        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            DANIEL D. LENZ,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-198

                             [April 25, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No.
2013CF001569A.

   Carey Haughwout, Public Defender, and Marcy K. Allen, Special
Assistant Public Defender, West Palm Beach, for appellant.

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

CIKLIN, J.

    After his first conviction was reversed due to the admission of
improper evidence, Daniel Lenz, the defendant below, was retried and
found guilty of crimes involving a child victim. He challenges his
conviction and sentence of life imprisonment, raising numerous issues,
two of which we find have merit. We agree with the defendant that the
trial court erred in overruling a defense objection to the prosecutor’s
closing argument, which shifted the burden of proof to the defendant.
We also find that the trial court erred in denying his peremptory strike of
a prospective juror.

                        Improper Closing Argument

   While the defendant was in jail awaiting trial, he spoke to his wife (the
victim’s grandmother) and their telephone conversations were recorded
by jail authorities. During closing argument at trial, the prosecutor
played the recording of the first phone call the defendant made to his
wife, and offered the following closing argument commentary:
      And sometimes silence can be deafening. And in this case in
      this jail call, I think his silence not to comfort her and say,
      hey, this is a misunderstanding, I didn’t do it on purpose, I
      didn’t have a lewd intent, something to that effect, he’s
      silent. I can’t help but wonder what has changed. Think
      about this. This is early on in the case, this is the first jail
      call. What has changed over the three years, what has
      changed? I’ll tell you what’s changed. He’s had three years
      to think about this. He’s had three years to think of his
      story and to explain everything away.

The prosecutor then played a portion of a recording where the defendant
tells his wife he cannot talk about the case over the phone, as “[t]hat can
put yourself in jeopardy.” The prosecutor made the following statements
in conjunction with this recorded clip:

      Really? And he was innocent. Why couldn’t he talk about
      the case? Why couldn’t he get on the phone and say this is a
      misunderstanding, why couldn’t he say I was tricked by the
      police, why couldn’t he say PTSD kicked in, why couldn’t he
      say all that? That wouldn’t put him in jeopardy, not one bit.
      Not at all. He knows he’s guilty, that’s why he doesn’t want
      to talk about this case.

    Defense counsel objected, and argued that the statements constituted
burden shifting. The trial court overruled the objection: “I mean
obviously this is in evidence, but, you know, he’s allowed to comment on
it. I don’t see how it’s burden shifting. He’s just pointing out that he
didn’t say certain things.”

    We are compelled to once again remind prosecutors and defendants
alike that improper closing argument has no place in the lexicon of
criminal court trials and is, with a nominal amount of reflection and trial
preparation, easy to avoid. We once again provide a refresher. We first
recognize that “[i]t is within the court’s discretion to control the
comments made to a jury, and a court’s ruling will be sustained on
review absent an abuse of discretion.” Salazar v. State, 991 So. 2d 364,
377 (Fla. 2008) (citation omitted).      A burden-shifting comment is
reviewed for harmless error. See Paul v. State, 980 So. 2d 1282, 1283
(Fla. 4th DCA 2008). “It is well settled that due process requires the
state to prove every element of a crime beyond a reasonable doubt.”
Warmington v. State, 149 So. 3d 648, 652 (Fla. 2014) (citation omitted).
“For that reason, it is error for a prosecutor to make statements that

                                     2
shift the burden of proof and invite the jury to convict the defendant for
some reason other than that the State has proved its case beyond a
reasonable doubt.” Id. (citation omitted). Thus, “the state cannot
comment on a defendant’s failure to produce evidence to refute an
element of the crime, because doing so could erroneously lead the jury to
believe that the defendant carried the burden of introducing evidence.”
Id. (citation omitted). “Comments on silence may also equate to burden-
shifting comments[.]” Gleason v. State, 188 So. 3d 35, 38 (Fla. 4th DCA
2016).

