December 5, 2019 Florida Supreme Court opinion

Jury Selection

Today the Florida Supreme Court decided State v. Ivey, which involved a certified question of great public importance from the First District Court of Appeal. The question was whether a defendant can renew a previously raised objection to a peremptory challenge, after the prospective juror has been excused and the jury has been agreed to, but before the jury has been sworn in. While the First District found that such an objection is not waived and can therefore be renewed, the Florida Supreme Court disagreed with the premise of the question, finding that in this case the defendant’s request for a standing objection was not specific enough to act as a renewal.

At Ivey’s trial on charges of possession of synthetic marijuana and methamphetamine, the State moved to peremptorily strike the only black panel member, leading the defense to request a race-neutral reason. The prosecutor explained that she had joked about the prospective juror during a break, not realizing the prospective juror was in her presence, and that the prospective juror had later given her “a look” indicative of bias against her. Despite defense counsel’s argument that no evidence corroborated the story, the trial court accepted it as a race-neutral reason and removed the prospective juror from consideration.

After voir dire, the defense expressly agreed to and accepted the make-up of the panel, even refraining from renewing its objection in response to an affirmative request from the trial court. Finally, on the morning of trial and before swearing in the jury, the trial court mentioned the excused juror and its reason for ruling and asked one last time whether there was anything left to address with regard to the jury. Defense counsel replied:

[E]verything you said is fine. What I would like to do, I’ve made a few objection [sic] in preliminary proceedings and objected to evidence and objected to different things. I would like to just make that as a continuing objection, so they don’t come back and say we failed to object in the trial.

The trial court recognized the objection, and the jury was sworn in. After his conviction, Ivey argued to the First District that the trial court erred in allowing the peremptory challenge, as the judge had not witnessed the alleged joke. Rejecting the State’s argument that the objection had not been preserved, the First District agreed with Ivey and reversed and remanded for a new trial. On the State’s motion for rehearing, which was denied, the First District certified the question whether the original objection was subject to renewal.

As noted above, the Florida Supreme Court found that defense counsel’s nonspecific objection “to different things” did not actually act as a renewal because, after the initial objection, defense counsel (1) affirmatively agreed to the jury panel and (2) declined to renew the objection when the trial court asked if there were any objections to excusing the non-selected venire members. The court found that these actions gave the trial court reason to believe the initial objection had been abandoned.

Noting that Ivey could have preserved the issue by agreeing to the panel subject to his previous objection, the Florida Supreme Court ultimately held that Ivey missed his last chance to renew the objection by failing to clearly and specifically renew it before the swearing in. Given the trial court’s express acceptance of the general renewal, the Florida Supreme Court found it particularly relevant that in context the trial court would have been left with the impression that the objection to the peremptory challenge was specifically excluded from the renewal.

In his concurrence, Justice Lawson questioned whether an objection abandoned in response to an “affirmative inquiry” from the trial court is subject to renewal at all, noting that if an “objection is affirmatively abandoned, there is nothing left to ‘renew.’”

A good lesson for us all. Objections must be specific, as should be renewals of objections. Perceived abandonment of objections should be avoided at all costs. In this case, for example, the “agreement” to the jury panel should have been expressly subject to the prior objections. Finally, if an objection is abandoned, any attempt at renewal should point out with particularity the specific objection being renewed.