       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JOHN PACCHIANA,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-3340

                           [February 14, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 08-
3720CF10C.

  Fred Haddad of Haddad & Navarro, PLLC, Fort Lauderdale, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Saber, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   In this case, the state and the trial court ratified the striking of a
potential juror based not on her views, but merely because of her
membership in a particular religious group. For this reason and for the
reasons stated below, we reverse.

    First, the trial court should not have found the state’s reason for the
strike to be genuine and race-neutral because the state did not question
the juror regarding her religion before exercising the strike and, even
after questioning, nothing in the record showed her religion would
prevent her from being a fair and impartial juror. Second, even if the
strike were genuinely based on the juror’s religion, a member of a religion
that is a cognizable class is protected from being struck from a jury
based solely on her faith where there is no evidence that her faith would
prevent her from being a fair and impartial juror. Third, striking a
potential juror based entirely on her particular religious affiliation,
without any evidence that her religion would prevent her from being fair
and impartial juror, is an impermissible “religious test” in violation of the
United States and Florida Constitutions.

    The state charged appellant and codefendants with first-degree
murder and conspiracy to commit first-degree murder. After a joint trial,
the jury found appellant guilty as charged. The trial court sentenced
appellant to life imprisonment. Appellant raises several issues on
appeal, including that the trial court erred in granting a peremptory
strike of a prospective juror. Because we find this issue dispositive, we
need not address the other issues.

   A trial court’s decision on whether a peremptory strike has been
exercised in a racially discriminatory manner will be affirmed on appeal
unless clearly erroneous. Melbourne v. State, 679 So. 2d 759, 764-65
(Fla. 1996).

   During voir dire, the prospective juror at issue, who is black,
completed a juror questionnaire answering questions concerning her
occupation, previous juror experience, and the like.           On that
questionnaire, she listed her hobbies as “reading, witnessing a Jehovah
Witness.”

   In response to the court’s questioning during voir dire, the prospective
juror stated that she had worked in customer service, that she was not
currently working, and that she wanted to serve on the jury. She was
previously on a civil jury that reached a verdict for the plaintiff. She had
been the victim of a burglary and her brother was in jail for armed
robbery, but that would not impact her ability to be fair and impartial in
this case. She confirmed that she was able to serve, that she wanted to
serve, and that she would do a good job as a juror.

   The prospective juror agreed with various hypotheticals presented by
the prosecutor, acknowledging that it was reasonable to conclude that a
“pen is a pen” by looking at it and that one can tell what a puzzle is a
picture of from 90 pieces out of 100. She also agreed that a description
of a woman in a white flowing gown and a man with a smile on his face
was a description of a wedding and not a funeral. When the prosecutor
asked how the state proves its case, she answered “in documentation
from another professional.” She confirmed she understood that the
burden of proof was with the state. She agreed that based on new
information from one witness, she might disbelieve the testimony of a
previous witness. She also agreed that it is natural to begin deciding
whether someone is believable while that person is testifying. When


                                     2
defense counsel asked whether first impressions are correct, she
responded, “Sometimes, sometimes not.”

   The fact that this case involved guns did not cause any issues for her.
No one in her house owned or possessed a handgun, nor had she ever
shot a handgun. None of her family or close friends had ever been a
victim of handgun violence. When asked if she could envision a situation
where a person may legally and lawfully shoot someone who is unarmed,
she answered “yes.”

   During jury selection, the state used a peremptory challenge to strike
the prospective juror. The following then transpired:

         [DEFENSE COUNSEL]: Can we get a race neutral reason?

         [THE STATE]: She’s a Jehovah Witness. I’ve never had
      one say, and I highlighted it, they’ve always said they
      can’t sit in judgment. She never brought it up.

         [DEFENSE COUNSEL]: She did.

         [THE STATE]: No, but she put at the bottom that she’s a
      Jehovah Witness, that gives me pause.

          [DEFENSE COUNSEL FOR CO-DEFENDANT]: That’s a
      religious based strike.

