       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   DEMETRIUS JEFFREY HOPKINS,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-4266

                             [ July 12, 2017 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 13CF011872AMB.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Appellant, Demetrius Jeffrey Hopkins, was found guilty by a jury of
first-degree murder with a firearm. On appeal, he argues that the trial
court abused its discretion in denying his motion for continuance,
imposing an unreasonable time limitation on voir dire, and denying
challenges for cause of two jurors who expressed doubts about their ability
to follow the law if appellant did not testify. We affirm the trial court’s
ruling on the motion for continuance but reverse for a new trial because
of the trial court’s errors during jury selection.

   At the beginning of trial, the trial court advised counsel that each side
would be limited to three hours for voir dire. Defense counsel objected to
this time limit, and when the clerk later announced the end of the three
hours, he renewed his objection and requested twenty additional minutes
to question seven remaining jurors whom he had not been able to question
individually. Defense counsel proffered to the court the areas of inquiry
he wanted to cover, including firearms and misidentification. The trial
court denied the request.
  We review a trial court’s imposition of time limits on voir dire for an
abuse of discretion. O’Hara v. State, 642 So. 2d 592, 593–94 (Fla. 4th
DCA 1994).

   Florida Rule of Criminal Procedure 3.300(b) affords the parties a
reasonable voir dire examination of prospective jurors. The rule preserves
the “right of the parties to conduct an examination of each juror orally.”
Id. “The purpose of voir dire is to obtain a ‘fair and impartial jury to try
the issues in the cause.’ ” Williams v. State, 424 So. 2d 148, 149 (Fla. 5th
DCA 1982) (quoting King v. State, 390 So. 2d 315, 319 (Fla. 1980), receded
from on other grounds by Strickland v. State, 437 So. 2d 150 (Fla. 1983)).

   Trial courts have considerable discretion in determining the extent of
counsel’s examination of prospective jurors. This includes setting time
limitations on voir dire. Perry v. State, 675 So. 2d 976, 979 (Fla. 4th DCA
1996). However, limits that do not “flex with the circumstances” can result
in unreasonable curtailment of counsel’s efforts to obtain a “fair and
impartial jury to try the issues in the cause.” Williams, 424 So. 2d at 149.

    According to appellant, the trial court’s pre-established time limit on
voir dire allowed counsel only 3.6 minutes per juror and prevented counsel
from pursuing a reasonable voir dire examination. 1 See Gosha v. State,
534 So. 2d 912, 912 (Fla. 3d DCA 1988) (holding that, as a matter of law,
a one-to-three minute limit for voir dire examination of each potential juror
is unreasonable and an abuse of discretion).

    The state, relying on Anderson v. State, 739 So. 2d 642 (Fla. 4th DCA
1999), responds that the trial court did not abuse its discretion in limiting
voir dire in this case. In Anderson, we affirmed the trial judge’s 30-minute
limitation on voir dire for each party. We stated that “[i]n reviewing a trial
court’s discretionary decision to limit the amount of time allotted for voir
dire, we consider ‘the nature of the case and the reasonableness of the
use, by the attorneys, of the time allotted.’ ” Id. at 644 (quoting Rodriguez
v. State, 675 So. 2d 189, 191 (Fla. 3d DCA 1996)).

    We find Anderson distinguishable. Unlike the less severe grand theft
charge in Anderson, the charged offense in this case was first-degree
murder with a firearm. Moreover, as we pointed out in Anderson, defense
counsel in that case did not object when the trial court informed counsel
of the 30-minute limitation at the beginning of voir dire. Here, in contrast,
defense counsel objected to the initial imposition of the 180-minute time

1The jury pool started with 80 potential jurors but was reduced to about 50
potential jurors by the time appellant began his examination.