   The Fifth District summarized the types of comments our courts have
held improperly shift the burden of proof to the defendant:

      [T]elling the jurors that if they believed the police officers
      instead of the defendant, then they should find the
      defendant guilty; informing the jurors that the defendant did
      not have tests performed on evidence found at the scene,
      such as hair and blood samples, to determine that the
      evidence did not come from him; commenting on the failure
      of the defendant to call witnesses; arguing that the
      defendant’s request for a jury instruction regarding self
      defense is an admission by the defendant that he is guilty;
      and misadvising the jurors that they have to believe the
      testimony of the defendant over that of the police officers to
      have a reasonable doubt.

         What each of these examples has in common . . . is the
      prosecutor’s invitation to convict the defendant for a specific
      reason other than the state’s proof of the elements of the
      crime beyond a reasonable doubt . . . .

Rivera v. State, 840 So. 2d 284, 288 (Fla. 5th DCA 2003) (footnotes
omitted).

   Our courts have also opined that an argument emphasizing a
defendant’s failure to proclaim his innocence is the equivalent of a
burden-shifting argument. See Fowler v. State, 67 So. 3d 1073, 1074
(Fla. 1st DCA 2011) (finding that trial court should have granted
evidentiary hearing on defendant’s post-conviction claim of ineffective
assistance of counsel, which related to prosecutor’s argument that
defendant should have proclaimed his innocence to the police, as the
argument “improperly shifted the burden of proof to the defendant”);
Sackett v. State, 764 So. 2d 719, 722-23 (Fla. 2d DCA 2000) (finding trial
court erred in allowing prosecutor to argue that defendant did not tell

                                    3
officers investigating a domestic violence accusation that his accuser was
drunk and making up allegations, as “the prosecutor’s statement was the
equivalent of arguing to the jury that Sackett should have proclaimed his
innocence to the officers,” and “[s]uch an argument improperly shifts the
burden of proof”).

    Opinions of this court provide guidance, although we have frequently
framed the issue as a comment on silence. In Cowan v. State, 3 So. 3d
446, 447 (Fla. 4th DCA 2009), the defendant and his codefendant were
arrested and placed in a police car.           The codefendant asked the
defendant if he thought they had been caught for home invasion. Id.
According to the prosecutor, the defendant’s mouth moved as if he was
answering the question. Id. But the defendant testified at trial that he
was not involved in the burglary and that he did not respond to his
codefendant’s question. Id. On cross-examination, over objection, the
prosecutor asked the defendant why he hadn’t responded by asking the
codefendant “What are you talking about, what burglary?” Id. In closing
argument, the prosecutor told the jury that a reasonable person would
have asked the codefendant, “What are you talking about?” Id. at 448.
On appeal from his conviction, the defendant argued that the questioning
and argument violated his right against self-incrimination. Id. This
court found that any voluntary inculpatory statements the defendant
made were admissible, but that the “[p]ost-arrest, custodial silence of the
defendant is simply inadmissible as evidence of guilt and is not a proper
subject of argument.” Id. at 449. This court also recognized that “[t]he
prosecution is not permitted to comment upon a defendant’s failure to
offer . . . an exculpatory statement prior to trial, since this would amount
to a comment upon the defendant’s right to remain silent.” Id. at 450
(emphasis omitted) (citation omitted). We found that the questions and
argument were fairly susceptible of being taken as a comment on silence,
and it reversed for a new trial. Id. at 451.

    In Rao v. State, 52 So. 3d 40, 42 (Fla. 4th DCA 2010), the defendant
telephoned his mother and advised her of his arrest but told her there
was nothing for her to say because he had never spoken “about it” to his
mother. Id. During trial, the prosecutor pointed out that the defendant
did not say to his mother, “I don’t know what I’m doing here, I have no
idea what I’m doing here,” and he “never said he did not do it.” Id. at 44-
45. On appeal, this court found the case comparable to Cowan, and
once again held that the prosecutor’s comments “on the defendant’s
failure to explain his circumstances to his mother constituted an
impermissible comment on silence.” Id. at 45. However, this court
found the error was not preserved and not fundamental error, and that if
it had been preserved it was harmless. Id. at 45-46.

