       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            MOSES McCRAY,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D14-907

                              [June 29, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David F. Crow, Judge; L.T. Case No. 2013CF008088AMB.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions on one count of aggravated
assault with a firearm on a law enforcement officer, three counts of
aggravated assault with a deadly weapon on a law enforcement officer, and
one count of possession of a firearm by a convicted felon. The defendant
primarily argues that, after he exhausted his peremptory strikes, the trial
court erred in denying his motion to “unstrike” the juror upon whom he
used his last peremptory strike (“Juror 2.5”), so that he could use his last
peremptory strike on another juror (“Juror 3.9”). We affirm, because, after
the defendant struck Juror 2.5, the state accepted the panel, thereby
revealing the state’s strategy to accept Juror 3.9. Allowing the defendant
to reveal the state’s strategy to accept Juror 3.9, and then allowing the
defendant to “unstrike” Juror 2.5 in order to strike Juror 3.9, would have
prejudiced the state.

   We present this opinion in three parts: (1) the voir dire and jury
selection process; (2) our analysis based on our precedent in Davis v. State,
922 So. 2d 454 (Fla. 4th DCA 2006); and (3) our recognition of a possible
conflict with McIntosh v. State, 743 So. 2d 155 (Fla. 3d DCA 1999).
               1. The Voir Dire and Jury Selection Process

   During voir dire, the following discussions occurred with Juror 3.9:

      JUROR 3.9: My name . . . . I live in Lake Worth. My
      occupation, I’m working for school district. I’m a driver. I’m
      married. My wife is (indiscernible). I do have three children.
      They are high school. I have never been served jury before.

      COURT: Is that a no?

      JUROR 3.9: No. I have never been in crime victim of any
      crime. I don’t have any friends in law enforcement. And I will
      follow the law explained. And yes, I will give fair trial to both
      sides. And no reason I cannot serve.

      ....

      STATE: [Juror 3.9], how are you?

      JUROR 3.9: Fine.

      STATE: Good. We have several folks here that have nice
      accents and I can kind of tell from some individuals having
      served on prior jury service or their answers that there was no
      issue with language. But I wanted to check with you to see
      you have a nice accent but I want to make sure are you
      understanding everything that we’re saying?

      JUROR 3.9: Yes.

      STATE: Excellent. No language problem if you were to serve
      on the jury?

      JUROR 3.9: No.

The defense did not ask Juror 3.9 any direct questions.

   During the parties’ initial round of cause challenges, the defendant did
not challenge Juror 3.9 for cause.

   During the parties’ peremptory strikes, the defendant used his last
peremptory strike on Juror 2.5. That strike put Juror 3.9 “in the box” as

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the sixth juror. The state, which had two peremptory strikes remaining,
accepted the panel, including Juror 3.9.

   The defendant then stated he wanted to challenge Juror 3.9 for cause
because he had “a serious question about [Juror 3.9’s] ability to speak
English.”

   In response, the trial court stated that Juror 3.9 gave “direct and
positive,” “appropriate[]” answers; “[h]e did not hesitate in response to any
questions;” and he appeared insulted or angered when the state
questioned his English. The court therefore denied the defendant’s cause
challenge to Juror 3.9.

  The defendant then asked for two additional preemptory strikes, after
which the following discussion occurred:

      COURT: And the reason is because I denied your cause
      challenge [to juror 3.9]?

      DEFENSE: Yes, sir.

      COURT: That would be denied.

      ....

      DEFENSE: [Judge], can we back-strike or unstrike [Juror 2.5]
      then?

      COURT: Unstrike?

      DEFENSE: Or back-strike.

      COURT: This is a first for me.

      STATE: I have never heard of an unstrike.

      COURT: It’s not a back-strike because [Juror 2.5 has] already
      been stricken.

      ....

      DEFENSE: . . . You’re right, Judge. We’ve already stricken
      [Juror 2.5].


