State v. Johnson

295 So.3d 710

STATE of Florida, Petitioner,

v.Geovani JOHNSON, Respondent.

No. SC19-96

Supreme Court of Florida.

May 21, 2020

Ashley Moody, Attorney General, Tallahassee, Florida, Celia Terenzio, Senior Assistant Attorney General, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, Florida, for Petitioner

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, Florida, for Respondent

LAWSON, J.

In the decision on review, Johnson v. State , 268 So. 3d 729 (Fla 4th DCA 2018), the Fourth District Court of Appeal certified direct conflict with the decisions of several other district courts of appeal in Ivy v. State , 196 So. 3d 394 (Fla. 2d DCA 2016), Hanna v. State , 194 So. 3d 424 (Fla. 3d DCA 2016), and Brown v. State , 204 So. 3d 546 (Fla. 5th DCA 2016). The conflict concerns the procedure for preserving a challenge to the trial court's determination that the facially race-neutral reason proffered by the proponent of a peremptory strike was genuine under step 3 of Melbourne v. State , 679 So. 2d 759, 764 (Fla. 1996) (setting forth a three-step inquiry to review claims of discriminatory use of peremptory strikes: (1) objection; (2) race-neutral explanation; and (3) determination of genuineness). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons below, we hold that the party opposing a peremptory strike must make a specific objection to the proponent's proffered race-neutral reason for the strike, if contested, to preserve the claim that the trial court erred in concluding that the proffered reason was genuine. Accordingly, we quash the Fourth District's decision to the contrary in Johnson and approve the certified conflict cases to the extent they are consistent with this opinion.

BACKGROUND

"Under Florida law, a party's use of peremptory challenges is limited only by the rule that the challenges may not be used to exclude members of a ‘distinctive group,’ " such as race. San Martin v. State , 705 So. 2d 1337, 1343 (Fla. 1997). In Melbourne , we recognized that "peremptories are presumed to be exercised in a nondiscriminatory manner" and articulated the following three-step test for trial courts to apply in determining whether a proposed peremptory challenge is race-neutral:

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 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 this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination .

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

In the voir dire proceedings in Johnson's case, the State proposed a peremptory strike as to a prospective African-American juror. Johnson , 268 So. 3d at 731. Johnson requested a race-neutral reason for the strike, and the State proffered that the prospective juror had previously indicated that he would prefer "CSI evidence," referencing the type of evidence commonly featured on a television show titled Crime Scene Investigation. Id. at 731 & n.2. Seemingly cutting off the State mid-explanation, the trial court found the proffered reason to be race-neutral and, without objection or argument from Johnson as to why the State's proffered reason was not genuine, upheld the State's peremptory strike. Id. at 732. Johnson later renewed his objection to the State's peremptory strike but never argued that the State's proffered explanation lacked record support nor advanced any argument as to why that explanation was not genuine. Id.

On appeal to the Fourth District, Johnson claimed that the trial court did not properly conduct step 3 of the Melbourne inquiry because the record did not show that "the trial court ... reviewe[d], analyze[d], or conducte[d] any ‘judicial assessment’ of the reasons given by the State for striking [the prospective juror at issue]." Johnson , 268 So. 3d at 733 (quoting Hayes v. State , 94 So. 3d 452, 462 (Fla. 2012) ). In addition to disputing the merits of Johnson's claim, the State argued that Johnson failed to properly preserve the issue. Id. In rejecting the State's arguments, the Fourth District followed the plurality opinion in Spencer v. State , 238 So. 3d 708 (Fla. 2018), which relied on language from Hayes , 94 So. 3d 452, indicating that—even in the absence of an objection or argument by the opponent of the strike that the facially race-neutral reason given for the strike is pretextual (i.e., not genuine)—the trial court is subject to reversal for failing to make a record sufficient to demonstrate on appeal that it independently questioned the genuineness of the proffered reason for the strike before making its genuineness finding under step 3 of Melbourne . Johnson , 268 So. 3d at 736-37. Applying these decisions, the Fourth District determined that Johnson's request for a race-neutral reason during step 1 of Melbourne was all that was necessary to preserve an objection to the genuineness of the facially race-neutral reason proffered during step 2, see id. , and reversed and remanded for a new trial based on its conclusion that the trial court had failed to create a record sufficient to demonstrate compliance with the duty imposed by step 3 of Melbourne to determine the genuineness of the proffered race-neutral reason. Id. at 742-43. In so holding, the Fourth District certified direct conflict with Ivy , Hanna , and Brown . Johnson , 268 So. 3d at 743.

ANALYSIS

Generally, except in cases of fundamental error, we require parties to "preserve issues for appellate review by raising them first in the trial court." Harrell v. State , 894 So. 2d 935, 939 (Fla. 2005) ; see also Morrison v. State , 818 So. 2d 432, 446 (Fla. 2002) (concluding that a party must have made "the same argument to the trial court that it raises on appeal" to preserve the issue for appellate review); Steinhorst v. State , 412 So. 2d 332, 338 (Fla. 1982) (holding that defense counsel did not preserve an issue for appellate review because he "did not present [the same] argument to the trial court"). "[P]roper preservation requires the following three steps from a party: (1) a timely, contemporaneous objection; (2) a legal ground for the objection and; (3) ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’ " Fleitas v. State , 3 So. 3d 351, 355 (Fla. 3d DCA 2008) (quoting Harrell , 894 So. 2d at 940 ).

The same is true in the context of preservation of Melbourne claims. It is the objecting party's obligation to place the trial court on notice of the basis for the challenge and create a record supporting that objection. Dorsey v. State , 868 So. 2d 1192, 1197 (Fla. 2003) ; Rimmer v. State , 825 So. 2d 304, 320-21 (Fla. 2002). Indeed, in Floyd v. State , 569 So. 2d 1225, 1229 (Fla. 1990) (emphasis added), we held that "[i ]f the explanation is challenged by opposing counsel," the strike opponent "must place the court on notice " to preserve a claim of racial discrimination for appellate review. We stated:

It is the state's obligation [as the proponent of the strike] to advance a facially race-neutral reason that is supported in the record. If the explanation is challenged by opposing counsel , the trial court must review the record to establish record support for the reason advanced. However, when the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason .

Id. (emphasis added).

Although Floyd predates Melbourne ’s holding that, at step 3, the trial court should focus on the genuineness rather than the reasonableness of the proponent's proffered race-neutral reason for the strike, Melbourne , 679 So. 2d at 764, we have never receded from Floyd ’s preservation requirement. To the contrary, this Court has continually cited Floyd , post- Melbourne , to explain that the opponent of a peremptory strike must challenge the proffered race-neutral reason and explain the basis for the challenge to preserve a challenge to the trial court's step 3 ruling for appellate review. See, e.g. , Hoskins v. State , 965 So. 2d 1, 9 (Fla. 2007) ; Dorsey , 868 So. 2d at 1197 ; Rimmer , 825 So. 2d at 320-21 ; see also Truehill v. State , 211 So. 3d 930, 943 (Fla. 2017).

And we have done so for good reason. Not only is Floyd ’s preservation requirement consistent with the basic premise behind preservation of Melbourne claims, namely that it is the objecting party's obligation to place the trial court on notice of the basis for his or her challenge and create a record supporting that objection, see Dorsey , 868 So. 2d at 1197 ; Rimmer , 825 So. 2d at 320-21, but it also 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. Melbourne , ...