DAVID CASON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Cason appealed his conviction for attempted sexual battery and aggravated battery, challenging the trial court's denial of a cause challenge to juror Wallerstein. The Florida Fourth District Court of Appeal affirmed the conviction, holding that the trial court did not abuse its discretion in denying the challenge for cause after the judge properly instructed the juror on the defendant's right to remain silent.
The trial court did not abuse its discretion in denying the cause challenge because, after receiving proper jury instructions on the defendant's right to remain silent, Wallerstein agreed to follow the law and demonstrated her understanding. The appellate court affirmed the conviction despite a potential preservation issue regarding the failure to request additional peremptory challenges.
[1] A defendant must request an additional peremptory challenge after a challenge for cause is denied and all peremptory challenges have been exhausted to preserve the denial…
[2] A trial court does not abuse its discretion in denying a challenge for cause when a prospective juror, after being instructed on the defendant's right to remain silent an…
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Join FLexlaw to unlock all legal intelligence“at no time is a defendant required to prove his innocence”
Trial court's instruction to the jury regarding the defendant's right to remain silent and the burden of proof
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Join FLexlaw to unlock all legal intelligenceDuring jury selection, prospective juror Ms. Wallerstein stated she did not understand the defense counsel's comment about the defense potentially pre…
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PER CURIAM.
David Cason appeals from a judgment of conviction for attempted sexual battery and aggravated battery. We affirm on all three issues raised in this appeal, but address appellant’s argument -that the trial court erred in failing to strike a juror for cause.
During jury selection, a prospective juror, Ms. Wallerstein, said that she did not understand and agree with defense counsel’s comment that if the defense “decided to sit here and not do anything” during the trial, then she could not hold that against the defendant. Ms. Wallerstein also responded affirmatively when the jury panel was asked if they would like to hear testimony from the defendant. Whereupon, the trial judge read the instruction on a defendant’s right to remain silent, including an instruction that at no time is a defendant required to prove his innocence. He also admonished the jurors that they were not to infer guilt based upon the defendant’s refusal to testify and that they could not view his refusal to testify as an admission of guilt. Additionally, the court stated that “no juror should ever be concerned that a defendant did or did not take the witness stand to give testimony in a case.” When asked if she would follow these instructions, Ms. Wallerstein said that she would and further stated “now I understand.”
Later, the defense' challenged Ms. Wal-lerstein for cause because she stated she wanted to hear from the defendant. The court denied the cause challenge, pointing out that after he explained the law concerning a defendant’s right to remain silent, Ms. Wallerstein agreed to follow the law.
The state contends that appellant did not properly preserve this issue for appellate review, because after his challenge for cause was denied and-his peremptory challenges were exhausted, defense counsel did not request an additional peremptory challenge to strike Ms. Wal-lerstein. We agree that this procedure must be followed in order to raise the denial of a cause challenge on appeal. See Kearse v. State, 662 So. 2d 677 (Fla.1995); Trotter v. State, 576 So. 2d 691 (Fla.1990); Dobek v. Ans, 560 So. 2d 328 (Fla. 4th DCA 1990); Hammond v. State, 727 So. 2d 979 (Fla. 2d DCA 1999).
Whether defense counsel properly preserved the issue is questionable under the “scenario” presented in this case, wherein the trial judge led defense counsel to believe that he would not grant any additional peremptory challenges since there were no other jurors left in the courtroom and that the defense had no choice but to accept the jury. Further, the court advised counsel that it deemed his cause objection sufficiently preserved. We need not resolve the preservation issue, however, because we determine from our review of the record that the trial court did not abuse its discretion in denying the challenge for cause as to the juror, Accordingly, we affirm the judgment of conviction.
AFFIRMED.
DELL, STONE and TAYLOR, JJ., concur.
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Jenkins v. State, 824 So. 2d 977 (Fla. 4th DCA 2002)…to a juror, a defendant must exhaust his peremptory challenges, request an additional peremptory challenge from the court, and demonstrate that an objectionable juror was seated. See Trotter v. State, 576 So. 2d 691, 693 (Fla.1990); Cason v. State, 760 So. 2d 283, 284 (Fla. 4th DCA 2000). As the supreme court has explained, a trial judge’s erroneous refusal to grant a cause challenge abridges a defendant’s right to peremptory challenges by reducing the number of those challenges available him. Florida and m…
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Campbell v. State, 241 So. 3d 877 (Fla. 4th DCA 2018)
Authorities Cited
- Trotter v. State, 576 So. 2d 691 (Fla. 1990)
- Kearse v. State, 662 So. 2d 677 (Fla. 1995)
- DE LA Cruz v. State, 560 So. 2d 328 (Fla. 3d DCA 1990)
- Hammond v. State, 727 So. 2d 979 (Fla. 2d DCA 1999)