       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         MARK C. CAMPBELL,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-385

                            [March 28, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 502015CF004801A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

    In this appeal, we are asked to decide whether a trial court reversibly
erred by denying a challenge for cause against a potential juror, even
though that person was not ultimately seated on the jury. Under the
circumstances of this case, we hold it was error, and reverse for a new
trial.

   Appellant Mark Campbell was charged with lewd or lascivious
molestation of a child over the age of twelve, but under sixteen; showing
obscene material to a child; and lewd or lascivious exhibition in the
presence of a child. During jury selection, defense counsel asked if any
juror agreed that children do not lie about sexual abuse. One potential
juror, a social worker whose agency dealt with two high-profile pedophile
cases in another state, was specifically asked by counsel about how she
assessed the credibility of child witnesses. She explained, “I would have
to be honest in saying my experience in thirty-five years in being a social
worker, in working with kids, my experience has been that kids don’t lie in
instances of child abuse and child sexual abuse. I can only talk about my
experience.” (Emphasis added).
   The trial court attempted to rehabilitate the juror, and advised her that
jurors are not supposed to imprint their experience on jury instructions or
the law. When asked if she could follow the law, the juror stated she could.
However, defense counsel later asked all the prospective jurors to raise
their hand if they agreed that children do not lie about sexual abuse, to
which this particular juror responded that she strongly agreed that
children never lie about sexual abuse and rated the strength of her opinion
as a “nine out of ten, 9.5.”

    At the conclusion of voir dire, while arguing for cause challenges,
defense counsel moved to strike this juror because of her candid reaction
to the nature of the case and the feeling that she would potentially find
appellant guilty if he decided not to testify. The trial court denied the
challenge for cause, and explained it had successfully rehabilitated the
entire jury pool by instructing them to consider and assess the credibility
of each witness, regardless of age, in light of all the testimony and evidence
presented during trial.

   Defense counsel ultimately used a peremptory challenge on the social
worker and another juror after cause challenges against them were also
denied. Defense counsel then requested two additional peremptory
challenges to exercise against two other specifically identified jurors, in
place of the two cause challenges that were denied. This request was
rejected by the trial court, and both of the identified jurors served on the
jury panel.

    Appellant was found guilty of all three charges, sentenced to twenty-
five years in prison, and was designated a sexual offender. This appeal
followed.

   “The standard of review of a trial court’s ruling on a cause challenge is
one of abuse of discretion. . . . Abuse of discretion occurs when the record
reveals reason to doubt impartiality.” Ranglin v. State, 55 So. 3d 744, 746
(Fla. 4th DCA 2011). The failure to strike a juror for cause is not subject
to a harmless error analysis. See Bryant v. State, 765 So. 2d 68, 69 (Fla.
4th DCA 2000).

   As a general rule, denying a challenge for cause is not prejudicial if the
objectionable juror does not serve and is not replaced by an objectionable
juror. See Penn v. State, 574 So. 2d 1079, 1081 (Fla. 1991). An
objectionable juror “must be an individual who actually sat on the jury
and whom the defendant either challenged for cause or attempted to
challenge peremptorily or otherwise objected to after his peremptory

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challenges had been exhausted.” Croce v. State, 60 So. 3d 582, 585 (Fla.
4th DCA 2011) (quoting Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990)).

   In Trotter, the defendant claimed the trial court erred in failing to excuse
four prospective jurors for cause, which forced the defense to exercise four
peremptory challenges to remove them. 576 So. 2d at 692. Trotter argued
that he was entitled to a new trial because he exhausted all peremptory
challenges and his request for an additional peremptory challenge was
denied. Id. The Florida Supreme Court upheld Trotter’s convictions
because he failed to show that a biased juror was seated and served on
the deliberating panel. Id. at 692-93.

   As the Florida Supreme Court explained:

      Under Florida law, “[t]o show reversible error, a defendant
      must show that all peremptories had been exhausted and that
      an objectionable juror had to be accepted.” Pentecost v. State,
      545 So. 2d 861, 863 n.1 (Fla. 1989). By this we mean the
      following. Where a defendant seeks reversal based on a claim
      that he was wrongfully forced to exhaust his peremptory
      challenges, he initially must identify a specific juror whom he
      otherwise would have struck peremptorily. This juror must be
      an individual who actually sat on the jury and whom the
      defendant either challenged for cause or attempted to
      challenge peremptorily or otherwise objected to after his
      peremptory challenges had been exhausted. The defendant
      cannot stand by silently while an objectionable juror is seated
      and then, if the verdict is adverse, obtain a new trial.

Id. at 693 (emphasis added) (footnotes omitted). Trotter’s request for an
additional peremptory challenge was not made in connection with any
particular juror, but was a general request for a challenge to exercise in
the future. Id. at 693 n.7.

   Unlike that case, appellant has successfully met both criteria, which
entitles him to a new trial. First, we agree that the trial court erred by
denying the challenge for cause as to the social worker. As we recently
said in Rentas v. State, “[a] juror is not impartial when one side must
overcome a preconceived opinion in order to prevail.” 43 Fla. L. Weekly
D129, D130 (Fla. 4th DCA January 19, 2018) (quoting Reid v. State, 972
So. 2d 298, 300 (Fla. 4th DCA 2008)). There, prospective jurors expressed
firm beliefs about purported false confessions by defendants, especially in
cases involving child molestation, even though attempts were made to
rehabilitate them. Id. at D129. However, a trial court’s attempt to

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rehabilitate a juror does not automatically overcome that juror’s inherent
bias. See Montozzi v. State, 633 So. 2d 563, 565 (Fla. 4th DCA 1994)
(holding it was error to deny a challenge for cause where prospective juror
expressed disapproval of the kind of activity defendant was involved in
based on her experiences).

   In Montozzi, we stated that “[w]hile this is indeed an area of trial judge
discretion, nevertheless we have ordered new trials ourselves where we
were convinced of the existence of reasonable doubts.” Id. We continued:

        Few jurors would resolutely continue to admit that they have
        a bias after having a prosecutor and a trial judge cloak them
        in a duty to be fair. Some answers by prospective jurors
        should simply be deemed alone disqualifying, no matter how
        earnestly counsel and the trial judge seek to save them. In
        this case, the bell earlier rung by this juror was sounded again
        even while she was being “rehabilitated.”

Id.

    Here, the juror rang the proverbial bell twice, one coming after the
court’s attempt at rehabilitation. Although she agreed that she could put
aside her prior experiences when questioned by the trial judge, she
nonetheless doubled-down on her previous statement that children never
lie about sexual molestation after further questioning by defense counsel.
Thus, any prior concern about the juror’s ability to participate was not
dissipated after the court’s instruction. See Cason v. State, 760 So. 2d
283, 284 (Fla. 4th DCA 2000).

   Second, appellant specifically identified an objectionable juror that
would have been stricken using the additional peremptory challenge
requested when the cause challenge was improperly denied. After the
request for additional challenges was rejected, the identified objectionable
juror was seated on the jury. Therefore, the process set forth by the Florida
Supreme Court in Trotter was followed. 576 So. 2d at 693.

    We remand this case to the trial court for a new trial. Because we do
so, we find it unnecessary to address the other issues raised by appellant
in this appeal and affirm those without comment.

      Reversed and remanded.

CIKLIN and LEVINE, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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