       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                  ANTHONY RAYNELL SPENCER JR.,
                           Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3021

                          [ February 18, 2015 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen A. Rapp, Judge; L.T. Case No. 11CF012349AMB.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

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

TAYLOR, J.

    In this appeal from a conviction for aggravated battery with a firearm,
appellant, Anthony Raynell Spencer Jr., argues that the trial court erred
in (1) allowing the state’s peremptory strike of an African American juror
without conducting a proper inquiry into the state’s reason for the strike,
and (2) permitting the victim to testify about collateral evidence that
appellant tried to take the victim’s cell phone a week before the shooting.
We conclude that the trial court did not abuse its discretion in allowing
evidence of the cell phone incident, because this evidence was inextricably
intertwined with the aggravated battery charge. The evidence was
necessary to establish the context out of which the shooting arose and to
adequately describe the events leading up the charge. See Ward v. State,
59 So. 3d 1220, 1222 (Fla. 4th DCA 2011).

   We agree, however, with appellant’s argument that the trial court erred
in permitting the state to exercise a peremptory challenge against an
African American juror, because the trial court supplied its own reasons
for the strike instead of requiring the state to give a race-neutral reason
and then assessing the genuineness of the state’s reason. However,
because appellant did not properly preserve this issue for appellate review
by accepting the jury subject to his prior objection or renewing his
objection before the jury was sworn, we affirm.

   At trial, during jury selection, the prosecutor attempted to strike Juror
3.4, a Jamaican-born juror, for cause. The following exchange occurred:

      [THE COURT]: I’ll strike that. [Juror 3.4] was rubbing her
      stomach and – is she pregnant? I didn’t want to ask her.
      [THE STATE]: Judge, I also have her cause. She made several
      statements.
      [THE COURT]: Cause, unless she was sick. But what if she
      was but she threw up and she would be fine. I saw some of
      the jurors rolling their eyes.
      [DEFENSE]: I asked her specifically.
      [THE COURT]: I know you did.
      [DEFENSE]: She said that she ate something but she would
      be fine. So I would object to her being stricken for cause.
      [THE COURT]: We’ll leave her on there.

    Juror 3.4 spoke softly during the jury selection proceedings, and the
trial judge and attorneys asked her to speak up because they had difficulty
hearing her. At one point, when Juror 3.4 was late returning from a
recess, the court asked her “[h]ow long were you going to keep us waiting?”
She apologized.

   When defense counsel asked whether anyone preferred not to serve on
the jury, Juror 3.4 raised her hand. The trial judge asked her if she had
been sick earlier; she said that she had, and explained: “I’m just nervous
about the situation. It’s my first time. If I get called I would do the best
that I can.” When defense counsel asked her if she felt well enough to sit
on the jury and make a decision on the facts of the case, she answered
that “[i]t would pass away.”

   Later, when appellant objected to the prosecutor’s use of a peremptory
challenge against Juror 3.4, the trial judge did not ask the prosecutor to
give a race-neutral reason for the peremptory strike. Instead, the judge
stated his own reasons for allowing the strike:

      [THE STATE]: The State would strike Juror 3.4
      [DEFENSE]: Judge, we would object to 3.4 being stricken for
      cause and request a race neutral reason.
      [THE COURT]: There was a lot of race neutral.
      [DEFENSE]: African American

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      [THE COURT]: You struck an African American. There was a
      lot of reasons. One, she was late. She didn’t show up. Two,
      you couldn’t hear what she had to say. Three, she was sick,
      threw up.
      [DEFENSE]: She also said that she was fine now. Whatever
      she had to eat.
      [THE COURT]: I think there was a lot of reasons. I don’t see
      any need to inquire further.
      [DEFENSE]: Are you allowing the State to strike Juror 3.4?
      [THE COURT]: Yes.
      [DEFENSE]: Over objection.

    After the state and defense exhausted their remaining peremptory
strikes and chose an alternate juror, the jury was sworn without defense
counsel renewing her earlier objection.

   When a party challenges the opponent’s exercise of a peremptory strike,
the trial court must follow the three-step procedure set forth by the Florida
Supreme Court in Melbourne v. State, 679 So. 2d 759 (Fla. 1996):

      Step 1 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. If these
      initial requirements are met, the court must ask the
      proponent of the strike to explain the reason for the strike.
      Step 2 At this point, the burden of production shifts to the
      proponent of the strike to come forward with a race-neutral
      explanation.
      Step 3 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.