         [THE STATE]: You can say that but that’s—for 20 years,
      [defense counsel for co-defendant] knows, any one of them
      that’s been practicing they’ve always said that. Now maybe
      she’s less—

         [DEFENSE COUNSEL FOR CO-DEFENDANT]: She reads
      Jehovah stuff, she doesn’t say she’s a practicing Jehovah
      Witness.

         THE COURT: Let’s bring in [the prospective juror].
         ....

         [Prospective juror], if you wouldn’t mind having a seat in
      the front row, we have a question I want to ask you. You
      indicated in your questionnaire that you’re a Witness,
      Jehovah Witness.


                                    3
   [PROSPECTIVE JUROR]: Yes.

    THE COURT: How would that affect your ability to be fair
in this case? We’ve had them before. Do you have any
religious beliefs that would prevent you from being fair and
impartial in this case?

  [PROSPECTIVE JUROR]: If the evidence that’s provided to
me is clear cut and concise I would be able to. If my ruling
wouldn’t—

   THE COURT: In light of my questions, [prosecutor]?

   [THE STATE]: So there’s no prohibition, and honestly I
don’t know enough about religion, and I don’t mean that
disrespectfully, but I want to make sure that you as an
individual, whatever your beliefs are, there’s nothing
preventing you from sitting in judgment of a case, because
that’s really what you’re doing, you’re judging whether we’ve
proven our case or not. You can do that?

   [PROSPECTIVE JUROR]: I can, and before I believe it was
Judge Levenson who said that we would not be making the
sentencing.

   THE COURT: How do you feel about that?

   [PROSPECTIVE JUROR]: I’m okay with that.

   THE COURT: Okay.

   [THE STATE]: The fact that you said that, if you were
involved – I’m taking it to mean, and maybe I’m wrong, if
you’re involved in sentencing then you are saying you
wouldn’t be sitting?

   [PROSPECTIVE JUROR]: Then I would say no.

   [THE STATE]: You realize your decision here if, in fact,
you’re to vote –

  [DEFENSE COUNSEL FOR CO-DEFENDANT]: I object to
any further questions with this juror.


                             4
   THE COURT: Overruled.

   [THE STATE]: If, in fact, you know, you vote that it’s
proven, you have nothing to do with sentencing but the
Judge would based on your decision saying it’s proven.

   [PROSPECTIVE JUROR]: If the State gives me all the
evidence that I can see where you can show me that these
individuals did this act, then I—can make a decision on that
and based on the decision that you provide me.

   [THE STATE]: Well, we don’t provide you with a decision.

   [PROSPECTIVE JUROR]: Well, the evidence that I’m
given.

   [THE STATE]: Yes, ma’am. You said all the evidence. You
can do that beyond a reasonable doubt?

   [PROSPECTIVE JUROR]: Yes.

   [THE STATE]: The reason. I’m asking, I want to make
sure—whatever the Judge says the law is—

   [PROSPECTIVE JUROR]: Right.

   [THE STATE]: Okay.

   THE COURT: Any questions from the Defense?

   [DEFENSE COUNSEL FOR CO-DEFENDANT]: None.

   ....

   THE COURT: Thank you, ma’am. Record reflect that the
juror’s [sic] have left the courtroom and the door is closed.
What say you, [prosecutor]?

   [THE STATE]: My reason is unchanged, I don’t believe I
can meet her burden. I can meet my burden beyond a
reasonable doubt but I cannot meet her burden and that’s a
concern to me and it has nothing to do with religion or
anything else.


                             5
   THE COURT: Let me hear from the Defense.

   [DEFENSE COUNSEL]: We object to her being challenged
for cause, then he’s going to have to come up with a race
neutral reason.

   [THE STATE]: This is a peremptory.

   THE COURT: Over the Defense objection I find that the
record sufficiently supports a race neutral reason because of
the concern about her responses to the questions. So over
your objection it’ll be granted.

    [DEFENSE COUNSEL]: You need to, I think the law
requires you to put on the record what the race and reason
is.

   THE COURT: Well, he—

   [THE STATE]: I believe I did that.

