DAVID OBRIEN v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DAVID O’BRIEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-1643
[July 19, 2023]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Jill K. Levy, Judge; L.T. Case No. 21012385MU10A.
Gordon Weekes, Public Defender, and Lisa S. Lawlor, Assistant Public
Defender, Fort Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
This appeal turns on one word: preservation. The defendant appeals
his conviction and sentence for driving under the influence of alcohol. He
argues the trial court erred in two ways: (1) its rulings during voir dire;
and (2) overruling defense counsel’s objection to the State’s closing
argument. The first issue was not preserved, requiring us to affirm. We
affirm the second issue because the trial court’s ruling was correct.
FACTS
The State charged the defendant with driving under the influence of
alcohol after he crashed his car into a fixed metal fence and poorly
performed a field sobriety exercise.
• “Pre-trying” the Case
The defendant first argues the trial court erred in overruling his
objection to the State “pre-trying” the case. The State responds its
questioning of the venire did not constitute “pre-trying” the case. We agree
with the State and affirm on this issue.
During voir dire, the State asked the prospective jurors if they thought
driving under the influence of alcohol was drunk driving. A few jurors
answered in the affirmative. The State commented driving under the
influence of alcohol is impairment under Florida law.
Then, for illustration, the State asked a juror whether she could still
see when she takes her glasses off. The juror responded she can see people
and objects that are close, but the further away they are, the blurrier the
image becomes. The State then said, “So, you’re not blind, you’re just
impaired.” The juror answered in the affirmative.
The State then asked the jurors about what observations they make
about people who have been drinking alcohol. The jurors mentioned
walking off balance, slurring speech, speaking at a loud volume, being
uncoordinated, and being overconfident. The State then added its own
observations: “They could have bloodshot eyes. You could smell the
alcohol.”
Defense counsel objected. “This actually [is] a misstatement of the law.
He’s talking about the effects of [drinking] alcohol as opposed to the
impairment.” The trial court overruled the objection.
The State then asked another juror to imagine he decided to call in sick
from work and go to Best Buy. But at Best Buy, the juror ran into his
boss. His boss, seeing the juror had lied to skip work, revealed he had a
thermometer on him and offered to take his temperature.
The State asked the juror: “Would you put the thermometer in your
mouth” and allow your boss to take your temperature? The juror
responded, “[i]n this case, probably not.” Defense counsel objected,
arguing the State was “pre-trying” the case. The trial court overruled the
objection. The State continued its hypothetical:
Probably not right? Because you know that you’re not . . .
going to have a temperature. And that’s the concept that call
– that’s called consciousness of guilt. You don’t want to take
the temperature because you know that you’re not going to
have one.
• Juror Challenges
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Second, the defendant challenges the trial court’s decision to strike a
juror for cause. The defendant also challenges the trial court’s decision to
deny the defendant an extra peremptory challenge to strike another juror.
o The First Juror
The defendant used a cause challenge on a juror, arguing the juror had
said she would give a law enforcement witness the benefit of the doubt.
The State: Would you give police officers a – more credibility
or would you treat them just like anybody else – at least until
you heard the testimony?
Juror: I’d give them more credibility . . . That’s the result of
my being in law enforcement for thirty years . . . .
....
The State: And during that time, any of them, you came in
contact with some law enforcement officers that weren’t so
good, didn’t you?
Juror: Absolutely.
The State: You came in contact with some law enforcement
officers that weren’t fully truthful?
Juror: Yeah . . . .
Upon hearing the juror’s responses, the trial court intervened to ensure
the juror understood her role in giving weight to a witness’s testimony.
The Court: And hold on. Let me just follow up . . . . I know
because of your career as a federal agent, you’d like to believe
a police officer that took the stand –
Juror: Um-hum (affirmative.)
The Court: – you would give that a little bit more weight
because they are a police officer? Is that correct?
Juror: I’m saying under oath, if you go up there and you – I
wouldn’t say it was like more weight. I – It’s – It’s – I would
take away the fact that they’re a police officer. And you know,
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we take our own oath to the constitution when we’re hired. So
–
The Court: Right. But when – would you wait to hear the
police officer’s testimony under oath to decide whether you
believed it or not?
Juror: Well, yeah. See if he’s credible or he’s credible or not.
The Court: Okay. Because I think [the] question was “Would
you believe what the officer said because he’s an officer?” Or
would you wait to hear what he has to say to decide whether
you believe it?
Juror: That’s tough. I’d wait to hear what they have to say.
But I definitely –
The Court: You’d like to give him
Juror: – have a lot of faith –
The Court: – benefit of the doubt.
Juror: – in law enforcement. I have a lot of faith in law
enforcement.
The Court: Okay. All right. Thank you.
The juror also revealed her husband was currently a federal agent, and
she had many close friends in law enforcement.
The trial court denied the cause challenge, stating the juror had been
rehabilitated when she said, “she would wait to hear the testimony.”
