          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-731
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KRAIG ALEXANDER WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

                          August 16, 2018

B.L. THOMAS, C.J.

     Appellant challenges the trial court’s denial of his cause
challenge of Juror Gilbreath, who once worked as a prosecutor for
the state attorney’s office and whose husband is an investigator for
that office. We affirm.

                               Facts

     Appellant was charged by information with possession of
oxycodone, morphine, heroin, cocaine, and cannabis, and was
charged with knowingly driving while license suspended or
revoked. During voir dire before trial, prospective juror Gilbreath
stated that she had been an attorney for thirty-seven years and
that her husband worked for the state attorney’s office. In
response to questions from the State, Gilbreath stated she
currently worked as a family law attorney, was a prosecutor for
eight years in the state attorney’s office, followed by criminal
defense work for two or three years. Gilbreath also stated that her
husband is an investigator in the state attorney’s office. Gilbreath
stated that nothing about her experience as a prosecutor or her
husband’s employment would affect her ability to be fair and
impartial.

     Appellant moved to strike Gilbreath for cause, based on her
past relationship with the state attorney’s office and her husband’s
current employment with the state attorney’s office. The State
argued that Gilbreath indicated she could be fair and impartial,
and additionally argued that she had also been a criminal defense
attorney for two or three years. The trial court denied Appellant’s
motion to strike. Because Appellant had already exhausted six
peremptory strikes, Appellant requested an additional strike,
which the trial court denied, stating there was no basis.

     Before proceeding to trial, Appellant objected to the jury panel
being sworn, based on the court’s denial of the cause challenge of
Juror Gilbreath. The State again argued Gilbreath’s impartiality
and her previous criminal defense work. The trial court found
there was no reasonable doubt that Gilbreath could be fair and
impartial, adding that he had known her for thirty-seven years,
that no one challenged her unequivocal statements in voir dire
that she could be fair and impartial, and that she had been a well-
respected attorney in Jacksonville for many years.

                              Analysis
     “The standard of review of a trial court’s ruling on a cause
challenge is one of abuse of discretion.” Ranglin v. State, 55 So. 3d
744, 746 (Fla. 4th DCA 2011) (citing Singleton v. State, 783 So. 2d
970, 973 (Fla. 2001)). “The trial court has broad discretion in
determining whether to grant a challenge for cause, and the
decision will not be overturned on appeal absent manifest error.”
Kopsho v. State, 959 So. 2d 168, 170 (Fla. 2007).

     “The test for determining juror competency is whether the
juror can lay aside any bias or prejudice and render a verdict solely
on the evidence presented and the instructions on the law given by
the court.” Busby v. State, 894 So. 2d 88, 95 (Fla. 2004). “Where

                                 2
the record demonstrates a reasonable doubt about a juror’s ability
to be impartial, the trial court abused its discretion in denying the
cause challenge.” Carratelli v. State, 961 So. 2d 312, 319 (Fla.
2007).

     The Florida Supreme Court has repeatedly rejected the
argument that “a law enforcement position inherently creates a
disability to serve as a fair and impartial juror.” State v. Williams,
465 So. 2d 1229, 1230 (Fla. 1985). A law enforcement connection,
standing alone, is generally not enough to render a potential juror
partial to the State. See, e.g. Busby, 894 So. 2d at 95 (stating “[t]his
Court has consistently held that the mere fact that someone is a
correctional officer is not per se grounds for a cause challenge”); see
also Blake v. State, 110 So. 3d 534, 535 (Fla. 1st DCA 2013)
(holding it was error to strike a potential juror who was engaged
to a public defender in a different circuit); Livingston v. State, 512
So. 2d 223, 224 (Fla. 4th DCA 1987) (holding trial court did not err
“in disallowing appellant's challenge to the husband of a former
secretary in the state attorney's office, after he had run ou[t] of
peremptory challenges”).

     Reversible error has been found in failing to excuse potential
jurors for cause who had connections to law enforcement and made
equivocal statements indicating that the connection may affect
their ability to be impartial. See Williams v. State, 638 So. 2d 976,
977-978 (Fla. 1994) (holding juror who had contacts with U.S.
Attorney’s Office, stated that he had “deep feelings in this kind of
case,” and made equivocal statements that “I hope that I can” be
impartial and “I’ll be impartial because that’s my character”
should have been stricken for cause); Jefferson v. State, 489 So. 2d
211, 212 (Fla. 3d DCA 1986) (finding error in failing to excuse juror
for cause who repeatedly made equivocal remarks about whether
her husband’s career in law enforcement would affect her ability
to be impartial).