                                     4
    The state cites Wray v. State, 639 So. 2d 621 (Fla. 4th DCA 1994),
and Ivey v. State, 586 So. 2d 1230 (Fla. 1st DCA 1991), for the
proposition that the prosecutor’s argument was not an impermissible
comment on silence where the defendant did not exercise his right to
remain silent. Those cases are patently distinguishable, as they involved
1) statements made to law enforcement after Miranda was waived, and 2)
the prosecutor’s comments on inconsistencies in a defendant’s statement
to police and a defendant’s testimony at trial regarding the incident. See
Wray, 639 So. 2d at 622-23; Ivey, 586 So. 2d at 1233-34. Here, the
objection was based on the prosecutor’s comments on the defendant’s
silence during a telephone conversation with his wife. During that phone
call, the defendant did not address the substance of the allegations or
offer any reason for the conduct alleged. Instead, he told his wife that he
could not speak about the allegations.

   In the instant case, the defense lodged a “burden-shifting” objection
rather than a “comment on post-arrest silence” objection, but this court
has recognized that, generally, this is a distinction without a difference.
Gleason, 188 So. 3d at 38.

   We find that the prosecutor’s argument was both an impermissible
comment on silence and a burden-shifting comment, with either one
being egregious and obviously improper. 1

    We must point out that the first conviction in this case was reversed
and also based on the admission of yet another portion of the recorded
jail phone calls where the defendant and his wife discussed retaining an
attorney, which we held to be a clearly improper attempt to focus the
jury on another impermissible factor: the defendant’s exercise of his
right to counsel. 2 See Lenz v. State, 183 So. 3d 1239, 1241 (Fla. 4th
DCA 2016).


1 Even though the prosecutor had earlier made similar improper arguments
without objection, those arguments do not render the challenged argument
harmless.     Rather, the unobjected to improper argument bolsters the
defendant’s position that the preserved error was harmful. See Ruiz v. State,
743 So. 2d 1, 7 (Fla. 1999) (“When the properly preserved comments are
combined with additional acts of prosecutorial overreaching set forth below, we
find that the integrity of the judicial process has been compromised and the
resulting convictions and sentences irreparably tainted.”).

2While a different judge presided over the first trial, the same individual acted
as prosecutor in both the first and second trials.

                                       5
                           Erroneous Jury Selection

   We must also reverse based on the trial court’s mistaken analysis
related to the state’s challenge of a peremptory strike of a juror by the
defense. The defense sought to exercise a backstrike on T.C., a woman.
The prosecutor asked for a gender-neutral reason, and defense counsel
stated that the woman’s juror information questionnaire provided that
she was the parent of a teenager and that she coaches flag football. The
prosecutor stated, “I believe that’s the most disingenuous reason ever
given. Flag football coach doesn’t mean anything.” The trial court stated
that there was no evidence that T.C. works with children: “[T]he problem
is . . . it could be men. I have friends who are men who play flag
football.” Based on this exchange, the trial court found defense counsel’s
proffered reason was pretextual. The court then noted that the proposed
jury at that point was composed of all men, but defense counsel pointed
out that there was one woman on the proposed jury.

   On appeal, the defendant contends that the trial court erred in finding
his proffered gender-neutral reason was pretextual. We agree.

   “[T]he Equal Protection Clause prohibits discrimination in jury
selection on the basis of gender[.]” J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 146 (1994).       The defendant’s argument relates to the
genuineness of a proffered reason for a peremptory strike—the third step
of the three-step procedure that applies when a party objects to the
exercise of a peremptory strike on the ground that it was made on a
discriminatory basis. See Melbourne v. State, 679 So. 2d 759, 764 (Fla.
1996). 3 The Supreme Court of Florida has elaborated on this third step:


3 In Melbourne, the court fashioned the following three-step procedure for
addressing challenges to peremptory strikes:

          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 (step
      1), the court must ask the proponent of the strike to explain the
      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,

                                        6
      Melbourne teaches that to assess genuineness, the trial court
      must consider all relevant circumstances surrounding the
      strike in determining whether the proffered reason for the
      strike is genuine. Melbourne, 679 So. 2d at 764 n.8. This
      Court explained in Murray v. State, 3 So. 3d 1108 (Fla.
      2009), that

         [i]n determining 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)).