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limit, as well as to the trial court’s later refusal to extend the time for
examination. Given the large jury pool and the very few minutes the 3-
hour time permitted counsel with each juror, the trial court abused its
discretion in refusing to grant a few additional minutes, where there were
jurors whom defense counsel could not reach within the allotted time for
voir dire. See Perry, 675 So. 2d at 979 (holding that the trial court abused
its discretion when it terminated voir dire before defense counsel had an
opportunity to question all jurors individually).

   Appellant next argues that the trial court committed reversible error in
denying his cause challenges of two jurors who expressed ambivalence
about their ability to follow the law if the defendant chose not to testify.

   During jury selection, when defense counsel asked whether the jurors
would be influenced by an accused’s decision not to testify, the following
exchange occurred:

      Juror Mr. C: You know, I’m constitutionalist.          I fully
      understand why the 5th is the 5th but, it’s -- you know, there
      are two sides to every story, and both sides are going to get
      the -- a lot of the details wrong but, unless you hear both
      sides, you can’t -- I don’t think you could actually -- yeah,
      that’s tough for me.

      Defense Counsel: I hear what you’re saying, you’re saying,
      it’s tough. And I think most people and -- was it Ms. C with
      the seven children. You mentioned how in deciding what you
      would do in terms with your children, you would hear both
      sides, you know, and talk to your kids, and so this kind of
      applies with us too. You might have that kind of, like, it’s the
      normal reaction, yeah, I want to hear both of sides, but you
      might not. And the question really is -- it's not, do you want
      to hear both sides.

      Juror Mr. C: I know the question you’re asking, it’s going to a
      negative -- it may not be enough to influence me or to change
      my mind one way or another, but it’s going to negatively
      influence the way I’m thinking about what’s going on.

      Defense Counsel: Okay. And could it negatively influence the
      way you are thinking in a way that would be adverse to the
      accused?

      Juror Mr. C: That possibility exists.

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   Another prospective juror, Juror Mr. P, stated that he had similar
concerns about a defendant not testifying. He noted that politicians are
notorious for taking “The Fifth” on issues they do not want to address for
fear of being incriminated. The trial judge pointedly asked Juror Mr. P if
he could simply follow the law. Juror Mr. P initially replied, “I believe I
can, yes,” but then he added, “I’m not certain that I can.”

    Defense counsel moved to strike Jurors Mr. C and Mr. P for cause. After
the trial court denied the motions, defense counsel used peremptory
strikes on these jurors and requested two additional peremptory
challenges to strike other objectionable venirepersons. When the trial
court denied the request, defense counsel noted for the record that his
acceptance of the jury was subject to the qualification that he would have
used a peremptory challenge on Juror Ms. C, a bartender like the critical
trial witness against appellant. Juror Ms. C actually sat on the jury.

   The standard of review of a trial court’s ruling on a cause challenge is
abuse of discretion. Ranglin v. State, 55 So. 3d 744, 746 (Fla. 4th DCA
2011).    “The test for determining juror competency is whether a
prospective juror can lay aside any prejudice or bias and decide the case
based solely on the evidence and the court’s instructions.” Chapman v.
State, 593 So. 2d 605, 606 (Fla. 4th DCA 1992). When there is a
reasonable doubt about the ability of a juror to decide the case fairly and
impartially, the juror should be excused for cause. Id. “[A]mbiguities or
uncertainties about a juror’s impartiality should be resolved in favor of
excusing the juror.” Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007).

    In this case, the responses of Jurors Mr. C and Mr. P. during voir dire
examination raised reasonable doubt as to their ability to render an
impartial decision. Mr. C admitted that not hearing the defendant’s side
of the story might negatively influence his view of the defense. Mr. P
likewise was not certain he could follow the law if the defendant exercised
his right not to testify. Thus, these jurors should have been excused for
cause and appellant should not have been required to use his peremptory
challenges to excuse them.

   Each of the trial court’s errors during jury selection provides an
independent ground for reversal. Accordingly, we reverse appellant’s
conviction and sentence and remand for a new trial.

   Reversed and Remanded for a new trial.

WARNER and LEVINE, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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