Frazier v. State, 899 So. 2d 1169, 1173 (Fla. 4th DCA 2005) (citing
Melbourne, 679 So. 2d at 764). “Compliance with each step is not
discretionary, and the proper remedy when the trial court fails to abide by
its duty under the Melbourne procedure is to reverse and remand for a new
trial.” King v. State, 106 So. 3d 966, 968 (Fla. 4th DCA 2013) (quoting
Hayes v. State, 94 So. 3d 452, 461 (Fla. 2012)) (internal quotation marks
omitted); see also Welch v. State, 992 So. 2d 206, 212 (Fla. 2008) (reversing
because the trial court focused on the grounds for the defense’s objection
instead of requesting the state’s reason for the strike); Sabine v. State, 58

                                     3
So. 3d 943, 946 (Fla. 2d DCA 2011) (reversing because the trial court
analyzed the pattern of the state’s prior peremptory strikes rather than
following the proper Melbourne procedure).

    In this case, appellant complied with Step 1 of the Melbourne procedure
by timely objecting to the peremptory strike on racial grounds and
requesting the state’s race-neutral reason for the strike. However, the trial
court failed to follow steps 2 and 3 by not requiring the state to provide a
race-neutral explanation. Rather, the court supplied its own reasons for
the challenge and sustained them without inquiring of the state’s reasons
for the challenge. The court noted that there are a “lot of reasons” to strike
Juror 3.4: (1) she was late showing up after a recess; (2) she spoke too
softly; and (3) she was sick.

   The trial court’s failure to follow the proper procedure when faced with
a challenge to the use of peremptory strikes would ordinarily result in a
reversal. See Tillman v. State, 522 So. 2d 14, 17 (Fla. 1988) (reversing
death sentence and remanding for a new sentencing proceeding because
the trial court expressed his own reason for allowing a peremptory strike
against a prospective juror without conducting a proper inquiry into the
prosecutor’s racially neutral reasons for the strike). As the Tillman court
explained, “[t]he procedure that was followed failed to insure that Tillman’s
rights to a jury composed of a fair cross section of the community were
protected. Instead, Tillman was subjected to a proceeding that was open
to racial discrimination by the state, thus violating article I, section 2 of
the Florida Constitution, as well as the Equal Protection Clause of the
fourteenth amendment to the United States Constitution.” Id.

   The state correctly argues, however, that appellant failed to preserve
the peremptory strike issue for review, because defense counsel failed to
renew the objection before the jury was sworn.

    As a general rule, a party must renew an objection to a peremptory
strike before affirmatively accepting the jury. Joiner v. State, 618 So. 2d
174, 176 (Fla. 1993). In Joiner, the supreme court held that the defendant
waived his peremptory challenge issue by affirmatively accepting the jury
before it was sworn without renewing his objection or accepting the jury
subject to his earlier objection. Id. The supreme court explained that
“counsel’s action in accepting the jury led to a reasonable assumption that
he had abandoned, for whatever reason, his earlier objection. It is
reasonable to conclude that events occurring subsequent to his objection
caused him to be satisfied with the jury about to be sworn.” Id.

   Appellant relies on Gootee v. Clevinger, 778 So. 2d 1005 (Fla. 5th DCA

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2000), in arguing that this issue was preserved for appellate review. In
Gootee, the Fifth District held that the personal representative of a
decedent in a wrongful death action adequately preserved his challenge to
jurors for cause, even though he did not renew his objection immediately
before the jury was sworn. Id. at 1009. The court concluded that the
cause challenge was preserved because the personal representative made
an objection just moments before the jury was sworn. After the trial court
denied the personal representative’s cause challenges to two jurors, the
personal representative requested an additional peremptory challenge to
use on another juror. The court denied his request and “within a matter
of a couple of minutes (three pages later in the transcript), the jury was
sworn.” Id.

    In finding that the jury issue was preserved, the Fifth District
distinguished Joiner, stating “[i]n this case, because of the specific
objection communicated to the judge and the proximity of this objection
to the swearing of the jury, there is no question that the judge understood
and rejected Gootee’s consistently maintained position that the judge had
erred. It would have been futile for the lawyer to repeat what he had just
told the judge.” Id. at 1009.

