
Appellant,
v.
GEICO INDEMNITY COMPANY,
Appellee.
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On appeal from the Circuit Court for Walton County.
Jeffrey E. Lewis, Judge.
July 22, 2019
JAY, J.
We have for review the trial court’s order granting GEICO
Indemnity Company’s motion for new trial. Relying on Matarranz
v. State, 133 So. 3d 473 (Fla. 2013), and Singer v. State, 109 So. 2d
7 (Fla. 1959), the trial court concluded it applied the incorrect
standard in denying GEICO’s motion to remove a juror for cause.
For the reasons that follow, we affirm.
I.
Movita Sanchez sued GEICO for damages caused by a motor
vehicle accident that occurred on November 19, 2012. The issues
of negligence and causation were settled between the parties, but
a jury trial was held to determine the amount of damages.
At the stage of jury selection, it was revealed that the venire
contained two prospective jurors—numbers 13 and 17—each of
whom bore the surname of “Johnson.” During voir dire, counsel for
plaintiff Sanchez, Mr. Wesley, asked the members of the venire if
any of them had brought a lawsuit against their own insurance
company. The following exchange took place between Mr. Wesley
and juror 13:
MR. WESLEY: Anyone else ever had to bring a
lawsuit against their own insurance company?
Mr. Johnson?
[JUROR 13]: Yes.
MR. WESLEY: Tell me about that, sir.
[JUROR 13]: This was in the 80s. I don’t remember
much of it. I was rear ended. I filed a claim.
MR. WESLEY: Okay. Did you bring a claim against
your insurance company, or did you bring [a] claim
against the person who rear ended you, or do you
remember?
[JUROR 13]: My insurance company.
MR. WESLEY: Okay. Under an uninsured motorist
coverage?
[JUROR 13]: The driver was insured.
MR. WESLEY: Regardless of who the claim may
have been against, were you satisfied with that process?
[JUROR 13]: Um . . .
MR. WESLEY: Pregnant pause. It sounds like you
may not have been – exactly happy with the process or
totally satisfied with the result. Is that fair?
[JUROR 13]: Well I’m still suffering from the injuries
so –
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MR. WESLEY: You still have injuries or symptoms
that were, are related to that accident?
[JUROR 13]: Right.
MR. WESLEY: Do you still receive treatment?
[JUROR 13]: No.
MR. WESLEY: Just something you deal with?
[JUROR 13]: Yes.
MR. WESLEY: Along the same lines of the question
I asked – do you believe like you were made whole or that
you received everything that you were owed as a result of
that accident?
[JUROR 13]: No.
MR. WESLEY: No? Thank you, Mr. Johnson.
Later on, juror 13 responded to Mr. Wesley’s additional
questions as follows:
MR. WESLEY: Anybody else in the panel – anybody
else have concerns about starting everybody off even?
Does anybody feel like they are not able to do [sic]? That
they are already leaning one way or the other – Mr.
Johnson?
[JUROR 13]: I am leaning towards the plaintiff.
MR. WESLEY: Okay. What gives you that lean?
[JUROR 13]: I have a fiancée that is involved in a
personal injury case at this time with Geico.
MR. WESLEY: Okay. Is that a case where Geico is
the uninsured motorist carrier, meaning her insurance
company or is that the other driver?
[JUROR 13]: It is her insurance company.
3
MR. WESLEY: Your fiancée is in a case with Geico
currently?
[JUROR 13]: Yes.
MR. WESLEY: Does something about that case
cause you not to be fair and impartial here?
[JUROR 13]: That’s correct.
MR. WESLEY: Again, not having heard any
evidence so far, do you believe going into the case,
you would already be somewhat leaning on this
side as opposed to on Geico?
[JUROR 13]: Yes.
MR. WESLEY: All right. Thank you, sir. I appreciate
that.
(Emphasis added.)
The parties’ attorneys then voiced their challenges for cause.
