Moses McCray v. State of Florida

220 So. 3d 1119, 42 Fla. L. Weekly Supp. 618, 2017 WL 2291272, 2017 Fla. LEXIS 1155
CourtSupreme Court of Florida
DecidedMay 25, 2017
DocketSC16-1235
StatusPublished
Cited by3 cases

This text of 220 So. 3d 1119 (Moses McCray v. State of Florida) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moses McCray v. State of Florida, 220 So. 3d 1119, 42 Fla. L. Weekly Supp. 618, 2017 WL 2291272, 2017 Fla. LEXIS 1155 (Fla. 2017).

Opinion

PARIENTE, J.

We have for review McCray v. State, 199 So.3d 1006 (Fla. 4th DCA 2016), in *1121 which the Fourth District Court of Appeal certified conflict with the Third District Court of Appeal’s decision in McIntosh v. State, 743 So.2d 155 (Fla. 3d DCA 1999), “to the extent the results of [McCray] ... may be perceived to conflict with McIntosh.” McCray, 199 So.3d at 1010. We accepted jurisdiction based on this certified conflict. See art. V, § 3(b)(4), Fla. Const.

The issue in this case involves the exercise of peremptory challenges in jury selection and whether a party has the right to “unstrike,” or withdraw a previously exercised peremptory challenge, when it has exhausted its peremptory challenges and the opposing party subsequently accepts the jury panel.

We agree with the Fourth District that the trial court did not abuse its discretion in denying Petitioner Moses McCray’s request to “unstrike” a juror under the circumstances presented. However, we disapprove the Fourth District’s decision to the extent that it endorses a blanket rule prohibiting the withdrawal of a peremptory challenge after a party has exhausted its peremptory challenges. As we explain, McIntosh demonstrates that the withdrawal of a peremptory challenge when a party has already exhausted its peremptory challenges could be warranted by unusual or extenuating circumstances. We emphasize, however, that even though a party may exercise an unused peremptory challenge at any time before the jury is sworn and a trial court has discretion to grant additional peremptory challenges, the party does not have a “right” to “unstrike” a juror.

FACTS

The Fourth District set forth the discussions that occurred during voir dire between the trial court, the parties, and Juror 3.9 — the juror McCray sought to remove from the jury panel after exercising his last remaining peremptory challenge on Juror 2.5:

JUROR 3.9: My name ... I live in Lake Worth. My occupation, I’m working for school district. I’m a driver. I’m married. My wife is (indiscernible). I do have three children. -They are high school. I have never been served jury before.[ 1 ]
COURT: Is that a no?
JUROR 3.9: No. I have never been in crime victim of any crime. I don’t have any friends in law enforcement. And I will follow the law explained. And yes, I will give fair trial to both sides. And no reason I cannot serve.
[[Image here]]
STATE: [Juror 3.9], how are you?
JUROR 3.9: Fine.
STATE: Good. We have several folks here that have nice accents and I can kind of tell from some individuals having served on prior jury service or their answers that there was no issue with language. But I wanted to check with you to see you have a nice accent but I want to make sure are you understanding everything that we’re saying?
JUROR 3.9: Yes.
STATE: Excellent. No language problem if you were to serve on the jury?
JUROR 3.9: No.
The defense did not ask Juror 3.9 any direct questions.
During the parties’ initial round of cause challenges, the defendant did not challenge Juror 3.9 for cause.
*1122 During the parties’ peremptory strikes, the defendant used his last peremptory strike on Juror 2.5. That strike put Juror 8.9 “in the box” as the sixth juror. The state, which had two peremptory strikes remaining, accepted the panel, including Juror 3.9.
The defendant then stated he wanted to challenge Juror 3.9 for cause because he had “a serious question about [Juror 3.9’s] ability to speak English.”
In response, the trial court stated that Juror 3.9 gave “direct and positive,” “appropriate[ ]” answers; “[h]e did not hesitate in response to any questions;” and he appeared insulted or angered when the state questioned his English. The court therefore denied the defendant’s cause challenge to Juror 3.9.
The defendant then asked for two additional preemptory strikes, after which the following discussion occurred:
COURT: And the reason is because I denied your cause challenge [to juror 3.9J?
DEFENSE: Yes, sir.
COURT: That would be denied.
[[Image here]]
DEFENSE: [Judge], can we back-strike or unstrike [Juror 2.5] then?
COURT: Unstrike?
DEFENSE: Or back-strike.
COURT: This is a first for me,
STATE: I have never heard of an unstrike.
COURT: It’s not a back-strike because [Juror 2.5 has] already been stricken.
[[Image here]]
DEFENSE: ,.. You’re right, Judge. We’ve already stricken [Juror 2.5].
COURT: I don’t know how I can un-strike a strike because then that messes up everybody else’s decisions on what you struck or so. That’s our jury ....

McCray, 199 So.3d at 1007-08.

The Fourth District held that, based on its precedent in Davis v. State, 922 So.2d 454 (Fla. 4th DCA 2006), the trial court did not abuse its discretion in- denying McCray’s motion to “unstrike” Juror 2.5, which was a request to withdraw his last peremptory challenge of Juror 2.5 after he had exhausted his peremptory challenges and the State had subsequently accepted the jury panel. McCray, 199 So.3d at 1008. As the Fourth District explained,

after the defendant used his last peremptory strike on Juror 2.5, the state accepted the panel, thereby revealing the state’s strategy to accept Juror 3.9. Allowing the defendant to reveal the state’s strategy to accept Juror 3.9,'and then allowing the defendant to “un-strike” Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.

Id.

ANALYSIS ’

We are presented with the issue of whether, after a party has exhausted its peremptory challenges and the opposing party subsequently accepts the jury panel, a party has the right to withdraw a formerly exercised peremptory challenge on one juror and use that challenge on another juror after the jury panel has been accepted by the opposing party. “Under our common law, the time and manner of challenging and swearing jurors have traditionally rested within the sound discretion of the trial court.” Tedder v. Video Elec., Inc., 491 So.2d 533, 534 (Fla. 1986). Accordingly, the standard of review of a trial court’s denial of a party’s motion to withdraw a formerly exercised peremptory strike is abuse of discretion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

James Tyrell Frederick v. State of Florida
District Court of Appeal of Florida, 2024
ERIC MONTGOMERY v. STATE OF FLORIDA
District Court of Appeal of Florida, 2022
Adam Frasch v. State of Florida
District Court of Appeal of Florida, 2019

Cite This Page — Counsel Stack

Bluebook (online)
220 So. 3d 1119, 42 Fla. L. Weekly Supp. 618, 2017 WL 2291272, 2017 Fla. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moses-mccray-v-state-of-florida-fla-2017.