   Similarly, in Johnson v. State, 27 So. 3d 761, 764 (Fla. 2d DCA 2010),
the court held that that there was no need for the defendant to renew his
objection to a peremptory challenge before the jury was sworn to preserve
the issue, because the trial court reconsidered and overruled the
defendant’s objection immediately prior to swearing in the jury. The
Second District reasoned that a further objection after the trial court again
sustained the strike would have been an obviously futile gesture.

   More recently, in Smith v. State, 143 So. 3d 1194 (Fla. 1st DCA 2014),
the First District rejected the state’s position that defense counsel failed to
preserve the peremptory strike issue by explicitly renewing the objection
before accepting the jury. There, the court noted that the jury was sworn
“only a matter of minutes after the objection. As such, the objection did
not need to be renewed, and it is not reasonable to believe defense counsel
abandoned the objection.” Id. at 1196.

    In USAA Casualty Insurance Co. v. Allen, 17 So. 3d 1270, 1271 (Fla. 4th
DCA 2009), we disagreed that renewing an objection prior to the swearing
in of the jury would have been futile. We distinguished Gootee because
the objection was “not so close to the end of jury selection that it could be
considered preserved without renewing the objection, as in Gootee . . . .”
Id.; see also Romero v. State, 105 So. 3d 550, 552 (Fla. 1st DCA 2012)
(holding that Gootee did not apply because “there was a day’s lapse

                                      5
between appellant’s initial objection and the jury being sworn”).

   In the present case, although defense counsel did raise an initial
objection to the peremptory strike, she did not renew it prior to the jury
being sworn or accept the jury subject to her objection, as required by
Joiner. The facts and circumstances that excused the requirement to
renew the objection in Gootee, Johnson, and Smith are not present in this
case. Here, the jury was not sworn “only a matter of minutes after the
objection,” but, instead, after defense counsel and the state continued
exercising peremptory challenges and making selections that affected the
composition of the jury. Under these circumstances, counsel’s renewal of
her objection would not have been futile, and her failure to renew her
objection or accept the jury subject to her earlier objection could have “led
to a reasonable assumption that [s]he had abandoned, for whatever
reason, [her] earlier objection.” Joiner, 618 So. 2d at 176. As the supreme
court explained in Joiner, “[i]t is reasonable to conclude that events
occurring subsequent to [her] objection caused [her] to be satisfied with
the jury about to be sworn.” Id.

   In any event, a trial judge should not have to speculate about whether
counsel is maintaining a prior objection before swearing in the jury. To
avoid an unintended waiver of the issue, counsel should apprise the court
of her continued objection to peremptory challenges before the jury is
sworn and give the court “one final opportunity to correct any possible
errors before the jury is sworn.” Milstein v. Mut. Sec. Life Ins. Co., 705 So.
2d 639, 642 (Fla. 3d DCA 1998) (Sorondo, J., specially concurring).

    Finally, we reject appellant’s argument that he did not “affirmatively
accept” the jury because the trial judge did not specifically ask defense
counsel if she accepted the jury, and because she did not respond that she
did accept the jury before it was sworn. Even though defense counsel
made no statement affirmatively accepting the jury, she nonetheless had
to renew her objection to the peremptory strike to preserve the issue. See
Romero, 105 So. 3d at 552 (“[A]ffirmative acceptance as required by Joiner
can be inferred from counsel’s failure to renew his objection.”); Milstein,
705 So. 2d at 641 (“[T]he logic of Joiner requires the litigant to renew the
previous objection even where, as here, the litigant has made no statement
affirmatively accepting the jury.”); see also Milstein, 705 So. 2d at 642
(Sorondo, J., specially concurring) (suggesting that in Mitchell v. State, 620
So. 2d 1008 (Fla. 1993), the supreme court expanded its holding in Joiner
to require “that even where counsel does not formally accept the jury, an
objection must be recorded before the jury is sworn”).

   We conclude that Joiner required the objection to be renewed in this

                                      6
case. Since defense counsel failed to renew her objection and preserve the
issue for appellate review, we affirm.

   Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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