   THE COURT: Tell me.

   [DEFENSE COUNSEL FOR CO-DEFENDANT]: If the Court
is making the ruling—so the Court has already made the
statement, you find a race neutral reason. We’re asking the
Court to follow the law and to tell us what that race neutral
reason is that’s already affected your decision, that’s all.

    THE COURT: Okay, that’s fair enough. Listen, she’s a
Jehovah Witness, I think there was some discussion about
her and the issue of the sentencing part of it, she did waiver
[sic] along the way there.

    Look, if it were me making a decision, me perceiving it
differently, but out of deference to the person who is the
moving party, as long as there’s some reason, or suggestion
based on her responses and overall nature of her—and plus I
think alternatively, additionally I want to point out I know
it’s a blind record but there’s a number of other African
Americans on the jury, I think that based on the totality of
the circumstances I think it rises to the legal of a non based
reason. I understand your point though, it is well taken. Do
you want to respond?

                              6
        [DEFENSE COUNSEL FOR CO-DEFENDANT]: Yes, we
      move to strike the panel.

         THE COURT: Based on?

         [DEFENSE COUNSEL FOR CO-DEFENDANT]: Based on
      the Court depriving us of a juror that we think should be
      seated.

          [DEFENSE COUNSEL FOR CO-DEFENDANT]: We all join
      in, of course.

         THE COURT: Yes, it’ll be a joint motion. I think we talked
      about that before, [defense counsel for co-defendant].

         [DEFENSE COUNSEL FOR CO-DEFENDANT]: I wanted to
      clarify it one last time.

         [DEFENSE COUNSEL]: Especially because we think this
      is going to be a key appellant [sic] issue, so I want to make
      sure we’re all in.

         THE COURT: Everybody’s in, all right. . . .

         ....

          THE COURT: Do you understand who the panel is? Go
      over the panel one more time, I’m going to highlight it now. .
      . . Noted for the record that there was an objection to [the
      prospective juror], [the prospective juror] was objected to
      that’s why you’re not tendering the panel.

(emphasis added).

    After voir dire but before the jury was sworn, appellant filed a written
motion for mistrial and to select a new jury. At a hearing on the motion,
the following transpired:

         THE COURT: I do want to say that it was late in the day
      and you had asked me or arguably confronted me with
      making a record as to why I was doing what I was doing, and
      it was late in the day for everybody, so I’m not casting
      aspersions. The case that you cited, [defense counsel], the

                                     7
Davis case, out of the Supreme Court of Minnesota, really
says it well in terms of [the prosecutor’s] basis. It says here,
“In my experience, that faith is very integral to their daily life
in many ways that many Christians are not, that was
reinforced by at least three times a week he goes to church,”
blah, blah, blah, talking about Jehovah witnesses. Jehovah
Witnesses are peculiar, and many of them in my
experience have said they cannot judge, that God judges,
and based on that I find that to be a genuine non-race-
based reason. In fact, in that, in that case, in the Davis
case, the defense actually conceded that. We’ll get to your
next issue, but I’m just making a record as to that. So, the
fact that she says, the juror says, that she’s a Jehovah
Witness, notwithstanding the fact that she says she can
still be fair and impartial, he says, “You know what, I
don’t feel comfortable with the fact that she has that
religion.”

   It’s sort of analogous if we had an African-American FBI
agent who was on the panel and said, “I can be fair and
impartial, I can assess police officers just as well as anyone
else,” but you strike him anyway. So, I think they’re pretty
analogous.

   A Jehovah Witness, that as a religion, it would almost
be malpractice for a prosecutor to let someone on the
jury like that.

   ....

   [THE STATE]: . . . [T]he only thing that I would add is the
timeliness, a contemporaneous objection.        As you have
framed it and [defense counsel] framed it correctly, his
challenge was a race neutral reason.

    My reasoning had nothing to do with race, Jehovah’s
Witnesses can be White, they can be Black, they can be
Asian, Hispanic, whatever the ethnicity is, and that’s the
finding the Court made. This motion is untimely. I know
he’s trying to make his record contemporaneous to it, the
separate objection, not the race-based reason, but a
religious-based, he states it well in the motion, it speaks for
itself, the basis for that. So, that’s the only thing I would
add, that it’s untimely.

