GUADALUPE NOVA

v.

THE STATE OF FLORIDA

=1 I I i. ""-.1.:—.—1~ [*1] __.___r-‘_._<_|.-=~.-.-.~.-.-.—e ‘A44 t l IN Tl-IE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA '

NOT FINAL UNTIL TIME EXPIRES

.

TO FILE REHEARING MOTION

AND, IFIFILED, DISPOSED OF. -

APPELLATE DIVISION

CASE NO. 09-197 AC ,-- l'\ffl'?;a3£fi,Q *1v';,'-13,3 _§\0unz ”°"€"7# A -M'S‘¥?.HIea:-if GUADALUPE NOVA, I . Appellant,

I.

é vs. , . / (h)<-1?’;9’\‘3Q U LOWER CASE NO. l095XDK ~ THE STATE OF FLORIDA, e§I§¢° . Iv $ \ 6% . Appellee. .__ I Opinion Filed: - I I _ _ An Appeal from the County Court for Miami-Dade County, Florida, Luise Krieger-Martin, Judge. t -- _ A ' "John E. Morrison, Assistant Public “Defender, Carlos Martinez, Public Defender, ofthe Office of the Miami-Dede County Public Defender, for Appellant. ‘ Angelica D. Zayas, Assistant State Attorney, Katherine FernandezRoadie, StateAttomey, ofthe Miami-Dude County State Attorney’s Offiee, for Appellee; I . Before ROBERTO M. PINEIRO, JACQUELINE HOGAN SCOLA and DIANE WARD, JJ. WARD, A‘; '. . i I - This is an appeal from a county count finaljudgment of conviction for driving under the influence ofalcohol with an accompanying sentence of 180 days injail. On November I1, 2008, a Miami-Dade Poliee Offieer observed Appellant (“Defendant”) Guadalupe Nova’s ear stopped in the middle of a street with the lights off and engine running. The Defendant was arrested after _ V . fig-, ,\S§$ no (J E i-t

| -i i -| | .-4... '__“1 '1 l l I [*2] t i .,_...___.____~___.___ .,... _._.. t: “I It failing to perform roadside tests. The Appellee, State ofFlorida, charged Defendant with driving, under the influence in violation of section 3l6.l93(l), Florida Statutes (2008). A jury trial was held on March 24-25, 2009. The State presented testimony fiom three police ofiicers Defendant presented testimony from her boyfriend, but did not testify on her own behalf. The Defendant was convicted as charged; ' ' Defendant argues on appeal that the trial court erred in denying her challenge for cause as to Juror Suarez, and her request foran additional peremptoryohallenge which would have been used to excuse Juror Suarez. During vair dire, Juror Suarez stated that the Defendant would have to testify on her own behalf in order for her to render a verdict. The State argues that the trial court successfully rehabilitated Juror Suarez, or alternatively, any error was remedied when the Defendantwas granted an additional peremptory challenge. ' I _ ' _ The standard ofreview on a trial court's decision to deny a challenge for cause is whether . " t the court abused its discretion. See Pentecost v. State, 545 So. 2d 861, 86?.-63 (Fla.1989); Leon v. State, "396 So. 2d 203, 205 (Fla. 3d DCA 1931). Absentmanifest error, a dctennirration of whether a challengedjuror is competent will not be disturbed. See Putatn‘ v. Dagger, 589 So. 2d 231 (Fla.l99l); Miller v. State, 934 So. 2d 530, 581 (Fla. 3d DCA 2006); Hall v. Slate. 632 $0.26 208, 209 (Fla. 3d DOA 1996). There is manifest error when ajuror responds with equivocal or . . , conditional answers that thereby raise a reasonable doubt as to whether the juror possesses the requisite state ofmind necessaryto render an impartial decision.'See Salgado v. State, 829 So. 2d 342, 344 (Fla. as non 2002). Juror Suarez was the lastjuror in a 20-person venire; By the time the Court reached Juror Suarez Defendant had used all three of her peremptory challenges as well as an additional ' 2 lg} - ;. i iJ.....'.._I._.-'-_.-__ Z -a I [*3] i it Y I i. i i i challenge granted by the trial court for the prior cause challenges made by the defense and denied by the court. Simply put, the Defendant had no challenges left upon reaching Juror Suarez. . ' ' _- A During questioning by both the trial court and defense, Juror Suarez expressed concerns about a defendant not testifying, particularly in a case where the State presented testimony from three police officers. Juror Suarez’ former boyfriend was a police ofiicer. . When questioned by the defense, Juror Suarez acknowledged that in order to render a decision in the case, the defendant would have to take the witness stand and testify. The court then read, for a second time, the instruction concerning the defendant's right to remain silent. During the selection process, Defendant moved to strike Juror Suarez for cause based on her statement thatshe needed to hear the Defendanfs testimony in a case. Juror Suarez was brought back into the courtroom for iudividualquestioning on this issue. When asked by the trial court if she needed to hear from the Defendant, Juror Suarez responded that “it would be great” “it’1l be good, really good" and that she would prefer it. The trial court then again reviewed the law with Juror Suarez, and she to follow the law. Thereafter, the defense asked whether she would be conoemed about the Defendant-’s failure to testify if the State presented testimony from three police officers, since her former boyfriend was a police officer. Juror Suarez responded that she ' t would need to hear “two sides” and would “like to know fiiom their side, what happened”. The trial court again tried to explain the law to the juror, asking “And you know, if you--if they don’t say anything, are you automatically going to believe that the case has been proved beyond a reasonable doubt?” Juror Suarez made an inaudible response. The equivocal and ever-changing responses by Juror Suarez left a reasonable doubt about '| .i i [*4] her ability to be an impartial juror, in spite of the repeated attempts by the trial eourt at rehabilitation. Beeausethe impaitiality ofjurors is erltleal tothe opemtlon of thejustice system, “[e]lose eases should be resolved in favor of exeusing thejuror rather than leaving a doubt as to . I his or her impartiality."-See McKay v. am, 61 So.11: 11rs (Fla. 3d12011 2011); Price v. sm, sas So. 2d 436, 489 (Fla. 3d DCA 1929). Under these circumstances the Defendant 'suffered ptejudiee because they had no way of exetising Jui-or Suarez from the venire panel. The trial court’s failure to grant the cause challenge resulted in Juror Suarez remaining on the.jury. Accordingly, we find that Appellantls judgment of conviction for driving under the influence and her sentence of 180 days in jail is hereby REVERSED and this ease REMANDED for anew trial. (HOGAN SCOLA, J. concurs.) COPIES FURNISHED T⁰

NOT REPRESENTED BY COUNSEL.

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