CHARLES HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Hayes appeals his conviction for sexual battery and lewd or lascivious molestation, challenging the trial court's denial of his motion to strike the venire based on comments made by one venire member. The Florida Fifth District Court of Appeal affirms, finding no error on the merits and alternatively holding that Hayes waived the issue by failing to renew his objection before the jury was sworn.
The trial court did not err in denying the motion to strike the venire on the merits, as a single venire member's expression of opinion, without more, is ordinarily insufficient to taint the entire panel, and the other venire members stated the comments would not affect them. Additionally, Hayes waived the issue by failing to renew his objection before the jury was sworn.
[1] A venire member's expression of an opinion during voir dire, without more, is ordinarily insufficient to taint the remainder of the panel.
[2] Jury selection issues are deemed waived after acceptance of the jury unless the objection is renewed prior to the jury being sworn.
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Join FLexlaw to unlock all legal intelligence“A venire member's expression of an opinion stated during a voir dire examination, without more, is ordinarily not considered sufficient to taint the remainder of the panel.”
Establishes the legal standard that a single venire member's comments during voir dire do not automatically require striking the entire venire.
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Join FLexlaw to unlock all legal intelligenceHayes was convicted of sexual battery by a person over 18 upon a person less than 12 years of age and lewd or lascivious molestation. During voir dire…
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MONACO, J.
Charles Hayes appeals from the judgment and sentence rendered by the trial court after his conviction of sexual battery by a person over 18 upon a person less than 12 years of age in violation of section 794.011(2), Florida Statutes (2006), and lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2006). He raises as the sole issue on this appeal whether the trial court erred in denying his motion to strike the venire. We affirm on two bases.
First, we find no error on the merits with respect to the trial court’s decision not to strike the entire venire. A venire member’s expression of an opinion stated during a voir dire examination, without more, is ordinarily not considered sufficient to taint the remainder of the panel. See Johnson v. State, 903 So. 2d 888, 897 (Fla.), cert. denied, — U.S.—, 126 S.Ct. 802, 163 L.Ed.2d 632 (2005); Brower v. State, 727 So. 2d 1026, 1027 (Fla. 4th DCA), review denied, 744 So. 2d 452 (Fla.1999). With the exception of one venire person who did not sit on the jury, the remainder of the venire said that the questioned comments of the venire person would not affect their perception of Mr. Hayes.
Second, we conclude that Mr. Hayes failed to preserve this issue for review. Although Mr. Hayes did not formally accept the jury panel, he failed to renew his objection or motion to strike the panel prior to the jury being sworn in. We held in Martin v. State, 816 So. 2d 187, 188 (Fla. 5th DCA 2002), that jury selection issues are “deemed to be waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objection.” See also Joiner v. State, 618 So. 2d 174, 176 (Fla.1993).
Here, after the jury was selected the court recessed for the night. When asked on the following morning prior to the jury being sworn whether there was anything else that either the State or the defense wished to say, the defense responded, “No.” The jury was then sworn. The case law teaches that even if a litigant makes no statement affirmatively accepting a jury, the requirement remains that objections to the panel must be renewed. See Lavin v. State, 754 So. 2d 784, 786 (Fla. 3d DCA 2000); Milstein v. Mutual Sec. Life Ins. Co., 705 So. 2d 639, 641 (Fla. 3d DCA 1998). In our judgment the issue was waived when the objection was not renewed prior to the swearing of the jury.
AFFIRMED.
PALMER and ORFINGER, JJ., concur.
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Reppert v. State, 86 So. 3d 525 (Fla. 2d DCA 2012)…So. 2d 1069, 1069 (Fla. 2d DCA 1983). However, when a prospective juror simply expresses a personal opinion of the criminal justice system, that opinion, without more, is usually insufficient to taint the remainder of the venire. See Hayes v. State, 954 So. 2d 1265, 1266 (Fla. 5th DCA 2007); see also Brower v. State, 727 So. 2d 1026, 1027 (Fla. 4th DCA 1999) (noting that prospective jurors “are frequently exposed ... to innumerable comments, attitudes, and points of view” and that improper remarks made by pros…
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Johnson v. State, 141 So. 3d 698 (Fla. 1st DCA 2014)…v. State, 961 So. 2d 312 (Fla.2007), for the proposition that preservation of a challenge to a potential juror requires more than one objection, and the objecting party must renew and preserve the objection before the jury is sworn); Hayes v. State, 954 So. 2d 1265, 1266 (Fla. 5th DCA 2007) (holding that although defendant did not formally accept the jury panel, defendant failed to preserve his claim that the trial court should have granted his motion to strike the entire venire where he failed to renew his ob…
Authorities Cited
- Joiner v. State, 618 So. 2d 174 (Fla. 1993)
- Milstein v. Mut. Sec. Life Ins. Co., 705 So. 2d 639 (Fla. 3d DCA 1998)
- Johnson v. State, 903 So. 2d 888 (Fla. 2005)
- Lavin v. State, 754 So. 2d 784 (Fla. 3d DCA 2000)
- Tonnie Lee Martin v. State, 816 So. 2d 187 (Fla. 5th DCA 2002)
- Brower v. State, 727 So. 2d 1026 (Fla. 4th DCA 1999)