TONY HAGERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Hagerman appeals his conviction for child sexual battery, arguing the trial court committed reversible error during jury selection by improperly denying challenges for cause and failing to grant additional peremptory strikes to remove objectionable jurors. The Fourth District reversed, holding that the trial court erred in failing to excuse a juror for cause after improper rehabilitation and that an objectionable juror actually sat on the jury.
The court held that the trial court erred in failing to excuse Sparkman for cause because her stated inability to be fair and impartial could not be rehabilitated solely through leading questions asked by the trial judge. Further, under controlling precedent, a new trial is warranted when a party is wrongfully forced to exhaust peremptory strikes and the trial court fails to grant additional strikes, provided at least one objectionable juror actually sat on the jury. Since Kompa and Rice, whom Hagerman challenged for cause, sat on the jury, reversal and remand for new trial is required.
[1] A new trial must be granted if a party is wrongfully forced to exhaust peremptory strikes and the trial court fails to grant additional strikes to remove an objectionable…
[2] A trial court errs in failing to excuse a potential juror for cause when the juror expresses doubt about their ability to be fair and impartial, and rehabilitation relies…
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Join FLexlaw to unlock all legal intelligence“Under Trotter v. State, 576 So.2d 691 (Fla.1990) and Street v. State, 592 So.2d 369 (Fla. 4th DCA), rev. denied, 599 So.2d 658 (Fla.1992), a new trial must be granted if a party was wrongfully forced to exhaust his peremptory strikes, and then the trial court failed to grant additional peremptory strikes in order to remove an objectionable juror.”
Establishes the legal standard for reversible error in jury selection when peremptory strikes are improperly exhausted.
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Join FLexlaw to unlock all legal intelligenceHagerman was charged with two counts of capital sexual battery on his twenty-month-old daughter. During jury selection, Hagerman challenged three pote…
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PER CURIAM.
Tony Hagerman appeals his conviction for child sexual battery, arguing the trial court committed reversible error during jury selection, and, therefore, he is entitled to a new trial. We agree.
Hagerman was arrested and charged with two counts of capital sexual battery on his twenty month old daughter. At trial, Hagerman objected to three potential jurors, Sparkman, Kompa, and Rice. Hag-erman attempted to remove Sparkman from the jury because she worked as a secretary in the juvenile division of the State Attorney’s office, and she knew the prosecuting attorney. The trial court denied the challenge for cause, so Hagerman used a peremptory strike to remove Spark-man.
Hagerman also attempted to remove Kompa and Rice for cause since both gave equivocal answers when asked if they could follow the law in this case. The trial court denied both challenges for cause. Since Hagerman had already used all of his peremptory strikes, he requested additional peremptory strikes. The trial court denied this request.
Under Trotter v. State, 576 So. 2d 691 (Fla.1990) and Street v. State, 592 So. 2d 369 (Fla. 4th DCA), rev. denied, 599 So. 2d 658 (Fla.1992), a new trial must be granted if a party was wrongfully forced to exhaust his peremptory strikes, and then the trial court failed to grant additional peremptory strikes in order to remove an objectionable juror. In addition, the objectionable juror must be one who actually sat on the jury after an unsuccessful challenge for cause. Thus, a new trial may be granted in the case sub judice if the trial court erred in failing to remove Sparkman for cause.
Sparkman not only worked in the State Attorney’s office and knew the prosecuting attorney, she stated during voir dire that she did not believe that she could be fair and impartial. The trial court rehabilitated Sparkman by asking leading questions. The Third District held in Price v. State, 538 So. 2d 486 (Fla. 3d DCA 1989) that where a potential juror is asked leading questions by the trial judge, the answers to those leading questions should not be the sole factor in rehabilitating that potential juror. In the instant case, the sole rehabilitation of Sparkman was from leading questions from the trial judge. We hold the trial court erred in not excusing Sparkman for cause.
Under Trotter and Street, therefore, a new trial is warranted in this case provided Hagerman is able to show at least one objectionable juror was on the jury panel. Hagerman objected to Kompa and Rice, both of whom sat on the jury panel. Since a “denial or impairment of the right [to peremptory challenges] is reversible error without a showing of prejudice,” Street, 592 So. 2d at 372 (quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965)), we reverse Hagerman’s conviction, and remand for a new trial.
REVERSED AND REMANDED.
ANSTEAD, GUNTHER and WARNER, JJ., concur.
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Williams v. State, 638 So. 2d 976 (Fla. 4th DCA 1994)…mbimbo v. State, 555 So. 2d 954 (Fla. 4th DCA 1990). It was only after the court asked a series of questions, which included leading questions, that this juror asserted his belief that he hoped he could be fair and impartial. See Hagerman v. State, 613 So. 2d 552 (Fla. 4th DCA 1993). A “juror who is being asked leading questions [by the court] is more likely to ‘please’ the judge and give the rather obvious answers indicated by the leading questions_” Price v. State, 538 So. 2d 486, 489 (Fla. 3d DCA 1989); H…
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Davis v. State, 656 So. 2d 560 (Fla. 4th DCA 1995)…. 2d 62 (Fla.1993); Trotter v. State, 576 So. 2d 691 (Fla.1990); Griefer v. DiPietro, 625 So. 2d 1226 (Fla. 4th DCA 1993). The denial of a right to exercise a peremptory challenge is reversible without a showing of prejudice. See Hagerman v. State, 613 So. 2d 552, 553 (Fla. 4th DCA 1993). The focus of our inquiry is not on whether juror White was incorrectly seated, but rather, whether juror Kostick should have been excused. The failure to excuse juror Kostick for cause constituted reversible error because i…
Authorities Cited
- Swain v. Alabama, 380 U.S. 202 (U.S. 1965)
- Trotter v. State, 576 So. 2d 691 (Fla. 1990)
- Price v. State, 538 So. 2d 486 (Fla. 3d DCA 1989)
- Street v. State, 592 So. 2d 369 (Fla. 4th DCA 1992)