               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT

AARON RHASHAUD IVY,                            )
DOC# W01913,                                   )
                                               )
              Appellant,                       )
                                               )
v.                                             )      Case No. 2D14-289
                                               )
STATE OF FLORIDA,                              )
                                               )
              Appellee.                        )
                                               )

Opinion filed March 18, 2016.

Appeal from the Circuit Court for Hendry
County; James D. Sloan, Judge.

Howard L. Dimmig, II, Public Defender,
and Deana K. Marshall, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bilal A. Faruqui, Assistant
Attorney General, Tampa, for Appellee.


ALTENBERND, Judge.

              Aaron Rhashaud Ivy appeals his judgments and sentences for robbery

with a firearm, two counts of false imprisonment with a firearm, grand theft, and felon in

possession of a firearm. We affirm, writing only to discuss his claim that the trial court

did not conduct an adequate step 3 genuineness inquiry under Melbourne v. State, 679

So. 2d 759 (Fla. 1996), when he opposed the State's peremptory challenge of an
African-American venireperson. Relying on our decision in Spencer v. State, No. 2D14-

316 (Fla. 2d DCA Mar. 18, 2016), we conclude that Mr. Ivy did not create a record

preserving and establishing that he is entitled to a new trial due to the trial court's grant

of the State's peremptory challenge. Accordingly, we affirm.

                                       I. THE FACTS

              Mr. Ivy, along with two codefendants, robbed a jewelry store during

business hours on August 6, 2010. The robbery was recorded on surveillance cameras.

Mr. Ivy sustained a significant cut on his leg when he jumped over a glass counter to

assault one of two store employees who were present, causing the glass to break. He

cleaned his wound in the store's bathroom. He and his codefendant restrained the two

employees in the bathroom by taping their hands together. The police arrived while the

robbery was in progress because the police station was just around the corner from the

store. The police arrested the three perpetrators as they fled the scene. Both

employees identified Mr. Ivy as the robber who had carried the handgun. Thus, the

evidence against Mr. Ivy in this case was very strong.

              The State charged all three defendants in a single information, charging

Mr. Ivy with two counts of kidnapping with a firearm, possession of a firearm by a

convicted felon, first-degree grand theft, and armed robbery. The three defendants

were tried together. Mr. Ivy was convicted on all five counts, but the jury returned lesser

convictions of false imprisonment instead of kidnapping, with special findings that Mr.

Ivy possessed a firearm. He was sentenced as a habitual felony offender to concurrent

sentences, the longest of which is forty-five years in prison for the armed robbery.

                                   II. JURY SELECTION




                                             -2-
              The transcript of jury selection in this case reflects a process different from

that in Spencer. The trial occurred in a rural county where many people know one

another. Several members of the venire were friends or relatives. The judge

recognized at the inception of the process that some members of the venire had

pending criminal cases. Some disclosed that they had relatives represented by the

public defender or that they knew the victim or witnesses in this case. The court

reporter identified each member of the venire by name in the transcript. In an era when

neighbors in large metropolitan cities do not even know one another’s names, the

transcript is a refreshing reminder of the value of community. But it is also an

environment in which jury selection is perhaps more casual.

              During jury selection, one of the venirepersons revealed that she had a

son-in-law who had once been a law enforcement officer but was no longer. Neither the

State nor the defense inquired further on this subject. After a large number of

venirepersons were stricken for cause, the State and the defense attorneys exercised

peremptory challenges and initially reached an agreement on the first six jurors. As

they were about to select the alternates, the State decided to exercise a back strike.

The record reflects the following:

                     THE COURT: I thought you accepted the panel?

                     [ASSISTANT STATE ATTORNEY]: State of Florida,
              any party can use back strikes or peremptories until such
              time as a jury panel is sworn. That's Florida rules of criminal
              procedure[].

                     THE COURT: What do you want?

                    [ASSISTANT STATE ATTORNEY]: State of Florida
              would strike [venireperson] 126 . . . .




                                            -3-
                     [COUNSEL FOR MR. IVY]: We would like a race-
              neutral1 reason for the peremptory. [Venireperson 126] is an
              African American juror.

                     [ASSISTANT STATE ATTORNEY]: Her son was
              previously a member of law enforcement. For that reason
              the State would move to strike her for peremptory.

                     [COUNSEL FOR CODEFENDANT ONE]: There's no
              indication that she said she would be less likely to believe
              the testimony of a law enforcement officer.

                     [ASSISTANT STATE ATTORNEY]: That's not one of
              the requirements of the race-neutral reason.

