        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              TOMMY WEST,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-2025

                               [July 29, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
2011CF013521AMB.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

HAIMES, DAVID A., Associate Judge.

   Defendant Tommy West appeals his conviction and sentence for
aggravated battery with a deadly weapon causing great bodily harm. He
raises several issues on appeal. Because we agree that the trial court erred
in failing to conduct a “genuineness analysis” of the State’s peremptory
challenge of a Hispanic juror, we reverse and remand for a new trial.1

   During jury selection, the State exercised a peremptory challenge
against a prospective juror as follows:

      [Defense]: Your Honor, again, a race neutral reason?

      [Court]: What race is she?

      Defense]: She’s Spanish.

1
 Because we reverse on this issue, there is no need to address any of the other
issues raised in this appeal.
      [Court]: Okay.

      [State]: I don’t know that she’s Spanish.

      [State2]: Judge, I don’t know if –

      [State]: Judge, I don’t know if it was ever established that
      she’s Spanish.

      [Court]: Do you have a – what’s your reason for striking her?

      [State]: She’s unemployed.

      [Court]: All right. That’s a race neutral reason. I think she
      was a housekeeper.

      [Defense]: She said she’s a housekeeper for a retirement
      home. Her husband was the one that was unemployed – no,
      I’m sorry, her kids are unemployed, but she’s a housekeeper
      for a retirement home.

      [State2]: She didn’t say she was married. She’s not married.

      [Defense]: She’s employed.

      [State]: We don’t want a housekeeper on our jury.

      [Court]: All right. How many have you used? I’ll permit that
      one.

   The trial court allowed the strike and a jury was eventually selected.
After jury selection and before the jury was sworn, the defense counsel
renewed the objection to the juror.

   Defendant argues on appeal that the State’s asserted reason for
dismissing the juror was pretextual and that the trial court erred by not
determining the genuineness of the State’s proposed race neutral reason
for striking the juror. The State responds that the trial court conducted
an explicit genuineness analysis for other strikes, arguing this shows that




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the trial court would have done so on the record if it did not accept the
genuineness of the strike.2

    “Where a peremptory strike is alleged to have been exercised in a
racially discriminatory manner, we review a trial court’s ruling ‘to
determine whether it was clearly erroneous or an abuse of discretion.’”
Cook v. State, 104 So. 3d 1187, 1189 (Fla. 4th DCA 2012) (quoting
Wimberly v. State, 118 So. 3d 816, 820 (Fla. 4th DCA 2012)). “In
conducting our review, we are guided by the principles that ‘peremptory
challenges are presumed to be exercised in a nondiscriminatory manner’
and that a ruling on such a challenge ‘turns primarily on an assessment
of credibility.’” Id. (quoting Cobb v. State, 825 So. 2d 1080, 1086 (Fla. 4th
DCA 2002)).

   In Melbourne v. State, 679 So. 2d 759 (Fla.1996), the Florida Supreme
Court established the following three-step procedure that must be followed
when a party objects to the exercise of a peremptory challenge on the basis
that it was made on a discriminatory basis:

        First, the objecting party must make a timely objection, show
        that the venireperson is a member of a distinct protected
        group, and request that the trial court ask the striking party
        to provide a reason for the strike. Second, if these initial
        requirements are met, the court must ask the proponent of
        the strike to explain the reason for the strike, and the burden
        shifts to the proponent to come forward with a race-, ethnicity-
        , or gender-neutral explanation. Third, if the explanation is
        facially race-, ethnicity-, or gender-neutral, the court must
        determine whether the explanation is a pretext “given all the
        circumstances surrounding the strike,” with the focus of this
        inquiry being the genuineness of the explanation.

Hayes v. State, 94 So. 3d 452, 461 (Fla. 2012) (citing Melbourne, 679 So.
2d at 764)). The Florida Supreme Court has explained previously that
“Melbourne establishes a simple, precise, and easy-to-administer
procedure for challenging a litigant’s suspected use of a peremptory
challenge to discriminate based on race or other impermissible factors. . .

   2   The State also argues that Defendant failed meet his burden under the first
step of the Melbourne analysis that the juror was a member of a distinct racial
group. However, the trial court accepted that the juror was Hispanic. It is
unnecessary to identify a challenged juror’s race where it is obvious or not
disputed. See Franqui v. State, 699 So. 2d 1332, 1334 (Fla. 1997).


                                         3
. The ‘simplified inquiry’ adopted by this Court recognizes that little is
required to request, and evaluate, a neutral explanation. . . .” Welch v.
State, 992 So. 2d 206, 213 (Fla. 2008) (quoting State v. Whitby, 975 So. 2d
1124, 1130 (Fla. 2008) (Pariente, J., concurring)). “Compliance with each
step is not discretionary, and the 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.” Hayes, 94 So. 3d at 461.

    In Hayes, the Court held that “where the record is completely devoid of
any indication that the trial court considered circumstances relevant to
whether a strike was exercised for a discriminatory purpose, the reviewing
court, which is confined to the cold record before it, cannot assume that a
genuineness inquiry was actually conducted in order to defer to the trial
court.” Hayes, 94 So. 3d at 463. Subsequent to Hayes, our court has
consistently reversed for a new trial where the record has not provided us
with any indication that the trial court engaged in the genuineness inquiry
required by Melbourne. See Denis v. State, 137 So. 3d 583, 586 (Fla. 4th
DCA 2014) (reversing because record was devoid of any indication that the
trial judge implicitly or explicitly conducted genuineness analysis of state’s
reason for peremptory challenge); Burgess v. State, 117 So. 3d 889, 892
(Fla. 4th DCA 2013) (holding that the trial court’s failure to make
necessary findings as to the genuineness of the state's race-neutral
reasons for using peremptory strikes on African–American jurors was
reversible error); Victor v. State, 126 So. 3d 1171, 1175 (Fla. 4th DCA 2012)
(reversing conviction where trial court failed to engage in an analysis of
whether the facially race-neutral reasons for peremptory strikes of black
prospective jurors were genuine); Cook, 104 So. 3d at 1190–91 (reversing
for the trial court's failure to analyze the genuineness of the state’s
proffered race-neutral reasons for a peremptory strike).

   Turning to the present case, the State initially proffered that the race-
neutral reason for its peremptory strike was that the juror was
unemployed. The trial court accepted the explanation as a race-neutral
reason; however, the trial court then corrected the State that the juror was
a housekeeper and not unemployed. The State responded that “[w]e don’t
want a housekeeper on our jury.” Without any analysis as to pretext or
genuineness, the trial court then summarily sustained the peremptory
challenge. Because the record contains no indication that the trial court
engaged in any genuineness analysis, Hayes requires that the conviction
be reversed and the case remanded for a new trial.

   Reversed and remanded for a new trial.

DAMOORGIAN and GERBER, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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