STEPHANIE AQUILA, INDIVIDUALLY AND AS PARENT, NATURAL GUARDIAN AND NEXT FRIEND OF MACKENZIE AQUILA, A MINOR CHILD, APPELLANT,
v.
BRISK TRANSPORTATION, L.P., STEVEN MELANCON, JOHN VIDOUREK, KENNETH FAHY, JOHN FAHY, AND KATHLEEN FAHY, APPELLEES

Fla. 4th DCA | 2015-07-29
No. 4D12-4498
GROSS and CONNER, JJ., concur.
170 So. 3d 924 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 2 cases

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Holding

The court held that while the trial court erred in refusing to allow backstriking during jury selection, the issue was not preserved for appeal because the plaintiff's counsel accepted the jury without identifying a specific juror they would have backstruck.


Headnotes

[1] A party may exercise an unused peremptory challenge at any time prior to the jury being sworn, even if the main panel has been accepted and alternates are being selected.

[2] To preserve an issue regarding the denial of the right to backstrike jurors, a party must not only object but also attempt to exercise a peremptory challenge on a specifi…

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Facts & Procedural History

During jury selection, a juror was dismissed, leading the defense to move for a mistrial. The court refused to allow parties to backstrike jurors, whi…

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Opinion of the Court
WARNER, J.

*925WARNER, J.

Stephanie Aquila, individually and as mother and guardian of her minor child,appeals from a jury verdict finding of no liability against any of the defendants in a suit for personal injuries in a multi-vehicle crash which paralyzed the child and severely injured the mother. She raises multiple claims of error which were not preserved for appellate review. The only properly preserved claim involved a defendant which has subsequently settled, and the issue is now moot. We write, however, to address an issue of backstriking in jury selection, because, although it was error, the plaintiffs counsel failed to preserve the issue.1

During jury selection, the parties tentatively accepted six jurors, with further selection of alternates. The court dismissed the twenty-three other potential jurors. Before the six jurors were sworn, one of them indicated that he could not serve because of interference with a prepaid vacation. The court dismissed that juror. The defense counsel then moved for mistrial because the dynamics of the jury had changed. The parties and the judge discussed several ways to remedy the problem. They centered on moving the first proposed alternate into the jury panel, but when both plaintiff and defendant wanted the right to backstrike jurors, the court adamantly refused to allow any backstriking. After a recess, appellant insisted on the right to backstrike, without naming any particular juror on the selected panel that was subject to backstriking after moving the alternate onto the jury panel. Although one of the parties had moved for a mistrial, plaintiffs counsel did not agree to a mistrial but continued to insist on the right to backstrike as jury selection continued. The court denied the backstriking and then swore in the five selected jurors, with plaintiffs counsel noting his objection to the denial of backstrik-ing.

Jury selection continued for the rest of the day. At the end, the parties selected two additional alternates, with the first alternate moving into the jury panel. The plaintiffs counsel did not request to back-strike a member of the panel that had been sworn. He accepted the jury without mentioning his prior objection to the disal-lowance of backstriking.

Although the trial court erred in refusing to allow backstriking of the panel originally selected, the issue is not preserved. In Tedder v. Video Electronics, Inc., 491 So.2d 533 (Fla.1986), the supreme court clearly held that the right to the unfettered exercise of a peremptory challenge includes the right to view the panel as a whole before the jury was sworn. “[A] trial judge may not selectively swear individual jurors prior to the opportunity of counsel to view as a whole the entire panel from which challenges are to be made.” Id. at 535. See also Lottimer v. N. Broward Hosp. Dist., 889 So.2d 165, 167 (Fla. 4th DCA 2004) (a party may exercise an unused peremptory challenge at any time prior to the jury being sworn; this is so even if the main panel has been accepted, the parties are selecting alter*926nates, and one party chooses to exercise an unused peremptory to a juror on the main panel).

But Tedder also provides how the error must be preserved. There, a trial court had sworn in four jurors and had prohibited backstriking, much like the trial court did in this case. In that case, however, counsel had not only voiced an objection but also sought to backstrike one of the sworn jurors. The supreme court found that the issue was preserved:

Respondents preserved the issue on appeal by appropriate objections at trial and by the attempted use of their last peremptory challenge on one of the sworn jurors. By attempting to back-strike and not being allowed to use their peremptory challenge to do so, respondents have shown prejudice and the point has been properly preserved for appeal.

Tedder, 491 So.2d at 534. The purpose of requiring the opponent of the prohibition of backstriking to identify a juror on the panel upon which an available peremptory challenge would have been used, had back-striking been allowed, is to alert the trial court that the party is not satisfied with the panel as it stands. This requirement is similar to the preservation requirement for the improper denial of a challenge for cause, in which the defendant must not only exhaust all of his peremptory challenges and request additional perempto-ries, but also identify a specific juror on the prospective panel on whom a peremptory challenge would have been exercised, if allowed. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990). The reason is simple: unless the trial court is advised that there is still an objectionable juror on the panel, the trial court has the right to assume that by accepting the jury, the party is satisfied with the panel members.

Here, after an additional three hours of jury selection, the plaintiffs attorney voiced no further objection to any of the jurors and accepted the jury. Therefore, the trial court, and we, can assume that he was satisfied with the panel members. Consequently, the issue was not preserved.

Affirmed.

GROSS and CONNER, JJ., concur.


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