Mr. Wesley was successful in challenging for cause juror 17—the
other Mr. Johnson—because during voir dire, and obverse to juror
13’s sentiment, juror 17 expressed a bias in favor of GEICO.
Counsel for GEICO, however, did not seek to have juror 13
removed for cause due to his expressed bias against GEICO.
Counsel next exercised their peremptory strikes. GEICO’s
attorney, Mr. Martin, utilized all of his peremptory strikes. The
trial court then listed the jurors to be empaneled: “This would be
5, 6, 7, 8, 9, 13, and 15 would be our alternate.” Both sides agreed
to the jury. The trial court did not, however, place the jury under
oath; instead, it called a recess for lunch.
Apparently, during the lunch recess, something or someone
jogged Mr. Martin’s memory that there were two Messrs. Johnson
in the venire. He recognized the potentially dire consequences to
his defense of his having conflated the two Johnsons—jurors 13
and 17—which would result in juror 13 being seated on the jury.
Accordingly, upon his return to the courtroom and as soon as the
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judge inquired if there was anything that needed to be brought up
before the jury was brought back in, Mr. Martin responded:
MR. MARTIN: Yes, Your Honor. And I preface this
by apologizing to the Court and to plaintiff’s counsel, but
it was brought to my attention over the lunch hour that I
made a mistake during the jury selection process. I got
the two jurors, Johnson, Juror Number 13 . . . and Juror
Number 17, Johnson mixed up in my head.
I should have moved to strike . . . Juror Number
13, for cause. The reason being that . . . Juror Number
13, stated that he had a lawsuit against his own
insurance company in the 1980s. He was still suffering
from that. He was leaning towards the plaintiff. He
was not satisfied with the result of his prior claim, and
his current fiancée is currently involved in a personal
injury lawsuit against Geico.
The Juror Number 17 . . . was struck for cause. And
I conflated the two of them in my mind and didn’t
think to move for cause for [Juror Number 13]. He is
currently seated at Juror Number 6 in our panel. For that
reason, I’m compelled, I believe, to move to strike
Juror Number 13 . . . for cause and proceed with Juror
Number 15 . . . who’s currently the alternate, as the sixth
juror on the panel.
And again, I apologize for my error, but I – I feel like
I have to make that motion at this point.
(Emphasis added.)
Mr. Wesley objected to Mr. Martin’s challenge for cause,
claiming that juror 13’s answers did not constitute sufficient bias
to justify the challenge. He also claimed he would have used his
peremptory strikes differently had juror 13 been removed for
cause.
Mr. Martin countered by pointing out that Mr. Wesley had
used his last peremptory strike before Mr. Martin had exhausted
his own, and he (Mr. Martin) could have “back struck Juror
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Number 13 . . . with [a] peremptory.” Mr. Martin explained that
because Mr. Wesley’s peremptory strikes had been exhausted, “Mr.
Wesley would not have been able to make any additional changes
to the panel” if Mr. Martin had back struck juror 13. He therefore
urged that the only harm presented was the risk of proceeding with
no alternate juror. Mr. Martin then repeated his request that juror
13 be removed from the jury for cause and the alternate juror be
seated as a regular juror on the panel.
Acknowledging that his own notes of juror 13’s answers
indicated “some potential bias” on the juror’s part, the trial judge
determined to question him on his ability to be fair. The judge
noted for the record that the defense did not possess anymore
peremptory strikes, and, in doing so, he made his position clear:
“I’m not going to back strike [juror 13] unless it’s clear that
he should be stricken for cause.”
Accordingly, juror 13 was called into the courtroom, and the
trial court conducted an additional inquiry into the circumstances
of the juror’s fiancée’s involvement with GEICO. Juror 13
reiterated that his fiancée had filed a claim with GEICO following
an automobile accident in which she was not at fault. The driver
who caused the accident was also insured by GEICO. The court
then conducted the following colloquy:
THE COURT: . . . And do you believe that – based on
that, that have [sic] any bearing on your ability to be fair
and impartial in this case?