                     THE COURT: It's just that, to be race neutral.

                      [COUNSEL FOR MR. IVY]: It has to be genuinely
              race neutral. And the fact that a juror has a relative who was
              a police officer seems to be good reason for the defense to
              get rid of her, but not the State.

                     THE COURT: Any other reason you know of you can
              provide?

                    [ASSISTANT STATE ATTORNEY]: If it's good for
              defense counsel to use as a race-neutral reason, as
              [counsel for Mr. Ivy] just argued, it would be a reason that
              would be valid for the State of Florida as well.

                     [COUNSEL FOR CODEFENDANT ONE]: Just for the
              record, on behalf of [codefendant 1] we object and ask for a
              race-neutral reason for the record.

                     [COUNSEL FOR CODEFENDANT TWO]: We join in.

                     THE COURT: Understood. However, I think the State
              has argued adequate[ly] its race-neutral reason. If it's good
              for one side then it's good—

                      [COUNSEL FOR MR. IVY]: It would make sense I use
              it obviously.



              1The court reporter used the word "res" rather than "race" in this portion of
the transcript. We have substituted the correct word throughout.


                                           -4-
                    THE COURT: Who said it has to make sense?

                    [COUNSEL FOR MR. IVY]: Genuineness.

                    THE COURT: It means if we look at it on its face, if
             that would be a race-neutral reason for exercising, just
             because it might make more sense for one side than the
             other does not remove it from being race neutral. I note your
             objection for the record, I'm going to allow it—

                    [COUNSEL FOR MR. IVY]: Thank you, judge.

                    THE COURT: (Continuing) —as race neutral. . . .

             Prior to this exercise of a peremptory challenge, three other potential

jurors who had connections to law enforcement had been dismissed. One had been

dismissed for cause and the other two were peremptorily stricken by a defendant. At

the end of the selection process when accepting the jury, Mr. Ivy's attorney made a

proper Joiner objection concerning these two peremptory challenges. See Joiner v.

State, 618 So. 2d 174 (Fla. 1993).

              III. APPLYING THE SPENCER ANALYSIS IN THIS CASE

             We will not repeat the legal discussion contained in sections III through V

of Spencer. In section IV of that opinion, we described each step of the three-step

procedure established in Melbourne2 and suggested the components necessary to

accomplish those steps. See Spencer, slip. op. at 8-10. Applying that analysis to the

State's peremptory challenge of venireperson 126 in this case, the trial court adequately

resolved the questions required for step 1 and properly began step 2.

             When Mr. Ivy's counsel asked the State for a race-neutral reason, the

State explained that venireperson 126 had a son-in-law who had previously been a law



             2Melbourne   v. State, 679 So. 2d 759, 763-65 (Fla. 1996).


                                          -5-
enforcement officer. Counsel for one of Mr. Ivy's codefendants responded, but only to

suggest that venireperson 126 did not indicate that she was less likely to believe a law

enforcement officer. That response seems directed at the issue of genuineness and not

facial race neutrality. The State immediately pointed this out, responding "[t]hat's not

one of the requirements of the race-neutral reason." The court echoed this by stating

that "[i]t's just that, to be race neutral."

               Mr. Ivy's attorney then argued that the reason must be "genuinely race

neutral," and suggested that the circumstance of a venireperson having a family

member that had been a law enforcement officer seemed to be a valid reason for a

peremptory challenge by a defendant but not by the State. Mr. Ivy's counsel thus

appears to have been moving on to step 3 by suggesting that even if a proffered reason

is facially race neutral, it must be "genuinely" race neutral. But he did not make this

explicit, and the trial court does not appear to have understood that Mr. Ivy's counsel

had moved on to step 3. Instead, the trial court remained at step 2 and asked why a

race-neutral reason had "to make sense." Instead of clarifying the confusion, explaining

to the trial court that there is a third step in Melbourne, or objecting to the State's facially

race-neutral reason as a pretext, Mr. Ivy's counsel simply responded: "Genuineness."

Apparently the trial court still did not understand that it needed to make a separate

determination on the issue of pretext, and it allowed the peremptory challenge "as race

neutral." Thus, the trial court never made a finding on whether the facially race-neutral

reason was pretextual.

