          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT
                                  July Term 2014

                              MITCHELL LANDIS,
                                  Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D12-1989

                                 [July 16, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa M. Porter, Judge; L.T. Case No. 09-9413 CF10A.

  Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort
Lauderdale, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Appellant, Mitchell Landis (“Defendant”), was charged with trafficking
in cocaine. When the case proceeded to a jury trial, the State exercised a
peremptory challenge during jury selection on a prospective juror who was
African-American. The trial court found the race-neutral reason given by
the State to be “genuine” and allowed the strike. Defendant has presented
three points on appeal, however, we will address only one—specifically the
issue of whether the trial court erred in allowing the State to exercise the
peremptory strike under these circumstances.1 On this point, we find
there was error, and reverse.

   During voir dire, the trial court had asked members of the jury to state
their answers to the jury questionnaire for the court. The prospective juror
at issue identified his occupation as a kitchen manager. Although the
parties questioned the remainder of the jury panel, neither the State nor

1   Defendant’s other two points on appeal are rendered moot by our opinion.
defense counsel posed any questions to this prospective juror inquiring
about his experience or his ability to be fair and impartial. When the State
requested a peremptory strike of this juror, defense counsel objected and
requested a race-neutral reason for the strike. The following exchange
then took place:

      THE COURT: For the record, [the prospective juror] is an
      African American male.

      [THE STATE]: He looks Indian to me.

      THE COURT: He’s not Caucasian. He’s a member of the
      protective class whether Indian or Island or African American.
      He appears to be from the protective class. I will ask you for
      a race/neutral reason.

      [THE STATE]: Judge, he’s a kitchen manager. Although that
      means nothing to your honor or counsel. I worked in a
      restaurant a lot. A lot of personal drugs run rampant. I don’t
      want a person like that on my jury panel.

   After the State provided this explanation, the trial court stated, “The
reason you offered is genuine and I will allow your strike.” Counsel for
Defendant again objected to this particular peremptory strike, arguing that
the defense did not find the reason for the strike to be genuine. Counsel
also pointed out that this juror never stated that he had any arrests, that
he knew anyone who had been arrested, or that he personally used drugs
or knew anyone that did. Thereafter, another prospective juror, a white
male who informed the court that he managed several family owned
restaurants, was accepted as an alternate without objection. Prior to the
jury being sworn, defense counsel again renewed his objection on the jury
selection issue. The jury as sworn did contain one African-American juror.
At the conclusion of the trial, the jury found Defendant guilty, and he was
sentenced to twenty years imprisonment, which included a fifteen-year
minimum mandatory sentence.

   On appeal, Defendant argues that the trial court erred during jury
selection by failing to make a suitable finding that the proffered race-
neutral reason for the strike was genuine.

    In Melbourne v. State, 679 So. 2d 759 (Fla. 1996), the Florida Supreme
Court set forth the procedure that must be followed when peremptory
strikes are challenged as discriminatory:


                                     2
          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. . . .

          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.

Id. at 764 (internal footnotes omitted). Therefore, the issue presented is
whether the record shows that the trial court made a determination that,
“given all the circumstances surrounding the strike, the explanation [was]
not a pretext.” Melbourne, 679 So. 2d at 764.

    This court has previously recognized that: “Melbourne ‘does not require
the trial court to recite a perfect script or incant specific words in order to
properly comply with its analysis under step three,’ ” but “the trial court
must still ‘weigh[ ] the genuineness of a reason just as it would any other
disputed fact.’ ” Victor v. State, 126 So. 3d 1171, 1172 (Fla. 4th DCA 2012)
(quoting Wimberly v. State, 118 So. 3d 816, 821 (Fla. 4th DCA 2012)). See
Sutton v. State, 976 So. 2d 643, 644 (Fla. 2d DCA 2008) (holding that the
trial court applied the correct law during step three because “[w]hen the
trial court’s ruling [was] read in its entirety, it [was] apparent that the trial
judge understood that he was making the ruling required for step three
and that he was actually ruling that the facially race-neutral explanation
was not genuine”); Watson v. State, 841 So. 2d 659, 661 (Fla. 4th DCA
2003) (rejecting the defendant’s argument that the trial court failed to
conduct a genuineness inquiry where the record showed that immediately
after striking the potential juror, the court noted there was another
African-American on the venire, indicating that the court was considering
the makeup of the panel).