[JUROR 13]: Well, it’s – it’s the evidence at the end
– at the end of the day. If the evidence [is] 50/50, I
probably lean towards the plaintiff.
THE COURT: Uh-huh.
[JUROR 13]: Because I – I hear my fiancée, you
know, discussing her case with me like every – every
other day.
....
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THE COURT: Well, like I said, the – the only
question that I had was just whether or not you can place
that aside and fairly consider the issues as relates to the
parties here and render a verdict on the evidence here
and not on the basis of what may be taking place with
regard to your fiancée.
And so that’s the question I needed to ask.
[JUROR 13]: I would like to think I could, yes.
THE COURT: Okay. You believe you could?
[JUROR 13]: But, you know, I just had to
mention that, so . . .
THE COURT: How long ago was the accident?
[JUROR 13]: Two years ago.
THE COURT: Okay. So it’s been some time.
[JUROR 13]: Yes.
THE COURT: She’s had a fair amount of – of
interaction, I guess, with . . .
[JUROR 13]: Yes. It’s ongoing presently.
THE COURT: Okay. But you – do you feel like one
side starts ahead of the other, or do you believe that both
start on even ground and you would require – one side or
the other, you would have to be persuaded equally before
you could reach a verdict and, you know, the burden is on
the plaintiff?
[JUROR 13]: My – my decision is not made going, you
know – it’s not already made, my decision. I have to hear
both sides. But if it comes to 50/50, you know, human
nature may take over.
THE COURT: Okay. 50/50, though, if – if a tie, you’re
not persuaded, would you be able to render a verdict for
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the defense if it – if they’re – if you’re not persuaded that
the plaintiff should prevail? Would you be able to do that?
[JUROR 13]: I think I could be fair. To be honest with
you, I think I could be fair in this situation.
(Emphasis added.)
Based on juror 13’s responses, the trial court denied GEICO’s
“strike for cause.” For the record, Mr. Martin voiced his objection
on the basis that juror 13 “just said two different times that he’s
leaning towards the plaintiff,” which, for Mr. Martin, did not
evince “a clear indication that [juror 13 could] be fair and
impartial,” not just because of the situation with his fiancée and
GEICO, but also in light of his personal and continuing
dissatisfaction with his old accident and insurance claim. When
the trial court pointed out that juror 13 had indicated “he would be
50/50,” Mr. Martin observed:
But the 50/50 – if it’s 50/50, the defense should
prevail, Your Honor, as you know. . . . It was not the
preponderance of the evidence. He said, if it’s 50/50, he
would be leaning towards the plaintiff. That tells us that
he’s not objective, he’s not, you know, being – things
aren’t fair. He’s saying, you know, if it’s 50/50, he’s going
to favor the plaintiff . . . .
Nevertheless, the judge stood firm by his ruling that juror 13
“indicated he [could] be fair and follow the law,” and, again, denied
the challenge for cause.
Immediately thereafter, the jury was called back into the
courtroom and was sworn.
At the outset of the second day of trial, Mr. Martin renewed
his motion to strike juror 13 for cause. His basis for asking the
court to reconsider its ruling was the Florida Supreme Court’s
decision in Matarranz, which he argued supported his position
that juror 13’s assurances of impartiality were insufficient to cure
his earlier expression of bias, pointing to juror 13’s evident
equivocation. The trial court announced it would take the matter
under advisement and review Matarranz. However, the trial was
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concluded without a ruling from the court, and the jury returned a
verdict for Movita Sanchez, awarding her damages totaling $2.5
million.
GEICO filed a motion for new trial. In the motion, GEICO
alleged it was entitled to a new trial on the basis that juror 13
should have been struck from the jury, again citing to Matarranz
to support its position that it was denied a fair trial.
II.
A.
