EDDIE HOWARD RICHARDSON

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2023-0411 LT Case No. 16-2020-CF-009681-AXXX _____________________________

EDDIE HOWARD RICHARDSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Kevin Anthony Blazs, Judge.

Matthew J. Metz, Public Defender, and Victoria Rose Cordero, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Christina Piotrowski, Assistant Attorney General, Tallahassee, for Appellee.

August 30, 2024

EDWARDS, C.J.

Following a jury trial, Eddie Howard Richardson was found guilty of attempted manslaughter, aggravated assault, possession of a firearm by a convicted felon, and failure of a defendant on bail to appear for court. He was adjudicated guilty and sentenced to prison. On appeal, he argues that the trial court erred in denying

Melbourne dealt with how to balance a party’s right to freely utilize peremptory strikes against the need to eliminate real or perceived racial discrimination in jury selection. Lafayette v. Moody, 316 So. 3d 708, 714 (Fla. 4th DCA 2021). In Melbourne, the supreme court created the following three-step process to serve as a guideline for handling race-based objections to the use of peremptory challenges:

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. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

At this point, the burden of production shifts to the proponent of the strike to come forward with a raceneutral explanation (step²). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step³).

Melbourne, 679 So. 2d at 764 (footnotes omitted).

The quoted language regarding steps² and³ led to confusion about the role of the court and counsel. Some believed that the trial court was required without further request from the objecting

1 We also affirm the trial court’s order denying Appellant’s motion for new trial without need for discussion, other than to say there is no merit to his argument.

In Johnson, the supreme court noted that placing this burden on the objecting party was consistent with the general rules of preserving issues for appellate review which require that the issues must have been first raised and ruled on in the trial court, and that the specific arguments made on appeal are the same specific arguments that were presented to the trial court. Id. at 713–14.2 The supreme court went on to state that requiring the objecting party to do so “comports with the two legal principles underlying Melbourne—that peremptory strikes are presumed to be nondiscriminatory and that the party opposing the strike bears the burden of persuasion throughout the process.” Id. (citing Melbourne, 679 So. 2d at 764).

The Melbourne challenge which Appellant argues here focuses on the State’s use of peremptory challenges which it exercised to

2 Making the specific argument relied upon on appeal for the first time after the jury has been selected and sworn is untimely and fails to preserve the issue for review. State v. Pacchiana, 289 So. 3d 857, 862 (Fla. 2020).

The supreme court in Johnson made it clear that after the proponent of the strike has offered a facially race-neutral reason, the objecting party “must place the court on notice that he or she contests the genuineness of the reason.” Id. at 716 (internal quotation marks omitted). Here, Appellant did question whether the reasons given were race-neutral; however, he failed to challenge the genuineness of the reasons, nor did he request the court to determine the genuineness. That is more than just some arcane, technical appellate practice requirement, because “[t]he court’s focus in step³ is not the reasonableness of the explanation, but rather its genuineness.” Melbourne, 679 So. 2d at 764. “[T]he trial court’s decision [as to genuineness] turns primarily on an assessment of credibility.” Id. That calls for a distinct, sometimes difficult, judicial analysis regarding whether the proponent of the strike is being honest with the court. If the objecting party does not challenge the genuineness of the proponent’s reason, it cannot be said to have carried its burden of proving purposeful racial discrimination or to have overcome the presumption that the peremptory strikes were exercised in a nondiscriminatory fashion. Appellant failed to preserve the Melbourne challenges for appellate review.

AFFIRMED.

MAKAR and PRATT, JJ., concur.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________