   In State v. Slappy, 522 So. 2d 18 (Fla. 1988), receded from on other
grounds, Melbourne, 679 So. 2d at 765, our supreme court provided a non-



                                       3
exclusive list of five factors, the presence of any of which will tend to show
that the proffered reason is a pretext:

      (1) alleged group bias not shown to be shared by the juror in
      question, (2) failure to examine the juror or perfunctory
      examination, assuming neither the trial court nor opposing
      counsel had questioned the juror, (3) singling the juror out for
      special questioning designed to evoke a certain response, (4)
      the prosecutor’s reason is unrelated to the facts of the case,
      and (5) a challenge based on reasons equally applicable to
      juror [sic] who were not challenged.

Id. at 22.

    In this case, Defendant essentially argues the presence of three of the
Slappy factors. He contends that: (1) the record does not show that the
prospective juror shared the drug attitudes that the prosecutor attributed
to others in the restaurant industry; (2) the prosecutor failed to sufficiently
examine the prospective juror to explore the existence of any such bias;
and (5) the prosecutor challenged the prospective juror based on reasons
equally applicable to a juror who was not challenged. According to
Defendant, the presence of these circumstances require that the State’s
explanation be deemed a pretext.

   Whether or not an explanation proffered by the proponent of a
peremptory strike is race-neutral and genuine is a determination to be
made by the trial judge. Melbourne, 679 So. 2d at 763. In making this
determination, the trial judge is not bound to accept the reasons proffered
by the proponent at face value. Slappy, 522 So. 2d at 22. The court must
examine “all the circumstances surrounding the strike” to satisfy itself that
the strike is not a pretext. Melbourne, 679 So. 2d at 764; Jones v. State,
787 So. 2d 154, 156 (Fla. 4th DCA 2001).

   On this record, it does not appear that the trial court performed a legally
sufficient genuineness analysis, stating only that it “found [the State’s
reason] to be genuine and not pretextual.” In accepting the State’s
argument, the trial court simply noted that, just as some attorneys have
an aversion to accepting teachers on juries, it is permissible to use a
discretionary strike on a juror solely on the basis of their employment
within an industry that allegedly has a high rate of drug use. This alone is
insufficient to show that the trial court properly considered the issue of
genuineness.



                                      4
   The trial court erred in determining the genuineness of the reason for
the strike based solely on this ground. After a trial court determines that
the proponent has proffered a race, ethnicity, or gender-neutral reason for
the strike and then proceeds to evaluate that reason’s genuineness, the
proper procedure requires the trial court to make an inquiry of the
opponent of the strike. At that point, the opponent bears the burden of
persuasion, to demonstrate why the reason was not genuine. The trial
court should also request that the opponent advise how, given all the
circumstances, the explanation is a pretext for discrimination. Where “no
inquiry is conducted, ‘[d]eference cannot be shown to a conclusion that
was never made.’” Hall v. Daee, 602 So. 2d 512, 516 (Fla. 1992) (quoting
Reynolds v. State, 576 So. 2d 1300, 1302 (Fla. 1991)).

   If the record lacks any indication that the trial court considered the
totality of the circumstances relevant to whether a strike was exercised for
a discriminatory purpose, the reviewing court, which is confined to the
cold record before it, cannot assume that a genuineness inquiry was
actually conducted and give deference to the trial court. Hayes v. State,
94 So. 3d 452, 462 (Fla. 2012); Siegel v. State, 68 So. 3d 281, 287 (Fla.
4th DCA 2011) (reversing for new trial where the record was devoid of any
indication that the trial court actually engaged in requisite genuineness
analysis of the defendant’s reason for peremptory strikes since there was
no proof of consideration of any circumstances relevant to this inquiry).

   The Florida Supreme Court explained in Murray v. State, 3 So. 3d 1108
(Fla. 2009), that in evaluating whether or not a proffered race-neutral
reason for a peremptory strike is a pretext, the court should focus on the
genuineness of the race-neutral explanation as opposed to its
reasonableness.

          In making a genuineness determination, the court may
      consider all relevant circumstances surrounding the strike.
      “Relevant circumstances may include—but are not limited
      to—the following: the racial make-up of the venire; prior
      strikes exercised against the same racial group; a strike based
      on a reason equally applicable to an unchallenged juror; or
      singling the juror out for special treatment.” [Melbourne, 679
      So. 2d] at 764 n.8 (citing State v. Slappy, 522 So. 2d 18 (Fla.
      1988)); see also Booker v. State, 773 So. 2d 1079, 1088 (Fla.
      2000) (“[W]e provided a nonexclusive list of factors a trial court
      may consider in determining whether the reason given for
      exercising a peremptory challenge is genuine . . . .” (citing
      Melbourne, 679 So. 2d at 764 n.8)).