The trial court entered a lengthy order, setting forth much of
the dialog between GEICO’s attorney, the court, and juror 13, as
quoted above. Then, after a well-reasoned analysis of the
applicable law, the trial court concluded that a new trial should be
granted. We fully approve the trial court’s analysis, which captures
the relevant inquiry, and which we quote below:
The first issue raised regarding juror bias goes to the
heart of the jury process. In Singer v. State, 109 So. 2d 7
(Fla. 1959)[,] the Florida Supreme Court articulated the
applicable rule to evaluate whether a trial court’s denial
of a challenge for cause constitutes reversible error:
[I]f there is any basis for any reasonable doubt
as to any juror’s possessing that state of mind
which will enable him to render an impartial
verdict based solely on the evidence submitted
and the law announced at the trial, he should be
excused on a motion of a party, or by the court
on its own motion. (Emphasis added). Singer,
109 So. 2d at 23-24.
In Matarranz v. State, 133 So. 3d 473 (Fla. 2013)[,]
the Florida Supreme Court also stated,
“if error is to be committed, let it be in favor of
the absolute impartiality and purity of the
jurors[”]—which is interpreted to mean that the
mind of the proposed juror should not contain
9
any element of prejudice for or against either
party in a cause to be tried before him.”
Matarranz at 484; citations omitted.
[In Matarranz,] [t]he Florida Supreme Court cited its
opinion in Johnson v. Reynolds, 97 Fla. 591, 121 So. 793,
796 (1929), regarding attempts to rehabilitate a
prospective juror who expresses some feeling of partiality
during voi[r] dire, but who through skillful examination
may subsequently profess his or her ability to put that
bias aside. Specifically, the Court noted in Reynolds, the
prospective juror initially expressed bias, but later
conceded that he would be able to decide the case in
accordance with the evidence presented. In Reynolds, the
Florida Supreme Court held that this concession provided
insufficient support to justify the court’s conclusion that
the juror was competent to serve. Specifically, the Court
stated,
we find it difficult, if not impossible, to
understand the reasoning which leads to the
conclusion that a person stands free of bias or
prejudice who having voluntarily and
emphatically asserted its existence in his mind,
in the next moment under skillful questioning
declares his freedom from its influence. By what
sort of principle is it to be determined that the
last statement of the man is better and more
worthy of belief than the former? Matarranz at
485; quoting Reynolds.
In the instant case during voi[r] dire questioning by
Plaintiff’s counsel, Juror 13 affirmatively expressed a
bias against Defendant which was not a mere
philosophical feeling by Juror 13, but rather was one
which was grounded in a matter then pending between
Juror 13’s fiancée and Defendant, Geico Indemnity
Company. Having expressed his leaning toward
Plaintiff’s position, Juror 13 subsequently offered that he
thought he could be fair. However, the juror also
10
expressed if it was 50/50, that he would lean to the
Plaintiff’s position.
At the outset, the court accepts the explanation of
Defense counsel that his failure to request that Juror 13
be stricken for cause during voi[r] dire was made through
mistake and inadvertence, and was not intentional so as
to gain advantage. The record shows that there were two
jurors with the same last name sitting on the same row.
Both, among several others in the venire, expressed some
feelings of bias either for or against Defendant, GEICO.
One of those jurors expressed a bias in favor of
Defendant (Juror 17) and that juror was removed for
cause. The juror in question here (Juror 13) has the same
last name [as] Juror 17 and expressed bias against
Defendant.
Through mistake and inadvertence, defense failed to
recognize the error and did not ask for a strike for cause
until after the lunch recess. Jury selection had concluded
before lunch and the venire released, but the jury had not
been sworn. Defense counsel timely brought the issue to
the court’s attention before the jury was sworn. Based
upon the initial response to questioning by Plaintiff’s
attorney and Juror 13’s initial expression of bias based
upon actual experience, the fact that there were two
individuals on the same row with the same last name, one
with favorable feelings to Defendant (cause granted) and
one expressing unfavorable feelings toward Defendant
who was not removed for cause, the[re] was the
opportunity for confusion present.
