        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        DONALD LEE CASSADAY,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D18-3066

                            [January 15, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 50-2016-CF-
006694-AXXX-MB.

  Gregory Salnick of the Law Offices of Salnick & Fuchs, P.A., West Palm
Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, C.J.

    Appellant was convicted of sexual battery on a helpless person,
pursuant to section 794.011(4)(b), Florida Statutes. Appellant argues that
the trial court abused its discretion by limiting the time for questioning
during voir dire. The trial court initially gave each side 45 minutes, but
allowed appellant to continue questioning prospective jurors for closer to
70 minutes, and then gave appellant an additional 5 minutes after
appellant requested more time, for a total of 75 minutes. We find that
under the circumstances of this case, the 75 minutes given to appellant
was not an abuse of discretion. We also reaffirm this court’s position that
there is no mathematical formula that determines how much time the trial
court should allocate for voir dire and reiterate that this determination is
made on a case-by-case basis. Thus, we find that the time given for voir
dire in this case was not an abuse of the trial court’s discretion and affirm.
We also find the other issue to be without merit and we affirm that issue
without further discussion.

   The victim attended a funeral reception where the attendees, including
the victim, consumed alcoholic drinks. After the funeral reception, a group
from the reception, including the victim’s son and appellant, went to the
victim’s home. The victim was put to bed due to her intoxicated state.
Later the victim’s son went to check on the victim and found appellant in
the victim’s room. The victim’s son saw appellant with his pants half
down, trying to have sex with the victim. The victim remained unconscious
throughout. The victim’s son told appellant to get out, and appellant left
the house. The victim’s son followed appellant and punched him when he
caught up to him. Appellant then jumped a fence and ran away. The
victim did not remember being assaulted.

    Law enforcement then interviewed appellant and asked him the
following:

      DETECTIVE VAUGHAN: You had a little too much to drink
      and had a lapse of judgment?

      DONALD CASSADAY: That is what happened.

         ....

      DETECTIVE VAUGHAN: That’s the way it happened? You just
      said “that’s what happened.” So what happened?

      DONALD CASSADAY: That is—that is what happened.

      DETECTIVE VAUGHAN: What; that you had a lapse of
      judgment?

      DONALD CASSADAY: Yes.

      DETECTIVE VAUGHAN: So tell us what happened.

      DONALD CASSADAY: Exactly. I went in there and uhm—I
      tried to have sex with her and that wasn’t happening.

   Detectives interviewed appellant a second time where he spoke about
the physical interaction he had with the victim with greater specificity.

   Before the trial, the trial court informed the parties that “[t]he Court
will conduct general questioning during jury selection and the parties will
have 45 minutes for additional questioning.” Defense counsel filed an
objection stating that the defense needed more time to question the jurors
due to recent increased media coverage of sexual battery cases in general

                                    2
as well as appellant’s intent to offer a false confession defense. Defense
counsel requested 2 hours instead of 45 minutes to question the 40 jurors.
The trial court denied the request.

   At the outset of voir dire, the trial court explained to the prospective
jurors basic concepts including presumption of innocence, witness
credibility, burden of proof, and a defendant’s right not to testify. The trial
court also asked the prospective jurors whether they had been on juries
before and whether they could be fair jurors.

   The parties then questioned the prospective jurors. When defense
counsel asked a prospective juror about her ability to judge the credibility
of witnesses, the trial court sustained the state’s objection to the defense
pre-trying the case. Defense counsel also asked the prospective jurors
whether they thought law enforcement could make mistakes, whether
police would plant or mishandle evidence, whether people could be falsely
accused of crimes, and finally, whether they believed people might confess
to crimes they did not commit. The state made another objection to the
defense pre-trying the case when defense counsel asked a prospective
juror whether she could accept a false confession defense. The trial court
overruled the objection. The trial court then clarified that defense counsel
could ask if the potential jurors would consider a false confession defense,
but could not tell the prospective jurors the reasons that someone would
give a false confession.