                                      5
Murray, 3 So. 3d at 1120 (citation omitted).

   Florida courts have recognized that a prospective juror’s occupation
can, in some circumstances, be the foundation of a genuinely race-neutral
reason to exercise a peremptory challenge. See Cobb v. State, 825 So. 2d
1080, 1084 (Fla. 4th DCA 2002). It is true that the majority of potential
jurors work, and this fact carries a real risk that a strike based on
occupation alone could be used pretextually as a “facially” race-neutral
reason to strike practically any juror. See Files v. State, 613 So. 2d 1301,
1304 (Fla. 1992). However, “our supreme court has charged Florida’s trial
judges with the primary responsibility for striking the ‘delicate balance
between eliminating racial prejudice and the right to exercise peremptory
challenges.’” Cobb, 825 So. 2d at 1086. “[I]f there is a genuine reason why
a party would fear that a particular juror’s occupation would influence the
juror’s reasoning and cause the juror to view the case unfavorably from
the party’s perspective, then the occupation can be the foundation of a
facially race-neutral reason to exercise a peremptory challenge.”
Hernandez v. State, 686 So. 2d 735, 736 (Fla. 2d DCA 1997).

    Mere recitation of a juror’s occupation is not always sufficient by itself
to provide a facially race-neutral reason. In many cases, courts have
invalidated peremptory challenges as pretextual where the challenged
juror was not questioned and shown to have the same alleged group bias.
See, e.g., Stroder v. State, 622 So. 2d 585, 586 (Fla. 1st DCA 1993)
(prosecutor failed to question teacher of emotionally handicapped students
to explore his perception of her liberality); House v. State, 614 So. 2d 647,
648 (Fla. 2d DCA 1993) (prosecutor failed to question mental health field
worker to elicit her political or social biases); Gibson v. State, 603 So. 2d
711, 712 (Fla. 4th DCA 1992) (prosecutor failed to question black fruit
picker to elicit economic animosity toward Haitian fruit pickers); Hicks v.
State, 591 So. 2d 662, 663 (Fla. 4th DCA 1991) (prosecutor failed to
question music teacher to explore his perception of her greater tolerance
to the use of controlled substances); Reeves v. State, 632 So. 2d 702, 704
(Fla. 1st DCA 1994) (prosecutor failed to question two employees at the
Department of Health and Rehabilitative Services about their feelings
towards the State Attorney’s office); Gadson v. State, 561 So. 2d 1316,
1318-19 (Fla. 4th DCA 1990) (holding that the prosecutor’s explanation
for striking black jurors, stating only that they were teachers, was
pretextual where the jurors were never asked any details about their




                                      6
teaching experiences and a white juror who had also been a teacher was
not challenged).2

   As this court has previously stated, an attorney’s decision not to explore
a potential juror’s drug views can render the explanation for striking him
or her suspect under certain circumstances. Cobb, 825 So. 2d at 1085.3
Here, the State did not question the potential juror concerning his
occupation, or what effect it might have had on his ability to serve as a
juror. No questions were posed about whether his employment in the
restaurant business caused him to form a more permissive attitude toward

2 We recognize, however, that some occupations have such strong associations
with relevant issues that extensive questioning may be unnecessary. See James
v. State, 768 So. 2d 1221, 1223 (Fla. 3d DCA 2000) (finding that the peremptory
strike was genuine even though a recent law graduate was not questioned about
her legal training); Hernandez, 686 So. 2d at 737 (finding that a peremptory strike
was genuine, even where air traffic controller was not questioned about his
feelings on sobriety in a case involving defendant’s use of alcohol, because the
profession demands a high degree of care, precision, and sobriety from its
members). Similarly, a defendant would not need to question at length a
potential juror who was a police officer to justify a strike of that juror. Id.; see
also Morris v. State, 680 So. 2d 1096, 1097-98 (Fla. 3d DCA 1996) (reversing
denial of peremptory challenge where relative of potential juror’s wife was a police
officer); Simmons v. State, 940 So. 2d 580, 583 (Fla. 1st DCA 2006) (recognizing
that a juror’s spouse being a law enforcement officer was race-neutral on its face);
Russell v. State, 879 So. 2d 1261, 1263 (Fla. 3d DCA 2004) (stating that a
potential juror having a relative in law enforcement “has been repeatedly found
to be a valid, race neutral or gender neutral reason for a peremptory strike”);
Chambers v. State, 682 So. 2d 615, 615 (Fla. 4th DCA 1996) (“[T]he law
enforcement background of a juror’s spouse is a properly neutral reason for a
peremptory challenge . . . .”); Czaja v. State, 674 So. 2d 176, 177 (Fla. 2d DCA
1996) (“A close relationship between the juror and a law enforcement officer is a
race-neutral reason for exercising a peremptory strike.”); Rivera v. State, 670 So.
2d 1163, 1166-67 (Fla. 4th DCA 1996) (permissible to strike deputy clerk of court
from jury panel); Ortiz v. State, 543 So. 2d 377, 379 (Fla. 3d DCA 1989)
(permissible to strike secretary in state attorney’s office from jury panel).