               We conclude that the word "genuineness" with nothing more is not an

adequate objection informing the trial court that it must make two separate




                                               -6-
determinations, facial neutrality and genuineness, and not merely one. Perhaps more

critically, no defense attorney explained or even asked to explain the "circumstances"

discussed in Hayes v. State, 94 So. 3d 452, 461-62 (Fla. 2012), and Murray v. State, 3

So. 3d 1108, 1120 (Fla. 2009), that might support a determination that the assistant

state attorney was using the stated neutral reason when her true reason involved

impermissible discrimination. Most of the components required for a proper step 2 and

step 3 Melbourne hearing as described in Spencer simply did not take place in this

case, but the trial court did not prevent those steps from occurring. After the trial court

responded to defense counsel's word "genuineness" with a ruling that was clearly on

race neutrality, defense counsel merely responded, "Thank you, judge."

              Because the trial court never actually reached the issue of genuineness,

the assistant state attorney was never asked to respond to the defense attorneys'

argument that only defendants can use peremptory challenges on venirepersons whose

relatives are former law enforcement officers or to any claim that she was being

disingenuous in asking for this challenge. We do not think that Mr. Ivy, as the opponent

of the peremptory challenge, met his burden of persuasion to overcome the

presumption that the State's proffered reason was genuine or that its challenge was

proper. See Hayes, 94 So. 3d at 461 (citing Melbourne, 679 So. 2d at 764). This is not

a case in which it is difficult to understand what the response would have been. The

circumstances surrounding the son-in-law's exit from a law enforcement career were

unknown. Those circumstances could possibly have caused venireperson 126 to feel

strongly against law enforcement. Any experienced trial attorney would understand that

asking about those circumstances in open court in front of the entire venire involved




                                            -7-
risks and could be embarrassing to the challenged venireperson. A decision to forego

the questions and simply use a peremptory challenge on this venireperson for this

reason is both race neutral and arguably a sensible trial strategy.

              We are less certain whether the holding in Hayes may require a reversal

under the facts in this case as compared to the facts in Spencer. But the three defense

attorneys did not provide the trial court with adequate notice that it was not following the

decision-making process necessary for a Melbourne hearing. For the reasons

explained in Spencer, we conclude that Mr. Ivy did not adequately preserve a

Melbourne issue in this case and cannot demonstrate on this record that the trial court

abused its discretion or clearly erred in allowing the strike. We find no reversible error

in the trial court's decision to permit the State to exercise a peremptory challenge of

venireperson 126.

              In Spencer, we expressed concern that our analysis may conflict with the

First District's decision in Simmons v. State, 940 So. 2d 580 (Fla. 1st DCA 2006). In

Simmons, the State exercised peremptory challenges on several African-American

members of the venire. Id. at 581. When defense counsel asked for a race-neutral

reason for one of them, the State responded that the venireperson's husband was

currently a law enforcement officer. Id. The subsequent objection made by defense

counsel and the ruling by the trial court in that case were almost identical to what

occurred in this case. Defense counsel in Simmons argued that the State's reason

might be good for defense counsel but not for the State, and the court ruled: "I will allow

the challenge. That is a race-neutral reason. Whether or not we view it favorable for

the State or favorable for the Defense, it is a race-neutral reason." Id. The district court




                                            -8-
reversed for a new trial because based on the court's explanation in its ruling, "it

appear[ed] that the trial court bypassed the genuineness inquiry required in the

Melbourne analysis." Id. 582-83.

              As we read the facts in Simmons, we are unconvinced that defense

counsel in that case adequately objected to the trial court's failure to make the step 3

genuineness determination from Melbourne. However, it appears that the First District

treated the circumstance of a venireperson with a relative who was an active law

enforcement officer differently from how this court is treating a venireperson related to a

former law enforcement officer. Whether this factual difference is sufficient to prevent

this case from conflicting with Simmons is debatable. To avoid the necessity of

resolving that debate, we certify the same dispositive question of great public

importance in this case that we certified in Spencer:

              DURING A MELBOURNE HEARING, WHEN A TRIAL
              COURT FINDS THAT THE PROPONENT'S REASON FOR
              A PEREMPTORY CHALLENGE IS FACIALLY NEUTRAL, IS
              IT THE BURDEN OF THE OPPONENT (1) TO CLAIM THE
              REASON IS A PRETEXT, (2) TO PLACE INTO THE
              RECORD THE CIRCUMSTANCES SUPPORTING ITS
              POSITION, AND (3) TO OBJECT IF THE TRIAL COURT'S
              RULING DOES NOT CONTAIN ADEQUATE FINDINGS ON
              THE ISSUE OF GENUINENESS?

              Affirmed.


VILLANTI, C.J., and KELLY, J., Concur.




                                            -9-