    Defense counsel continued by asking the prospective jurors whether
they thought different factors would cause someone to make a false
confession and whether law enforcement officers should be allowed to lie
in order to get a confession. Defense counsel also asked how the
prospective jurors would balance the credibility of civilian witnesses
against law enforcement witnesses. Defense counsel asked whether the
prospective jurors had ever been falsely accused and whether they could
fairly evaluate a false confession defense.

    At this juncture, defense counsel asked for another 20 minutes.
Defense counsel claimed that he needed the additional time to discuss
whether individual jurors believed that officers commit misconduct and
how they would weigh the credibility of law enforcement witnesses. The
trial court thought that defense counsel had already covered those areas
and told defense counsel that he had “asked general questions of all of
them” already and that the jurors had raised their hands accordingly.
Defense counsel then said that he wanted to question individual jurors
about media coverage and whether the jurors were ever falsely accused.
Once again, the trial court reminded defense counsel that he had already

                                      3
asked about these topics and no jurors had raised their hands. The trial
court told defense counsel, “You’ve spent your entire jury selection on what
the Court feels is pretrying your case; you have not hit any of the
constitutional things that one normally does in jury selection.”

   Despite that, the trial court gave the defense another 5 minutes for voir
dire so that defense counsel could ask the prospective jurors about the
burden of proof and how they felt about whether appellant testified.
Defense counsel objected again to the time limit. This 5 minutes was in
addition to the nearly 70 minutes already utilized by the defense. Thus,
the original 45 minutes had expanded to approximately 75 minutes to
question the prospective jurors.

   After the jury selection, defense objected again to the “time limitations”
and refused to accept the jury panel. The trial court seated the panel over
defense counsel’s objection and stated the following:

         All right. And noting the objection for the record. I want
      the record to also reflect that this Court gave previous notice
      that there would be a time limitation of 45 minutes on each
      side. The Court did see the objection and we discussed it this
      morning where Defense counsel asked for an additional 2
      hours; that request was denied.

         However, we did spend over an hour and 20—almost 25
      minutes on jury selection. I find that the entire time that the
      Defense did the questioning that you spent asking questions
      primarily intended to plant seeds about your theory of the
      case. A lot of the questions were pre-trying the case which is
      not the purpose of voir dire.

         It should be noted that the Court exercised its discretion
      to allow for my [sic] questioning than originally allotted based
      on the nature of some of the responses.

         At one point I even cautioned that I believed that some
      questions were designed to pre-try, but Defense chose to use
      their allotted time to continue that course of questioning.
      There was no objections by State, so that questioning was
      permitted.

        The Court also gave you a brief extension to cover any other
      important grounds. As such; the time allotted was reasonable


                                     4
      and I will seat this panel over Defense objection. However, it
      will be objected to for the purposes of the appellate record.

   The jury selection was then completed and the jurors were sworn in.
No additional requests for time were made by the defense at this time.

   The jury found appellant guilty as charged for sexual battery on a
helpless person. Appellant appeals this conviction.

   We review the trial court’s imposition of a time limit on voir dire under
the abuse of discretion standard. Hopkins v. State, 223 So. 3d 285, 286
(Fla. 4th DCA 2017).

   Appellant argues that the trial court’s time limit on voir dire was error
because defense counsel had remaining issues to discuss with the
prospective jurors. The state argues that appellant did not preserve his
objection to the time limitation and, alternatively, that the time limits were
not unreasonable under the circumstances. We find appellant preserved
this issue, as even the trial court noted that appellant “objected . . . for the
purposes of the appellate record.”

    “Florida Rule of Criminal Procedure 3.300(b) affords the parties a
reasonable voir dire examination of prospective jurors.” Hopkins, 223 So.
3d at 286. The operative consideration is what is reasonable and who is
in the best position to evaluate what is a reasonable voir dire examination
in order “to obtain a fair and impartial jury to try the issues in the cause.”
Id. (citation and quotation marks omitted). The trial court invariably “is in
the best position to evaluate what is going on in the jury selection process,”
see Hoskins v. State, 965 So. 2d 1, 11 (Fla. 2007), and has “considerable
discretion in controlling the time allotted for voir dire, as well as the extent
of counsel’s questions.” Perry v. State, 675 So. 2d 976, 979 (Fla. 4th DCA
1996).