     Appellant cites cases from the Third and Fourth Districts
where jurors’ employment with the state attorney’s office was
grounds for reversal. In Bethel v. State, the Fourth District held
that a juror who was currently working as an assistant state
attorney for the same state attorney’s office that was currently
prosecuting the case should have been stricken for cause. 122

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So. 3d 944, 949 (Fla. 4th DCA 2013). Similarly, in Denson v. State,
the Fourth District found reversible error in a trial court’s failure
to strike for cause a juror who currently was an assistant state
attorney and was the supervisor of the assistant state attorney
who was trying the case. 609 So. 2d 627, 628 (Fla. 4th DCA 1992).
And in Henry v. State, the defendant challenged a potential juror
for cause who currently worked as a legal secretary for the state
attorney’s office. 586 So. 2d 1335, 1336 (Fla. 3d DCA 1991). The
potential juror gave equivocal answers to questions about her
impartiality, saying “I don’t think so” when the trial court asked if
her working in the state attorney’s office would affect her
impartiality. Id. The Third District held that the juror’s
“employment at the state attorney's office does not provide an
inherent reason to preclude her service on the jury,” but her
employment created some doubt that was not relieved by her
equivocal responses.       Id. at 1337.      The cases above are
distinguishable from the present case, however, because in each of
the above-cited cases, the juror in question was currently employed
by the state attorney’s office, and had some connection to the
attorney trying the case or was related to someone who
participated in the trial.
     Here, Juror Gilbreath began her career by working for the
state attorney’s office for eight years, but afterward moved to
criminal defense work for two to three years, and has since been
working in family law for the past twenty-six years. Gilbreath’s
husband worked as an investigator for the state attorney’s office,
but did not participate in the trial. Juror Gilbreath stated
unequivocally that her former employment and her husband’s
current employment would not affect her ability to be impartial.
Conversely, Henry held that a connection to the state attorney’s
office, on its own, was not enough to establish the lack of
impartiality of a juror; rather, the connection, coupled with
equivocal statements about impartiality, rendered a juror partial
to the State. 586 So. 2d at 1337.
    Juror Gilbreath’s employment with the state attorney’s office
nearly twenty-seven years earlier, and her husband’s employment
as an investigator with the state attorney’s office, standing on its
own, does not establish that Juror Gilbreath was partial to the
State. Williams, 465 So. 2d at 1230-31. Further, Gilbreath’s
unequivocal statements that she would not be biased by any
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connections to the state attorney’s office were sufficient to remove
any reasonable doubt as to her impartiality.

     Appellant also argues that the court abandoned its role as a
neutral arbiter by stating that he knew Juror Gilbreath and that
she had been a respected attorney for many years. Appellant cites
Jones v. State, 54 So. 3d 503 (Fla. 1st DCA 2010), in which the trial
judge suggested a line of questioning to the prosecutor. This court
noted that the judge’s actions were “ill-advised,” but found that the
actions did not constitute fundamental error. Id. at 505-06. Here,
the trial court’s comments that Juror Gilbreath was a well-
respected attorney are not as suggestive as the comments in Jones,
which this court ultimately held were not in error; thus, there was
no error here, and the trial court did not abuse its discretion in
denying Appellant’s cause challenge to Juror Gilbreath.

   We affirm without comment the trial court’s denial of
Appellant’s motion for judgment of acquittal.

    AFFIRMED.

RAY, J., concurs; WOLF, J., dissents with opinion.

                    _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
                _____________________________

WOLF, J., dissenting.

     I would reverse because appellant’s challenge for cause of
juror Gilbreath should have been granted, and the trial court
impermissibly utilized its own personal knowledge of the
prospective juror to determine lack of bias. The prospective juror’s
husband is an investigator in the office that is prosecuting this
criminal case. Due to the special relationship between spouses and
the husband’s conflicting employment related to this particular
case, an appearance of unfairness and partiality was created. This
appearance of unfairness was further bolstered by the judge

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effectively becoming a witness in support of the juror’s ability to be
impartial. A judge’s personal knowledge concerning a prospective
juror does not overcome the appearance of unfairness in this
proceeding and cannot be utilized in any manner in the judge’s
decision to deny a challenge for cause.

    During the voir dire, appellant attempted to excuse juror
Gilbreath for cause. The trial court denied the motion. The defense,
which had used all its peremptory challenges, requested an
additional one. The court denied this request.