Defense counsel later used a peremptory challenge to strike the juror.
o The Second Juror
After the jury panel was selected, instead of accepting the panel,
defense counsel asked for an additional peremptory strike to use against
a second juror because of her positive experiences with law enforcement.
After asking the State’s position, which was that “one interaction with a
police officer” was insufficient reason to strike her, the trial court denied
defense counsel’s request for an additional peremptory with which to
strike her.
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o The Third Juror
The State used one of its peremptory strikes against a third juror based
on the following exchange:
The State: Okay. Does anyone else have any other story that
they’d like to share?
Juror: I get pulled over a lot for bogus reasons.
The State: Okay. So, do you – would you say that all police
officers are bad?
Juror: I don’t think that all police officers are bad.
The State: Okay. It depends on that person, right?
Juror: Yeah.
Defense counsel asked for a race-neutral reason to strike the third
juror. The State reasoned there would be “concerns that [the third juror]
would be biased against law enforcement for the fact that he’s always
getting pulled over for no reason by officers.”
Defense counsel argued this was not race neutral: an African American
who felt he was getting pulled over for bogus reasons is saying they got
pulled over because they are African American. But the State responded
the third juror rehabilitated himself by saying, “I don’t think that all police
officers are bad.” Moreover, the third juror stated he would be able to
follow the law and be fair. The trial court accepted the State’s reason as
race-neutral and struck the juror.
Defense counsel immediately thereafter accepted the panel subject to
only one prior objection, “specifically the striking of [the third juror].”
• Closing Argument
And last, the defendant challenges the trial court’s decision to overrule
his objection to the State’s alleged burden-shifting argument. During
closing arguments, the State mentioned the defendant refused to provide
a breath sample and reminded the jurors of his consciousness of guilt
story during voir dire—about the man who got caught calling in sick to
work but then refused to have his temperature taken.
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The State told the jury “the defense attorney may use the refusal as a
way to convince you that the State didn’t meet its burden.” The trial court
overruled defense counsel’s objection. The State continued, “the
defendant said no to that breath test all to keep everyone knowing how
much he had to drink that night . . . that’s called consciousness of guilt.
He certainly didn’t want to know the number of drinks he had that night.”
Defense counsel again objected to burden shifting. He also objected to
a comment made by the State on the defendant’s right to remain silent.
The trial court overruled that objection as well. The State persisted,
arguing:
[The defendant] didn’t want the officers to know that night
how much he had to drink, and he certainly didn’t want you
to know how much he had to drink that night. And why was
he suffering from consciousness of guilt that night? Because
he knew how much he had to drink[.]
The jury found the defendant guilty. The trial court adjudicated him
guilty and sentenced him to twelve months’ probation.
From his conviction and sentence, the defendant now appeals.
The defendant raises three arguments regarding voir dire. First, the
trial court erred in overruling defense counsel’s objection to the State
allegedly “pre-trying” the case. Second, the trial court improperly denied
the defendant’s cause challenge against the first juror and request for an
additional peremptory strike against the second juror. And third, the trial
court improperly found the State’s reason to strike the third juror race
neutral.
The State responds some of the defendant’s arguments were
unpreserved and refutes the defendant’s arguments on their merits. First,
the trial court did not err in overruling defense counsel’s objection to the
State pre-trying the case. Second, the trial court properly denied the
defendant’s cause challenge against the first juror and request for an
additional peremptory strike against the second juror. And third, the trial
court properly found the State’s reason to strike the third juror was race
neutral.
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ANALYSIS
We review a trial court’s rulings during voir dire for an abuse of
discretion. Deviney v. State, 322 So. 3d 563, 570 (Fla. 2021), reh’g denied,
No. SC17-2231, 2021 WL 3674480 (Fla. Aug. 19, 2021), cert. denied sub
nom, 142 S. Ct. 908 (2022).
• Pre-Trying the Case
The defendant first argues the State “pre-tried” the case when it asked
the jurors questions about impairment. To preserve a jury selection issue
for appeal, the party raising the issue must renew their objection before
the trial court swears in the jury. Berry v. State, 792 So. 2d 611, 612 (Fla.
4th DCA 2001).
Here, the record reveals that did not occur. The defendant objected
only once. He did not later renew his objection. In short, the defendant
failed to preserve the issue. See id.• Juror Challenges
o The First and Second Jurors
The defendant next argues the trial court erred in denying defense
counsel’s cause challenge to the first juror. Further, he argues the trial
court compounded the error in denying the defendant an extra peremptory
strike against the second juror. The State responds this issue is
unpreserved. We agree.