The record demonstrates that Juror 13 did make his
feeling of partiality against Defendant known during
Plaintiff’s voi[r] dire. After some inquiry, Plaintiff’s
counsel moved on to question other prospective jurors and
asked no further questions to rehabilitate Juror 13 from
his stated feelings. After Defendant’s counsel brought
this issue to the court’s attention, the court inquired
further of Juror 13 prior to swearing the jury. The
answers by Juror 13 failed to affirmatively dispel the
11
juror’s earlier responses. Juror 13 indicated he “thought”
and “hoped” he could be fair leaving a reasonable doubt
in his ability to do so. Accordingly, the court finds that it
failed to apply the correct standard from Singer as
affirmed in Matarranz. Therefore, this court finds that
Defendant’s Motion for [N]ew [T]rial should be granted. .
..
(Emphasis in original.)
We concur with the trial court’s conclusion that juror 13’s
answers to the trial court’s inquiries did nothing to rehabilitate
him. He virtually pronounced his verdict in favor of Sanchez were
he to ultimately find the evidence for both sides weighed evenly in
the balance. Undoubtedly, his “emotions” and “passions” against
GEICO would have informed his decision. Matarranz, 133 So. 3d
at 484. As we expressed the overarching principle in City of Live
Oak v. Townsend, 567 So. 2d 926 (Fla. 1st DCA 1990):
The sine qua non of our system of trial by jury is that
juries should be comprised of fair and impartial members
who stand indifferent to the outcome of the proceeding. A
prospective juror should be excused for cause if there is a
reasonable doubt as to whether he or she will be able to
render an impartial verdict based solely on the evidence
and the law.
Id. at 928 (citing cases). Here, there was considerably more than a
“reasonable doubt” as to juror 13’s impartiality. As was true in
Townsend, here, too, “[s]uch doubt was manifest and harmful” to
GEICO. Id.
B.
Were this the only issue before us in this appeal, we would not
hesitate to affirm the trial court’s decision to grant a new trial. See
Bulkmatic Transp. Co. v. Taylor, 860 So. 2d 436, 444 (Fla. 1st DCA
2003) (observing that “[g]enerally, the granting of a new trial is
within the sound discretion of the trial court, which is reversible
only upon a showing of an abuse of discretion”). Ordinarily, “[t]he
question of the competency of a challenged juror is ‘one of mixed
law and fact to be determined by the trial judge in his [or her]
12
discretion [and that] decision will not be disturbed unless the error
is manifest.’” Matarranz, 133 So. 3d at 484 (quoting Singer, 109
So. 2d at 22); see also Carratelli v. State, 961 So. 2d 312, 319 (Fla.
2007) (noting that appellate courts review “the trial court’s
discretionary decision for manifest error”).
But Sanchez argues that GEICO’s objection to the empaneling
of juror 13 was not preserved and, thus, could not support the trial
court’s decision to grant a new trial. Because this question is
grounded in law, we are “on the same footing as the trial court in
determining the correct law to be applied and the broad discretion
rule loses much of its force and effect.” Bulkmatic, 860 So. 2d at
444 (citing Am. Employers’ Ins. Co. v. Taylor, 476 So. 2d 281, 283
(Fla. 1st DCA 1985)).
“[T]o preserve challenges for cause to prospective jurors, the
[objecting party] must ‘object to the jurors, show that he or she has
exhausted all peremptory challenges and requested more that
were denied, and identify a specific juror that he or she would have
excused if possible.’” Matarranz, 133 So. 3d at 482 (quoting Kearse
v. State, 770 So. 2d 1119, 1128 (Fla. 2000)). The Florida Supreme
Court earlier explained in Carratelli: “‘By not renewing the
objection prior to the jury being sworn, it is presumed that the
objecting party abandoned any prior objection he or she may have
had and was satisfied with the selected jury.’” 961 So. 2d at 318
(quoting Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005)). But the
rule of preservation in these circumstances is not dogmatic; “[t]o
hold otherwise would be to embrace form and eschew substance.”