                                8
         ....

          THE COURT: . . . . The other thing I want to point out to
      you, not to get technical here, [defense counsel], but you did
      file a motion for mistrial, the jury’s [sic] haven’t been sworn.

         [THE STATE]: Right.

         THE COURT: So, it really should be a motion to strike the
      jurors. I think the argument is an interesting argument. I
      think you concede, the excellent professional lawyer that you
      are, that this is a first impression type issue.

         [DEFENSE COUNSEL]: Right.

        THE COURT: You want to extend Batson, which the
      Supreme Court has not done.

         [DEFENSE COUNSEL]: Absolutely.

         THE COURT: I’m going to exercise my discretion and deny
      that request. However, all of your objections are duly noted
      and preserved at this time.

(emphasis added).

    “Preservation of an objection to the use of a peremptory strike
requires more than one objection: an objection to initiate a Melbourne
inquiry and another objection before the jury is sworn in.” Denis v.
State, 137 So. 3d 583, 585 (Fla. 4th DCA 2014). Additionally, “if the
proponent of the peremptory strike proffers a facially race-neutral reason
for the strike during step 2 of the Melbourne procedure, the party
objecting to the strike must preserve the issue by putting the court on
notice that he or she contests the factual assertions on which the strike
is based.” Id.

    In this case, the issue is preserved because defense counsel objected
to the peremptory strike by asking for a race-neutral reason. See Foster
v. State, 767 So. 2d 525, 528 (Fla. 4th DCA 2000). Additionally, the trial
court noted the defense did not tender the jury because of the objection
to the strike of the prospective juror. Because the state’s proffered
reason of religion was not a facially race-neutral reason sufficient to
rebut the prima facie case of racial bias, appellant did not need to do

                                     9
anything more to preserve the issue. See id.; State v. Davis, 504 N.W. 2d
767, 772 (Minn. 1993) (stating that striking a black juror because he was
a Jehovah’s Witness would not rebut the prima facie case of racial bias).

    Regardless, even though it was not required, the defense did put the
court on notice that it was objecting to the legitimacy of the reason given
by the state for the strike. Specifically, in response to the state’s
proffered reason that the prospective juror was a Jehovah’s Witness,
counsel for one of the co-defendants stated, “That’s a religious based
strike.” The fact that this objection was made by counsel for a co-
defendant rather than appellant’s defense counsel is of no importance.
The purpose of the rule requiring a timely contemporaneous objection is
to “place the trial judge on notice that error may have been committed,
and provide him an opportunity to correct it at an early stage of the
proceedings.” Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005). The
objection by the co-defendant’s counsel achieved the objective of this
rule. The court clearly understood the alleged error and brought the
prospective juror in for further questioning.

   Additionally, after the state announced that its proffered reason
remained unchanged upon questioning the juror regarding her religion,
appellant’s counsel objected that the state failed to provide a race-neutral
reason, again putting the court on notice that religion was not a
legitimate reason. After the trial court allowed the strike, counsel for a
co-defendant moved to strike the panel based on the court’s exclusion of
the prospective juror. All of the defense attorneys joined the motion,
including appellant’s counsel, who stated, “Especially because we think
this is going to be a key appellant [sic] issue, so I want to make sure
we’re all in.” The trial court confirmed, “Everybody’s in, all right.”

   Further, after voir dire and before the jury was sworn, appellant filed
a written motion, yet again objecting to the striking of the juror based on
her religion and requesting a new jury. The trial court denied the
request but noted that “all of your objections are duly noted and
preserved at this time.”

    From this record, there can be no doubt the trial court was on notice
and fully understood that appellant, as well as his codefendants,
objected to the strike, the reason given by the state for the strike, and the
trial court’s acceptance of that reason as genuine. Therefore, this issue
is preserved.