3 Likewise, the fact that such a juror asserts upon questioning that she can “sit
in judgment and apply the law” is not dispositive on the issue of whether she can
be properly challenged as a juror unfavorable to the party’s cause. See, e.g.,
Symonette v. State, 778 So. 2d 500, 503 (Fla. 3d DCA 2001) (discussing that when
a juror has been challenged for a valid race-neutral reason, the fact that such a
juror asserts that he or she can nevertheless be fair and impartial does not mean
that the State must be satisfied with the response); Rivera, 670 So. 2d at 1166
(reiterating that, as explained in Slappy, the reasons given for exercising a
peremptory challenge need not be equivalent to a challenge for cause).


                                         7
narcotic use. Without this record, this court is unable to sustain the trial
court’s finding that the State’s race-neutral explanation was genuine. Cf.
Cobb, 825 So. 2d at 1085 (State had genuine fears that the juror, by virtue
of her age and college environment, was more likely to be lenient to a drug
defendant and less favorable to the prosecution where juror stated
“everybody else is using them,” despite fact that the juror believed that
drugs should not be legalized).

   Courts in Florida have held that it can be “racially discriminatory to
exercise a peremptory challenge against a prospective juror in the minority
where the proffered reason applies equally to a prospective juror in the
majority.” Smith v. State, 799 So. 2d 421, 424 (Fla. 5th DCA 2001); see
also Hayes v. State, 94 So. 3d at 462 (finding that one relevant
circumstance a trial court can consider in determining the genuineness of
a strike is whether the strike is “based on a reason equally applicable to
an unchallenged juror.”). For example, in Nowell v. State, 998 So. 2d 597,
601 (Fla. 2008), the State sought to strike a Hispanic juror, in part because
the juror was young and appeared to be of a similar age to the defendant.
Our supreme court held that age could be a legitimate race-neutral reason
for a peremptory challenge, but nevertheless found that the trial court
erred in accepting the “age-based justification” as genuine, because the
State’s proffered reason was also “clearly applicable” to a “similarly aged
white male whom the State failed to challenge.” Id. at 605; see also
Wallace v. State, 889 So. 2d 928, 930 (Fla. 4th DCA 2004) (trial court erred
in accepting State’s explanation that African–American juror worked for a
law firm, where State never challenged a white lawyer).

    Here, the challenged African-American prospective juror was similarly
situated to the white male alternate juror who was accepted without
challenge, despite that fact that he had also managed several family owned
restaurants. See Stroia v. State, 119 So. 3d 1274, 1279 (Fla. 4th DCA
2013) (finding that jurors with family members who had been arrested for
drug charges were similarly situated); Foster v. State, 732 So. 2d 22, 24
(Fla. 4th DCA 1999) (State’s asserted reason of prior arrests of immediate
family members for strikes of African–American jurors was not genuine,
where challenge “was equally applicable to non-black jurors who were not
challenged”); Mayes v. State, 550 So. 2d 496, 498 (Fla. 4th DCA 1989)
(finding that a nurse and lab technician were similarly situated). As a
result, the trial court should have made further inquiry into the challenged
strike.

  In sum, there is insufficient information contained in the record before
us to support the trial court’s finding that the prospective juror’s


                                     8
occupation was a legitimate race-neutral reason for the State’s peremptory
challenge. As a result, we are compelled by the cases cited herein to find
that the trial court’s determination of the genuineness of the strike lacked
sufficient grounds and was clearly erroneous. Melbourne, 679 So. 2d at
764-65; Hayes, 94 So. 3d at 462; Young v. State, 744 So. 2d 1077, 1082
(Fla. 4th DCA 1999). Therefore, we reverse Defendant’s conviction and
hereby order a new trial.

   Reversed and Remanded for New Trial.

LEVINE and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     9