   In determining whether the trial court abused its discretion, we
consider several points as stated by this court in Thomany v. State, 252
So. 3d 256 (Fla. 4th DCA 2018). Initially, “counsel’s time for voir dire is
not unlimited.” Id. at 257. The rule allowing for counsel’s examination of
jurors affords a “reasonable voir dire examination.” Id. (citation omitted).
Unlimited is not reasonable. The trial court is in the best position to
determine if defense counsel’s examination “spent an extraordinary
amount of time asking questions not reasonably intended to elicit useful
information in deciding whether to exercise cause or peremptory
challenges.” Id.


                                       5
   Further, the court in Thomany was concerned that counsel’s questions
“were intended to plant seeds in the jury’s mind about the defendant’s
theory of the case, to be argued later during trial.” Id. Such were the
circumstances in this case. Here, defense counsel spent much of his time
“pre-trying” the case for argument later in the trial. Defense counsel
argued about false confessions, law enforcement misconduct, and
ultimately law enforcement coercing false confessions. As Thomany
correctly stated, “[s]uch ‘pre-trying’ of the case is not the purpose of voir
dire, nor is it an appropriate use of the amount of time provided for voir
dire.” Id. This case is unlike Strachan v. State, 279 So. 3d 1231, 1236
(Fla. 4th DCA 2019), where the defense counsel did not primarily use voir
dire to “pre-try” the case, but rather used the time allotted “very wisely” to
seat a fair and objective jury.

   However, even where defense counsel does not make “wise” use of his
time, the trial court ought not see that as justification for “inflexibility in
the amount of time provided for voir dire” or as a “wise path” to follow.
Thomany, 252 So. 3d at 257. Thomany suggested “[a] brief extension of
time” as preferable to the many hours spent on an appeal and additional
days spent on a new trial if the case is reversed. Id. In the present case,
the trial court did grant a “brief extension,” albeit only 5 minutes.
However, this 5 minute allotment was in addition to the extension of time
from the original 45 minutes to nearly 70 minutes. See Anderson v. State,
739 So. 2d 642, 643 (Fla. 4th DCA 1999) (finding that sufficient voir dire
time was given where the initial grant was for 30 minutes and an
additional 5 minutes was requested and granted).

    Finally, Thomany states that “no mathematical formula exists, nor
should a mathematical formula exist, for the amount of time provided for
voir dire.” 252 So. 3d at 257. We agree, and reiterate the Thomany
standard that there is no minimum time required in considering whether
there was sufficient time to pick a jury. “[W]e consider the nature of the
case and the reasonableness of the use, by the attorneys, of the time
allotted.” Anderson, 739 So. 2d at 644 (citation and quotation marks
omitted); see also Watson v. State, 693 So. 2d 69, 70 (Fla. 2d DCA 1997)
(holding that the trial court did not abuse its discretion in refusing to give
even more time, after awarding 8 additional minutes already, because “the
proffered questions were either of minimal significance, covered by the
general jury instructions, or covered during the state’s voir dire
examination”).

   In conclusion, although we recognize that the number of prospective
jurors and the time allotted by the trial court are relevant factors, we
determine whether the trial court abused its discretion on a “case-by-case

                                      6
basis” and not by any hypothetical mathematical formula. Watson, 693
So. 2d at 70; see also Hopkins, 223 So. 3d at 287 (illustrating the varying
factors that a court must weigh in each case, such as the size of the jury
pool and the court’s refusal to grant any additional time). Having
considered the nature of the case, the use of the allotted time by defense
counsel, and the extensions of time given by the trial court during voir
dire, we find that the trial court did not abuse its discretion when it gave
counsel approximately 70 minutes and then an additional 5 minutes
instead of the 2 hours requested by defense counsel. We affirm.

   Affirmed.

WARNER, J., and PHILLIPS, CAROL-LISA, Associate Judge, concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     7