    On the day of trial, appellant objected to the jury panel being
sworn due to the denied cause challenge for juror Gilbreath:

    [DEFENSE COUNSEL]: Your Honor, we would object to
    the jury panel being sworn based on our denied cause
    challenge for Juror No. 16, Miss Gilbreath. As she
    testified during voir dire, her husband is currently
    employed by the State Attorney’s Office, which is the
    agency that’s prosecuting [appellant]. She receives family
    income from the agency that’s prosecuting [appellant].
    We’d ask that she be stricken and possibly replaced with
    the alternate juror.

    THE COURT: Mr. Milo?

    [PROSECUTOR]: Judge, we would rely on previous
    argument from yesterday. She indicated that she would
    be fair and impartial, and she has also been a criminal
    defense attorney. And she was actually a criminal defense
    attorney after she was employed with the State
    Attorney’s Office.

    THE COURT: Well, I’ll find that there, in my mind, is
    absolutely no reasonable doubt that she can be fair and
    impartial. I happen to know the woman.

(Emphasis added).

     The test for whether an individual should be excused for cause
is whether a juror “can lay aside any bias or prejudice and render
his verdict solely upon the evidence presented and the instructions

                                  6
on the law given to him by the court.” State v. Williams, 465 So. 2d
1229, 1231 (Fla. 1985) (quoting Lusk v. State, 446 So. 2d 1038, 1041
(Fla. 1984)). While the test initially appears to be a solely
subjective one concerning the ability of a particular juror to render
an impartial verdict, certain relationships a prospective juror has
with people who are connected to the case being tried create such
an objective appearance of partiality that challenges for cause
should be granted. Polynice v. State, 568 So. 2d 1346 (Fla. 4th DCA
1990). “In order to satisfy the appearance of justice, a sworn jury
should not include as its foreman, the step father of an officer who
testified in the case.” Id. at 1347 (emphasis added). Our justice
system needs not only to be fair but also to appear fair to the public
at large. In Denson v. State, 609 So. 2d 627, 629 (Fla. 4th DCA
1992), the court stated:

    Not only for the reasons cited above but also for the
    integrity of the judicial process and the guarantee of the
    defendant’s constitutional right to trial by a fair and
    impartial jury, we hold that it is error to fail to excuse
    from jury service an assistant state attorney from the
    very office charged with prosecuting a defendant.

(Emphasis added).

     In analyzing whether the appearance of integrity in the
judicial system is met, certain factors must be evaluated, including
the connection of a prospective juror or the person with a close
relationship with that juror with a particular case.

    Thus, a person’s employment or status will not necessarily
require exclusion if there is no connection with a particular case.
See, e.g., Williams, 465 So. 2d at 1230-31 (holding a juror’s
employment as a corrections officer did not necessarily require
exclusion from jury for battery on a corrections officer because
there was no showing of any connection with a particular case).

     Where, however, an extremely close relationship exists
between the prospective juror and a person with a connection to
the case being prosecuted, disqualification is required. See Bethel
v. State, 122 So. 3d 944 (Fla. 4th DCA 2013) (holding a potential
juror who was an assistant state attorney in the office prosecuting
the case should have been disqualified for cause); Henry v. State,
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586 So. 2d 1335 (Fla. 3d DCA 1991) (holding reversal was required
where a legal secretary in the state attorney’s office that was
handling the case was not disqualified for cause); Polynice, 568 So.
2d at 1347 (holding disqualification was required where juror’s
stepson was one of the State’s witnesses).

     While there is no case directly on point with the facts of the
instant case, the perceived integrity of the criminal justice system
requires reversal in this case.

     The relationship between the juror and the state attorney
employee could not have been any closer, wife and husband. The
juror’s husband was an investigator for the state attorney
prosecuting this case. While an investigator is not an attorney in
the prosecutor’s office, the close relationship required between
attorneys and their investigators and the important role that
investigators play in the prosecution of cases is undeniable.
Clearly, the relationship is as important as the one established in
Henry, which required disqualification.

      The bottom line is that we should not seat a juror where there
is a reasonable perception that the juror’s verdict may be based on
not wanting to upset her husband or his co-workers. Even if
automatic disqualification is not required, mere assurances of
impartiality should not be sufficient to allow a juror with close
connections to the state attorney’s office prosecuting the case to
serve on a jury. See Denson, 609 So. 2d at 628-29. As held in Ortiz
v. State, 543 So. 2d 377 (Fla. 3d DCA 1989), under circumstances
where partiality can easily be inferred, there should be a strong
showing of no partiality prior to allowing a juror to serve.

     The record here does not indicate such a showing. In fact, the
trial judge, at least in part, made his determination that the juror
could be impartial on non-record evidence - his own personal
knowledge of the juror. Determinations of this type should be made
on record evidence that can be challenged by the parties.

    Appellant should be granted a new trial.

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Andy Thomas, Public Defender, M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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