         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


TRAVELERS HOME AND MARINE
INSURANCE COMPANY,

              Appellants,

 v.                                                     Case No. 5D16-3158
                                                             and 5D16-4214
MICHAEL J. GALLO AND
TYLER R. BROCK,

              Appellees.

________________________________/

Opinion filed June 1, 2018

Appeal from the Circuit Court
for Brevard County,
George W. Maxwell III, Judge.

Jack R. Reiter, Jordan S. Kosches,
and Tiffany M. Walters, of GrayRobinson,
P.A., Miami, for Appellants.

Christopher V. Carlyle, of The Carlyle
Appellate Law Firm, Orlando, and O.
John Alpizar and Andrew B. Pickett,
of Alpizar Law, LLC, Palm Bay,
for Appellee, Michael Gallo.

No Appearance for Appellee,
Tyler R. Brock.

LAMBERT, J.

       In these consolidated appeals, Travelers Home and Marine Insurance Company

(“Travelers”) challenges the final judgment entered against it and in favor of the insured,
Michael J. Gallo (“Gallo”), after the jury returned a verdict for Gallo on his

uninsured/underinsured motorist claim against Travelers. Travelers also contests the

separate final judgments awarding Gallo attorney’s fees under section 768.79, Florida

Statutes (2014), and Florida Rule of Civil Procedure 1.442 and taxing court costs. We

find merit in one of the four arguments raised by Travelers. Concluding that the trial court

erred in disallowing one of Travelers’ peremptory challenges, we reverse and remand for

a new trial.

       A peremptory challenge is one of the primary tools by which a party removes an

unfavorable juror from the jury panel. Spencer v. State, 238 So. 3d 708, 711 (Fla. 2018)

(citing Hayes v. State, 94 So. 3d 452, 460 (Fla. 2012)).          Traditionally, peremptory

challenges, which are limited in number, have been exercised “according to a party’s

unfettered discretion,” id. (quoting Hayes, 94 So. 3d at 459), with the only limitation being

that they not be used to purposely discriminate against members of a distinctive group by

excluding them from jury service. Id. (citing Batson v. Kentucky, 476 U.S. 79, 97 (1986)).

To provide some clarity and direction to trial courts when faced with the possibility that a

party is exercising a peremptory challenge in a purposely discriminatory manner, the

Florida Supreme Court established the following three-step process and analysis to be

applied under such circumstances (e.g., alleged racial discrimination):

                        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



                                              2
              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 the process, the burden of
              persuasion never leaves the opponent of the strike to prove
              purposeful racial discrimination.

Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (footnotes omitted).

       In the present case, following voir dire of the venire, Travelers used a peremptory

challenge to strike an African-American female as a juror. Consistent with Step 1 of

Melbourne, Gallo’s trial counsel timely objected, placed on the record that the

venireperson is a member of a distinct racial group, and requested a race-neutral reason

for the strike. At that point, in an effort to comply with Step 2, Travelers’ counsel explained

that based upon his personal observations of the prospective juror, he was striking her

because she was inattentive and did not appear engaged in the jury selection process,

thus giving counsel concern that if seated as a juror, this individual would not be “focused,”

“pay attention,” and “actually consider the evidence.” At that point, and without requesting

a response from Gallo’s counsel, the trial court determined that Travelers’ explanation or

basis for the strike was “legally insufficient.” This, however, was incorrect because much

like verbal responses to questioning, a juror’s lack of interest, inattentiveness, or other

nonverbal behavior can constitute a racially neutral reason (Step 2) for a peremptory

strike. Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003).

       Immediately after the trial court found the strike to be legally insufficient, Gallo’s

counsel placed on the record that his observations of this juror “were completely opposite

of [Travelers’] counsel.” This is not uncommon and may simply illustrate that “[a] person’s

demeanor, subjective as it is, is subject to more than one interpretation.” See People v.



                                              3
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


TRAVELERS HOME AND MARINE
INSURANCE COMPANY,

              Appellants,

 v.                                                     Case No. 5D16-3158
                                                             and 5D16-4214
MICHAEL J. GALLO AND
TYLER R. BROCK,

              Appellees.

________________________________/

Opinion filed June 1, 2018

Appeal from the Circuit Court
for Brevard County,
George W. Maxwell III, Judge.

Jack R. Reiter, Jordan S. Kosches,
and Tiffany M. Walters, of GrayRobinson,
P.A., Miami, for Appellants.