Townsend, 567 So. 2d at 928. As the supreme court pointedly
remarked in Matarranz: “Carratelli and related case law
demonstrate that it is the objection/re-objection process—not the
re-listing of specific, individual, and previously objected-to jurors—
that is the decisive element in a juror-objection-preservation
analysis.” 133 So. 3d at 482 (citing Carratelli, 961 So. 2d at 318;
Kearse, 770 So. 2d at 1128; Joiner v. State, 618 So. 2d 174, 176 (Fla.
1993)). Consequently,
[o]nce counsel has noted that he or she would strike a
specific juror for cause, and again renews that objection
before the jury is sworn, counsel has accomplished the
purpose which underlies the Carratelli logic: to provide a
13
trial court with notice that counsel believes a juror has
been retained in error, and to provide the court with
a final opportunity to redress the situation.
Id. at 483 (emphasis added). The goal of providing the trial court
with notice and an opportunity to “redress the situation” was the
central concern addressed by our decision in Bulkmatic, where we
held that counsel’s failure to request additional peremptory
challenges—“which would have given the trial court the
opportunity to either grant or deny the request”—compelled our
conclusion that the issue had not been preserved. 860 So. 2d at
446. We consider that concern to have been satisfied under the
instant circumstances.
Just moments prior to the jury’s being sworn, counsel for
GEICO clearly and succinctly presented his argument to the trial
court that juror 13 should be removed for cause. Hence, “[t]he trial
court was on notice that defense counsel was dissatisfied with the
jury panel due to counsel’s objection at the time the jury was
sworn.” Matarranz, 133 So. 3d at 484. What is more, when the trial
court specifically announced that it would not “back strike” juror
13 unless it was “clear that he should be stricken for cause,” the
court effectively removed any option from counsel of requesting an
additional peremptory strike. As a result, for purposes of
preserving the issue for appeal, in view of the trial court’s
announcement, requesting an additional peremptory strike would
have been futile. See Baily v. State, 224 So. 2d 296, 297 (Fla. 1969)
(holding that in view of the trial court’s announced intention, “[t]he
attorney was not required to pursue a completely useless course
when the judge had announced in advance that it would be
fruitless”); Smith v. State, 143 So. 3d 1194, 1196 (Fla. 1st DCA
2014) (acknowledging the general rule that “a party must renew
an objection to a peremptory strike before affirmatively accepting
the jury,” but holding that “if the jury is sworn only minutes after
the initial objection, an explicit renewal of the objection is not
necessary”); Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th
DCA 2000) (“In this case, because of the specific objection
communicated to the judge and the proximity of this objection to
the swearing of the jury, there is no question that the judge
understood and rejected Gootee’s consistently maintained position
that the judge had erred. It would have been futile for the lawyer
14
to repeat what he had just told the judge.”); Kidd v. State, 486 So.
2d 41, 41 (Fla. 2d DCA 1986) (holding that “[a]n attorney is ‘not
required to pursue a completely useless course when the judge had
announced in advance that it would be fruitless,’” where the state
contended “that the defense motion was a request to challenge the
jurors for cause, not a request to exercise the remaining
peremptory challenges,” and “the trial court had already stated
that no juror could be challenged at that point because all jurors
had already been accepted by the state and the defense”); Bell v.
State, 338 So. 2d 1328, 1329 (Fla. 2d DCA 1976) (holding that
where the trial court erroneously ruled that each party was
entitled only to six peremptory challenges, the appellants’
attorneys were “‘not required to pursue a completely useless
course,’” by requesting a seventh in order to be “heard to complain”
of the alleged error, quoting Bailey, 224 So. 2d at 297). Accordingly,
we hold that the issue before us was effectively preserved.
III.
