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 June 1, 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, Michael J. Gallo (“Gallo”), after the jury returned a verdict for Gallo on his
uninsured/underinsured motorist claim against Travelers. Travelers also contests the
separate final judgments awarding Gallo attorney’s fees under section 768.79, Florida
Statutes (2014), and Florida Rule of Civil Procedure 1.442 and taxing court costs. We
find merit in one of the four arguments raised by Travelers. Concluding that the trial court
erred in disallowing one of Travelers’ peremptory challenges, we reverse and remand for
a new trial.
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
2 explanation (step 2). 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 (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout the process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
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 Step 1 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 Step 2, 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 (Step 2) 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.
3 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
v. Case No. 5D16-3158 and 5D16-4214 MICHAEL J. GALLO AND TYLER R. BROCK,
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.
In these consolidated appeals, Travelers Home and Marine Insurance Company
(“Travelers”) challenges the final judgment entered against it and in favor of the insured, court reiterated that it did not find counsel’s explanation for the strike to be “disingenuous”
and that it would not “disparage an attorney [who] attempts to make a strike on a visibly
less than active participant in the [jury selection] process.” The trial court nevertheless
reaffirmed its ruling that Travelers’ reason for striking the juror was legally insufficient,
concluding that a venireperson appearing to have an “introverted personality” is not a
sufficient race-neutral reason for a peremptory challenge. The jury was sworn shortly
thereafter, with the individual remaining on the jury.
The following trial day, before opening statements, the court and counsel again
discussed this juror. The court first confirmed that the day before, and prior to the jury
being sworn, it never reached Step 3 of the Melbourne analysis as to whether the reason
offered by Travelers for striking this juror was genuine. The court again recognized that
Travelers had a “bona fide”1 belief that the juror was not engaged, but it found that to be
“irrelevant” to evaluating whether it was a race-neutral reason for the strike. The court
then offered that it never saw the juror “fall asleep” 2 and did not see the juror exhibit a
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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 June 1, 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, Michael J. Gallo (“Gallo”), after the jury returned a verdict for Gallo on his
uninsured/underinsured motorist claim against Travelers. Travelers also contests the
separate final judgments awarding Gallo attorney’s fees under section 768.79, Florida
Statutes (2014), and Florida Rule of Civil Procedure 1.442 and taxing court costs. We
find merit in one of the four arguments raised by Travelers. Concluding that the trial court
erred in disallowing one of Travelers’ peremptory challenges, we reverse and remand for
a new trial.
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
2 explanation (step 2). 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 (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout the process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
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 Step 1 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 Step 2, 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 (Step 2) 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.
3 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
v. Case No. 5D16-3158 and 5D16-4214 MICHAEL J. GALLO AND TYLER R. BROCK,
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.
In these consolidated appeals, Travelers Home and Marine Insurance Company
(“Travelers”) challenges the final judgment entered against it and in favor of the insured, court reiterated that it did not find counsel’s explanation for the strike to be “disingenuous”
and that it would not “disparage an attorney [who] attempts to make a strike on a visibly
less than active participant in the [jury selection] process.” The trial court nevertheless
reaffirmed its ruling that Travelers’ reason for striking the juror was legally insufficient,
concluding that a venireperson appearing to have an “introverted personality” is not a
sufficient race-neutral reason for a peremptory challenge. The jury was sworn shortly
thereafter, with the individual remaining on the jury.
The following trial day, before opening statements, the court and counsel again
discussed this juror. The court first confirmed that the day before, and prior to the jury
being sworn, it never reached Step 3 of the Melbourne analysis as to whether the reason
offered by Travelers for striking this juror was genuine. The court again recognized that
Travelers had a “bona fide”1 belief that the juror was not engaged, but it found that to be
“irrelevant” to evaluating whether it was a race-neutral reason for the strike. The court
then offered that it never saw the juror “fall asleep” 2 and did not see the juror exhibit a
“lack of attention.” Additionally, although Travelers never moved to strike the juror
because she was “introverted,” the court also concluded that Travelers’ striking of an
introverted person from a jury is neither genuine nor relevant and is a “completely deficient
race-neutral reason” for the strike.
We conclude that the trial court misapplied and conflated the Melbourne analysis
and thus erred in disallowing the strike. First, we begin with the premise and reminder
1 Black’s Law Dictionary defines “bona fide” as “1. Made in good faith; without fraud or deceit. 2. Sincere; genuine.” Bona fide, Black’s Law Dictionary (10th ed. 2014).
2 Travelers never asserted that this juror fell asleep during voir dire.
5 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 Step 2 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 Step 3
“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 Step 3 “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
6 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.