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      COURT: I don’t know how I can unstrike a strike because then
      that messes up everybody else’s decisions on what you struck
      or so. That’s our jury. . . .

(emphasis added).

   The defendant later was convicted as charged. This appeal followed.

    The defendant primarily argues that the trial court erred in denying his
motion to “unstrike” Juror 2.5, upon whom he used his last peremptory
strike, so that he could use his last peremptory strike on Juror 3.9 instead.
In support, the defendant relies upon cases holding that a party may
exercise an unused peremptory strike at any time before the jury is sworn.
See, e.g., Arnold v. State, 755 So. 2d 696, 698 (Fla. 4th DCA 1999).

   We review the trial court’s denial of the defendant’s motion to “unstrike”
Juror 2.5 for an abuse of discretion. See McIntosh v. State, 743 So. 2d
155, 156 (Fla. 3d DCA 1999) (reviewing for an abuse of discretion a trial
court’s decision on a party’s motion to “unstrike” a juror upon whom the
party earlier used a peremptory strike).

        2. Our Analysis Based on Our Precedent in Davis v. State

    The defendant’s argument lacks merit, pursuant to our holding in Davis
v. State, 922 So. 2d 454 (Fla. 4th DCA 2006). In Davis, we described the
facts as follows:

          . . . During jury selection, the state used six of its ten
      peremptory strikes. The defense used all ten of its peremptory
      strikes. Thereafter, the jury panel and an alternate were
      accepted by both sides. Defense counsel then told the [trial]
      court that [the defendant] wished to withdraw a peremptory
      [strike] made on one juror and use it to strike another. The
      state objected and the trial court denied the request. The jury
      was then sworn.

         The [trial] court’s rationale in denying the “[unstrike]”
      request was that the prosecutor’s strategy in utilizing
      peremptory [strikes] was based partially on the manner in
      which the defense exercised its peremptory [strikes]. The
      court, therefore, concluded that allowing the defendant to
      withdraw a [peremptory strike] so late in the process would
      prejudice the state.


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Id. at 455 (footnote omitted). We affirmed, reasoning as follows:

         Although it is clearly reversible error to deny a challenge to
      a juror when the defendant has not exhausted all of his
      peremptory challenges prior to the jury’s being sworn, that is
      not the case where, as here, a party has exhausted all of its
      peremptory challenges. Under the facts of this case, we
      cannot say that the trial court erred in denying [the
      defendant’s] request to withdraw a peremptory [strike] and
      then backstrike a previously accepted juror.

Id. (internal citation omitted).

    Similar to Davis, we cannot say here that the trial court erred in
denying the defendant’s motion to “unstrike” Juror 2.5, upon whom he
used his last peremptory strike, so that he could use his last peremptory
strike on Juror 3.9. The reason is because, as in Davis, after the defendant
used his last peremptory strike on Juror 2.5, the state accepted the panel,
thereby revealing the state’s strategy to accept Juror 3.9. Allowing the
defendant to reveal the state’s strategy to accept Juror 3.9, and then
allowing the defendant to “unstrike” Juror 2.5 in order to strike Juror 3.9,
would have prejudiced the state.

    The cases upon which the defendant relies are distinguishable because
those cases hold that a party may exercise an unused peremptory strike
at any time before the jury is sworn. See, e.g., Arnold, 755 So. 2d at 698.
Here, the defendant already had exhausted his peremptory strikes, and
the state already had accepted the panel, when the defendant moved to
“unstrike” Juror 2.5, upon whom he used his last peremptory strike, so
that he could use his last peremptory strike on Juror 3.9 instead. The
trial court’s denial of this motion did not prejudice the defendant when he
already had exhausted his peremptory strikes. Cf. Hunter v. State, 660 So.
2d 244 (Fla.1995) (although trial court erred when it indicated that it
would prevent defense counsel from exercising peremptory backstrikes
once the entire jury panel was formed, defendant was unable to
demonstrate any prejudice because defense counsel had exhausted his
allotted peremptory challenges when the opportunity to backstrike arose).




