TRAVELERS HOME

v.

GALLO

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

TRAVELERS HOME AND MARINE

INSURANCE COMPANY,

Appellants,

v. Case No. 5D16-3158

and 5D16-4214

MICHAEL J. GALLO AND

TYLER R. BROCK,

Appellees.

________________________________/

Opinion filed June¹, 2018

Appeal from the Circuit Court for Brevard County, George W. Maxwell III, Judge.

Jack R. Reiter, Jordan S. Kosches, and Tiffany M. Walters, of GrayRobinson, P.A., Miami, for Appellants.

Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, and O. John Alpizar and Andrew B. Pickett, of Alpizar Law, LLC, Palm Bay, for Appellee, Michael Gallo. No Appearance for Appellee, Tyler R. Brock.

LAMBERT, J.

In these consolidated appeals, Travelers Home and Marine Insurance Company (“Travelers”) challenges the final judgment entered against it and in favor of the insured,

A peremptory challenge is one of the primary tools by which a party removes an unfavorable juror from the jury panel. Spencer v. State, 238 So. 3d 708, 711 (Fla. 2018) (citing Hayes v. State, 94 So. 3d 452, 460 (Fla. 2012)). Traditionally, peremptory challenges, which are limited in number, have been exercised “according to a party’s unfettered discretion,” id. (quoting Hayes, 94 So. 3d at 459), with the only limitation being that they not be used to purposely discriminate against members of a distinctive group by excluding them from jury service. Id. (citing Batson v. Kentucky, 476 U.S. 79, 97 (1986)). To provide some clarity and direction to trial courts when faced with the possibility that a party is exercising a peremptory challenge in a purposely discriminatory manner, the Florida Supreme Court established the following three-step process and analysis to be applied under such circumstances (e.g., alleged racial discrimination):

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 race-neutral

Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (footnotes omitted).

In the present case, following voir dire of the venire, Travelers used a peremptory challenge to strike an African-American female as a juror. Consistent with Step¹ of Melbourne, Gallo’s trial counsel timely objected, placed on the record that the venireperson is a member of a distinct racial group, and requested a race-neutral reason for the strike. At that point, in an effort to comply with Step², Travelers’ counsel explained that based upon his personal observations of the prospective juror, he was striking her because she was inattentive and did not appear engaged in the jury selection process, thus giving counsel concern that if seated as a juror, this individual would not be “focused,” “pay attention,” and “actually consider the evidence.” At that point, and without requesting a response from Gallo’s counsel, the trial court determined that Travelers’ explanation or basis for the strike was “legally insufficient.” This, however, was incorrect because much like verbal responses to questioning, a juror’s lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason (Step²) for a peremptory strike. Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003). Immediately after the trial court found the strike to be legally insufficient, Gallo’s counsel placed on the record that his observations of this juror “were completely opposite of [Travelers’] counsel.” This is not uncommon and may simply illustrate that “[a] person’s demeanor, subjective as it is, is subject to more than one interpretation.” See People v.

6 that a peremptory challenge is presumed to be exercised in a nondiscriminatory manner and that the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Melbourne, 679 So. 2d at 764. Here, the trial court never altered its earlier observation, consistent with that of Travelers’ counsel, that the juror was not particularly engaged. Under Dorsey, this satisfied Step² under Melbourne and established a presumption that Travelers’ use of its peremptory challenge on this juror was genuine. 868 So. 2d at 1199. This determination triggered the trial court’s obligation to undertake a Step³ “genuineness” analysis prior to disallowing the juror strike and swearing the jury. The court admitted that it did not do this nor did it find any reason to do so because it concluded that the race-neutral reason proffered by Travelers for the strike was “legally insufficient.” Moreover, a Step³ “genuineness” analysis under Melbourne focuses not only on the proffered reason for the strike but also on the credibility of the attorney or party proffering the reason. See Young v. State, 744 So. 2d 1077, 1082 (Fla. 4th DCA 1999) (“[I]dentifying the true nature of an attorney’s motive behind a peremptory strike turns primarily on an assessment of the attorney’s credibility.”). Here, the trial court repeatedly recognized that Travelers’ counsel’s reason and explanation for the strike was genuine. Finally, the presumption that Travelers’ peremptory challenge was genuine could have been rebutted by other relevant factors such as “the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment.” See Rodriguez v. State, 753 So. 2d 29, 40 (Fla. 2000) (citing Melbourne, 679 So. 2d at 764 n.8). However, there is no indication in our record that the trial court either expressly or

7 impliedly undertook this analysis prior to disallowing this strike or that Gallo, as the opponent of the strike, separately made this argument. Accordingly, we reverse and remand for a new trial. See Hayes, 94 So. 3d at 461 (“[T]he proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.”). Lastly, having reversed the underlying judgment in favor of Gallo, we also reverse the separate final judgments awarding him attorney’s fees and court costs. See Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) (“[A]n award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.”). REVERSED and REMANDED. PALMER and ORFINGER, JJ., concur.