“Generally, to prevent a waiver of a juror challenge issue, the opponent
must call the court’s attention to its objection, if there was an earlier
objection, before the jury is sworn.” Arnold v. State, 755 So. 2d 696, 698
(Fla. 4th DCA 1999). “This is done either by renewing its motion or by
accepting the jury subject to the earlier objection.” Id. To preserve for
appeal a denial of a challenge to a juror for cause, it is necessary to exhaust
all remaining peremptory challenges, request additional peremptory
challenges, and identify to the trial court which juror the party would have
stricken “had the peremptory challenges not been exhausted.” Griefer v.
DiPietro, 625 So. 2d 1226, 1228 (Fla. 4th DCA 1993).
Here, the record reveals after the trial court denied the defendant’s
request for an additional peremptory strike to use against the second
juror, the defendant accepted the jury, including the second juror, without
renewing his motions or explicitly accepting the jury subject to his request
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to exercise a cause challenge on the first juror and an additional
peremptory strike on the second juror. The defendant only renewed his
objection regarding the third juror. He therefore failed to preserve his
objection to the trial court’s rulings on the first and second jurors.
o The Third Juror
The defendant next argues the trial court erred in accepting the State’s
reason for striking the third juror. “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.” Melbourne v. State, 679 So. 2d 759, 764 (Fla.
1996).
Here, the record establishes the trial court followed the three-step
Melbourne process. It heard from the State and the defendant, who
opposed the strike. The State gave a race-neutral reason. And the trial
court determined the State’s reason was not a pretext.
As the party opposing the strike, the defendant then had the burden to
prove purposeful racial discrimination. See id. The defendant was also
required to challenge the genuineness of the State’s proffered race-neutral
reason and make a specific objection to the reason. State v. Johnson, 295
So. 3d 710, 714 (Fla. 2020).
Here, the defendant did not do so. Although he initially claimed the
State’s reason was not race neutral “[g]iven the state of our society and the
over-policing of minority areas,” the State responded this was not a legal
argument. The trial court asked the State whether it was alleging the third
juror was indiscriminately pulled over because of his race. The State
answered “no.” Rather, the State was concerned the third juror would be
biased because the police repeatedly pulled him over, thereby leading the
third juror to believe that police stops were unjustified.
The defendant did not challenge the State’s proffered race-neutral
reason. The defendant did not place the trial court on notice he was
contesting the factual existence of the State’s reason. The defendant failed
to preserve the issue.
The defendant argues we must reverse because the genuineness of the
State’s proffered reason “must be questioned.” He failed, however, to make
this challenge in the trial court. Because he never objected to the
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genuineness of the State’s reasoning below, this issue is not preserved for
appellate review. See Johnson, 295 So. 3d at 714–16. We must affirm.
• Closing Argument
The defendant last argues the trial court erred in overruling his
objection to the State’s comment about the defendant’s refusal to take a
breath test. The State responds the trial court properly overruled defense
counsel’s objection because the State did not implicate the defendant’s
right to remain silent. We agree with the State.
We review trial court decisions on closing arguments for an abuse of
discretion. Robinson v. State, 211 So. 3d 59, 60 (Fla. 4th DCA 2017).
“It is well settled that due process requires the [S]tate to prove every
element of a crime beyond a reasonable doubt.” Warmington v. State, 149
So. 3d 648, 652 (Fla. 2014) (quoting Jackson v. State, 575 So. 2d 181, 188
(Fla. 1991)). “For that reason, it is error for a prosecutor to make
statements that shift the burden of proof and invite the jury to convict the
defendant for some reason other than that the State has proved its case
beyond a reasonable doubt.” Id. (quoting Gore v. State, 719 So. 2d 1197,
1200 (Fla. 1998)).
Here, the State’s closing argument focused on the evidence; specifically,
the defendant’s refusal to submit to breath testing and the reasonable
inference drawn from that evidence—his consciousness of guilt. The
record does not support the defendant’s burden-shifting argument.
The State argued the defendant’s refusal to submit to testing indicated
his consciousness of guilt. Because the State focused on his refusal to
submit to testing instead of whether he demanded testing to prove his
innocence, the argument was proper. See Morris v. State, 988 So. 2d 120,
123 (Fla. 5th DCA 2008).
Section 316.1932(1)(a)(1)(a), Florida Statutes (2021), and relevant case
law make it clear the Fifth Amendment does not apply to the refusal to
submit to testing. State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995). The
law expressly allows the State to comment on this issue even though a
criminal defendant usually has the right to remain silent.
Lastly, to the extent the defendant challenges the State’s comments
about the number of drinks he had, the State submits this was not an
improper comment on his right to remain silent, because he did not
actually remain silent. As we have noted, “where a defendant does not
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remain silent at the time of arrest, the constitutional right to remain silent
has been found not to have been exercised.” Joyner v. State, 979 So. 2d
1246, 1248 (Fla. 4th DCA 2008).
Because the State commented on facts in evidence and did not
comment on the defendant’s right to remain silent, there was no error in
the trial court’s rulings.
Affirmed.
WARNER and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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