                                     5
                3. Possible Conflict with McIntosh v. State

   We note, however, that our holdings in this case and Davis may conflict
with our sister court’s holding in McIntosh v. State, 743 So. 2d 155 (Fla.
3d DCA 1999), regarding the circumstances by which a party may or may
not “unstrike” a juror.

    In McIntosh, at the conclusion of jury selection, the venire panel had
been exhausted, but only eleven jurors had been selected for the twelve-
person jury. Id. at 156. The state indicated that it was willing to withdraw
its previously used peremptory strike against juror Blanco. Id. The
defendant objected to this procedure, saying that if the state kept juror
Blanco on the jury initially, then some of the defendant’s decisions after
that point might have changed. Id. The defendant then requested an
additional peremptory strike, not to use against juror Blanco, but instead
to use against a different juror, juror Rodriguez. Id. The defendant
indicated that he had accepted juror Rodriguez “given the contents of the
panel at that time. The contents of the panel [have] changed.” Id. The
trial court denied the defendant’s request for the additional peremptory
strike. Id.

    On appeal, the defendant contended that the trial court erred by
allowing the state to withdraw the peremptory strike it had used on juror
Blanco, with the result that juror Blanco served on the jury. Id. at 156.
Our sister court affirmed, reasoning as follows:

      We find no abuse of discretion in the trial court’s seating of
      juror Blanco over defense objection. If defense counsel
      predicated the exercise of at least some of the peremptory
      challenges on the theory that juror Blanco, having been stricken
      by the State, would not serve on the jury, then it would be
      understandable if the defense had requested an additional
      peremptory challenge to strike juror Blanco.            In that
      circumstance, we would have a different case. Juror Blanco
      was, however, acceptable to the defense and the request
      instead was to strike a different juror. The claim of harm here
      was entirely speculative and the objection was properly
      overruled.

Id. (emphasis added).

   It could be argued that our holdings in this case and Davis do not
conflict with McIntosh, because the circumstances are different. That is,
in this case and Davis, the defendant already had exhausted his

                                     6
peremptory strikes, and the state already had accepted the panel, when
the defendant moved to “unstrike” a juror upon whom he used his last
peremptory strike, so that he could use his last peremptory strike on
another juror instead. However, in McIntosh, the state merely sought to
“backfill” an otherwise incomplete jury by moving to “unstrike” juror
Blanco, whom the state had stricken but who was acceptable to the
defense, without seeking to use that peremptory strike on another juror.

   On the other hand, it could be argued that our holdings in this case
and Davis may conflict with McIntosh, simply because of the different
results. That is, we have held, under the circumstances presented to us,
that the courts did not abuse their discretion in denying a motion to
“unstrike” a juror.        However, McIntosh held, under different
circumstances, that a court did not abuse its discretion in granting a
motion to “unstrike” a juror. Thus, to the extent the results of this case
and Davis may be perceived to conflict with McIntosh, we certify conflict.

                                      Conclusion

   While we recognize that when a defendant has peremptory strikes
remaining, “the courts of this state have uniformly held . . . that a
defendant has the right to retract his acceptance and object to a juror at
any time before the jur[y] is sworn,” Dobek v. Ans, 475 So. 2d 1266, 1267
(Fla. 4th DCA 1985) (emphasis added), we are aware of no authority
holding that a party, who has exhausted their peremptory strikes, has the
right to retract a peremptory strike in order to use a peremptory strike on
another juror after the other party has revealed their jury selection strategy
but before the jury is sworn. To recognize such a holding would disrupt
what should be an otherwise orderly jury selection process. We affirm.

    Affirmed; conflict certified. 1

CIKLIN, C.J., and WARNER, J., concur.

                                *         *        *

    Not final until disposition of timely filed motion for rehearing.




1   We also affirm without discussion as to the defendant’s second argument that
the trial court erred by allowing evidence of collateral crimes to become a feature
of the trial.

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