For all these reasons, we affirm the trial court’s order granting
GEICO a new trial.
AFFIRMED.
OSTERHAUS, J., concurs, and BILBREY, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
BILBREY, J., dissenting.
Under Florida Supreme Court precedent, GEICO’s challenge
for cause to juror 13 was not preserved because counsel for GEICO
did not request an additional peremptory challenge when the
challenge for cause was denied. It was therefore error for the trial
court to grant a new trial based on an unpreserved claim of juror
15
bias. * I would therefore reverse the trial court’s order granting a
new trial and reinstate the jury verdict for Appellant Movita
Sanchez.
As the majority opinion recognizes, one of the requirements to
preserve a claim of trial court error for failure to strike a juror for
cause is for the party challenging the juror to “show that he or she
has exhausted all peremptory challenges and requested more that
were denied.” Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 2000);
see also Matarranz v. State, 133 So. 3d 473 (Fla. 2013). The
majority excuses GEICO’s trial counsel’s failure to request an
additional peremptory because the majority presumes that the
trial court would have rejected such a request. I respectfully
submit that this is speculation and precisely the reason why the
request for an additional peremptory challenge must be made for
the claim of error to be preserved.
When the trial judge was advised of GEICO’s potential issue
with juror 13, the judge stated, “I’m not going to back strike [juror
13] unless it’s clear that he should be stricken for cause.” The
majority contends that this was an unequivocal statement by the
trial judge that even if GEICO asked for more peremptory
challenges none would have been granted. But I read the trial
judge’s statement as merely reciting the obvious. At the point
when juror 13 was brought back for additional questioning
regarding potential bias, GEICO had exhausted all of its
peremptory challenges on other members of the venire. So only a
challenge for cause was appropriately before the court.
There would have been no reason for the trial court to consider
an additional peremptory challenge before deciding whether
* Since in my view the lack of preservation of the issue of juror
bias due to failure to request an additional peremptory mandates
reversal, I would not address the issue of whether the trial court
was correct to find bias as to juror 13 or whether the objection for
cause to juror 13 needed to be renewed before the jury was sworn
for trial in order to be preserved.
16
GEICO had a valid challenge for cause to juror 13. It is certainly
possible that the trial judge would have denied a request for an
additional peremptory challenge after denying the challenge for
cause to juror 13. But it is equally possible that the trial judge,
recognizing that GEICO’s claim of bias with juror 13 presented a
close issue, could have permitted an additional peremptory
challenge to eliminate any possibility of error. See Busby v. State,
894 So. 2d 88, 97 (Fla. 2004) (“A defendant cannot demonstrate
prejudice if the trial court grants the same number of additional
peremptories as cause challenges that were erroneously denied.”).
See also Lezcano v. State, 177 So. 3d 1024 (Fla. 3d DCA 2015). I
agree that attorneys are not required “to pursue a completely
useless course when the judge had announced in advance that it
would be fruitless,” Bailey v. State, 224 So. 2d 296, 297 (Fla. 1969),
but here the trial judge’s position on an additional peremptory was
not discussed or known.
While we normally review a trial judge’s decision to grant a
new trial under an abuse of discretion standard, whether an
objection to a juror is preserved is a legal issue which we review de
novo. See Bulkmatic Transport Co. v. Taylor, 860 So. 2d 436 (Fla.
2003). As in Bulkmatic Transport, this issue is not preserved
because “counsel failed to request additional peremptory
challenges, which would have given the trial court the opportunity
to either grant or deny the request.” Id. at 446. Therefore, as in
Bulkmatic Transport, it was error for the trial court to grant a new
trial on an unpreserved claim of juror bias. Since the majority
affirms the trial court’s decision granting a new trial, I respectfully
dissent.
_____________________________
Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A.,
Pensacola, and John W. Wesley of Wesley, McGrail & Wesley, Fort
Walton Beach, for Appellant.
Angela C. Flowers of Kubicki Draper, Ocala, for Appellee.
17