Christopher V. Carlyle, of The Carlyle
Appellate Law Firm, Orlando, and O.
John Alpizar and Andrew B. Pickett,
of Alpizar Law, LLC, Palm Bay,
for Appellee, Michael Gallo.

No Appearance for Appellee,
Tyler R. Brock.

LAMBERT, J.

       In these consolidated appeals, Travelers Home and Marine Insurance Company

(“Travelers”) challenges the final judgment entered against it and in favor of the insured,
court reiterated that it did not find counsel’s explanation for the strike to be “disingenuous”

and that it would not “disparage an attorney [who] attempts to make a strike on a visibly

less than active participant in the [jury selection] process.” The trial court nevertheless

reaffirmed its ruling that Travelers’ reason for striking the juror was legally insufficient,

concluding that a venireperson appearing to have an “introverted personality” is not a

sufficient race-neutral reason for a peremptory challenge. The jury was sworn shortly

thereafter, with the individual remaining on the jury.

       The following trial day, before opening statements, the court and counsel again

discussed this juror. The court first confirmed that the day before, and prior to the jury

being sworn, it never reached Step 3 of the Melbourne analysis as to whether the reason

offered by Travelers for striking this juror was genuine. The court again recognized that

Travelers had a “bona fide”1 belief that the juror was not engaged, but it found that to be

“irrelevant” to evaluating whether it was a race-neutral reason for the strike. The court

then offered that it never saw the juror “fall asleep” 2 and did not see the juror exhibit a

“lack of attention.”    Additionally, although Travelers never moved to strike the juror

because she was “introverted,” the court also concluded that Travelers’ striking of an

introverted person from a jury is neither genuine nor relevant and is a “completely deficient

race-neutral reason” for the strike.

       We conclude that the trial court misapplied and conflated the Melbourne analysis

and thus erred in disallowing the strike. First, we begin with the premise and reminder




       1  Black’s Law Dictionary defines “bona fide” as “1. Made in good faith; without
fraud or deceit. 2. Sincere; genuine.” Bona fide, Black’s Law Dictionary (10th ed. 2014).

       2   Travelers never asserted that this juror fell asleep during voir dire.

                                                5
that a peremptory challenge is presumed to be exercised in a nondiscriminatory manner

and that the burden of persuasion never leaves the opponent of the strike to prove

purposeful racial discrimination. Melbourne, 679 So. 2d at 764. Here, the trial court never

altered its earlier observation, consistent with that of Travelers’ counsel, that the juror was

not particularly engaged. Under Dorsey, this satisfied Step 2 under Melbourne and

established a presumption that Travelers’ use of its peremptory challenge on this juror

was genuine. 868 So. 2d at 1199.

       This determination triggered the trial court’s obligation to undertake a Step 3

“genuineness” analysis prior to disallowing the juror strike and swearing the jury. The

court admitted that it did not do this nor did it find any reason to do so because it concluded

that the race-neutral reason proffered by Travelers for the strike was “legally insufficient.”

Moreover, a Step 3 “genuineness” analysis under Melbourne focuses not only on the

proffered reason for the strike but also on the credibility of the attorney or party proffering

the reason. See 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.”). Here, the trial court repeatedly recognized that

Travelers’ counsel’s reason and explanation for the strike was genuine. Finally, the

presumption that Travelers’ peremptory challenge was genuine could have been rebutted

by other relevant factors such as “the racial makeup of the venire; prior strikes exercised

against the same racial group; a strike based on a reason equally applicable to an

unchallenged venireperson; or singling out the venireperson for special treatment.” See

Rodriguez v. State, 753 So. 2d 29, 40 (Fla. 2000) (citing Melbourne, 679 So. 2d at 764

n.8). However, there is no indication in our record that the trial court either expressly or




                                              6
impliedly undertook this analysis prior to disallowing this strike or that Gallo, as the

opponent of the strike, separately made this argument.

      Accordingly, we reverse and remand for a new trial. See Hayes, 94 So. 3d at 461

(“[T]he 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.”).      Lastly, having reversed the

underlying judgment in favor of Gallo, we also reverse the separate final judgments

awarding him attorney’s fees and court costs. See Marty v. Bainter, 727 So. 2d 1124,

1125 (Fla. 1st DCA 1999) (“[A]n award of attorney’s fees and costs predicated on a

reversed or vacated final judgment also must be reversed.”).

      REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.




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