      Murray, 3 So. 3d at 1120 (citations omitted).

         The proper test under Melbourne requires the trial court’s
      decision on the ultimate issue of pretext to turn on a judicial
      assessment of the credibility of the proffered reasons and the
      attorney or party proffering them, both of which “must be
      weighed in light of the circumstances of the case and the
      total course of the voir dire in question, as reflected in the
      record.” Slappy, 522 So. 2d at 22; see also Melbourne, 679


      the explanation is not a pretext, the strike will be sustained (step
      3).

Melbourne, 679 So. 2d at 764 (footnotes omitted).



                                       7
      So. 2d at 764; Young v. State, 744 So. 2d 1077, 1082 (Fla.
      4th DCA 1999) (“[I]dentifying the true nature of an attorney’s
      motive behind a peremptory strike turns primarily on an
      assessment of the attorney’s credibility.”)

Hayes v. State, 94 So. 3d 452, 462 (Fla. 2012) (alterations in original).

   Aside from the factors recited in Hayes, the trial court may consider
any relevant factor, including the “failure to examine the juror or
perfunctory examination, assuming neither the trial court nor opposing
counsel had questioned the juror.” State v. Slappy, 522 So. 2d 18, 22
(Fla. 1988), receded from on other grounds, Melbourne, 679 So. 2d at 765.
And “while the constitution does not require that the explanation be
reasonable, reasonableness is one factor that a court may consider in
assessing genuineness.” Siegel v. State, 68 So. 3d 281, 286 (Fla. 4th
DCA 2011).

   In the instant case, it is not apparent from the transcript that the trial
court considered the fundamentally core issue of whether defense
counsel’s belief that T.C. coached youth flag football and that she was a
parent to a teenager was genuine. Instead, the court focused on defense
counsel’s failure to make sure that T.C. coached children rather than
adults. The court found that defense counsel’s reason was based on “an
assumption” not supported by the record. But the record did support
defense counsel’s concern, as T.C. indicated that she was the parent of a
teenager and coached flag football. The court’s focus should have been
on the genuineness of counsel’s belief, not the reasonableness of an
assumption. See Wimberly v. State, 118 So. 3d 816, 822 (Fla. 4th DCA
2012) (finding that where prospective juror indicated initially that she
didn’t understand the word “insanity,” but later stated that she
understood the term, the state was still “entitled to maintain” its genuine
belief that she did not understand). Even if reasonableness was a
dispositive factor, defense counsel’s belief that T.C. coached youth flag
football was a reasonable belief, given that she was the parent of a
teenager and the commonly-known fact that youth sports leagues utilize
coaches, many of whom are parents.

    Further, the record reveals that the trial court’s consideration of the
relevant factor of the gender makeup of the jury was superficial. The
trial court first observed that the potential jury at that point was “all
males,” but this observation was incorrect, as pointed out to the court by
defense counsel. The court failed to consider why the group of six
potential jurors was primarily male, i.e., which strikes led to the
resulting jury. Specifically, the defendant was on trial for crimes against

                                     8
a young child, the other women who were struck by defense counsel had
young children, and defense counsel did not strike two female
prospective jurors who did not have minor children or currently work
with children. 4 We find that the trial court’s failure to engage in a
meaningful genuineness analysis necessarily amounts to reversible error.

   Based on the foregoing, we reverse and remand for a new trial. We
find the remaining issues raised by the defendant to be without merit,
unpreserved, or moot.

     Reversed and remanded for new trial.

LEVINE and KLINGENSMITH, JJ., concur.

                               *        *         *

     Not final until disposition of timely filed motion for rehearing.




4   The prosecutor exercised a peremptory strike on one of those women.

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