   I. Improper Race-Based Strike


                                     10
   As the United States Supreme Court has stated, “[r]acial
discrimination in selection of jurors harms not only the accused” but
also “unconstitutionally discriminate[s] against the excluded juror.”
Batson v. Kentucky, 476 U.S. 79, 87 (1986).            “The harm from
discriminatory jury selection extends beyond that inflicted on the
defendant and the excluded juror to touch the entire community.” Id.

    In Florida, the Neil-Slappy line of cases sets out a procedure to
determine if a preemptory challenge is racially-motivated. Step 2 of this
analysis requires the proponent of the strike to articulate a “‘clear and
reasonably specific’ racially neutral explanation of ‘legitimate reasons’ for
the [strike].” Melbourne, 679 So. 2d at 763 (citation omitted) (alteration
in original). In Step 3, the trial court determines the genuineness of the
strike. Id. at 764.

    In this case, the state did not provide a “legitimate” race-neutral
reason as required under Melbourne. During voir dire, the potential juror
stated that she would follow the law and gave no indication that she
would allow her status as a Jehovah’s Witness to affect her decision-
making at all. In moving to strike her, the state merely relied on the
juror’s membership in a religion without any testimony that it would
actually affect her service as a juror, speculating that “any” practicing
Jehovah’s Witness would refuse to sit in judgment of others. In fact, the
state moved to strike the juror before even questioning her about her
religion and without determining whether she shared any alleged “group
bias” that would potentially prevent her from being an unbiased juror.

   We often look to whether the juror was questioned, in detail or at all,
to determine the genuineness of a claimed race-neutral strike. In the
absence of questioning regarding the juror’s adherence to any claimed
group bias, then the genuineness of the strike can be called into doubt.
Landis v. State, 143 So. 3d 974, 979 (Fla. 4th DCA 2014).

   In Landis, the state, when asked for a race-neutral reason for a
peremptory strike, proffered that the juror worked in the restaurant
industry where drugs run rampant.         However, the state had not
questioned the juror regarding his occupation or what effect it might
have on his ability to serve as a juror. Given this record, “the trial
court’s determination of the genuineness of the strike lacked sufficient
grounds and was clearly erroneous.” Id. at 980.

   In attempting to distinguish Landis, the concurrence misapprehends
the purpose for which Landis is cited. Landis is cited for the proposition
that the failure to question a juror about the proffered reason for the

                                     11
strike casts doubt on the genuineness of the strike. That is not to stay
that religion can never be a race-neutral reason for a strike. Rather,
because the state never even inquired about the juror’s religion in this
case, it obviously was not a concern to the state and not a genuine basis
for the strike.

    This point is further illustrated by Frazier v. State, 899 So. 2d 1169
(Fla. 4th DCA 2005). In that case, the state struck a black juror because
she was an immigrant from Jamaica, a country known for drug
trafficking. However, “the prosecutor made no attempts to question [the
juror] about her familiarity and experiences, if any, with drug trafficking
in Jamaica. Rather, the prosecutor’s challenge rested on stereotypical
assumptions about Jamaicans.” Id. at 1175. In finding the state did not
provide a race/ethnic-neutral reason for the strike, this court stated that
“[a] policy of striking all jurors who originate from a country inhabited by
a distinct racial or ethnic group, without regard to the particular
circumstances of the trial or the individual responses of the jurors, is
inherently discriminatory.” Id.

   Here, the state’s race-neutral explanation based on the prosecutor’s
“20 years” of experience is no different than the discriminatory
stereotyping that we disallowed in Frazier. See also Cobb v. State, 825
So. 2d 1080, 1084 (Fla. 4th DCA 2002) (“Florida courts have often
invalidated a peremptory challenge as a pretext where the excused juror
was not questioned and shown to share the alleged group bias.”); Haile v.
State, 672 So. 2d 555, 556 (Fla. 2d DCA 1996) (holding trial court erred
in accepting state’s strike of African American juror because she read
Bible without conducting further inquiry; “this court cannot conclude,
without evidence related to the facts of the case, that the reading of the
Bible, a practice embraced by a significant percentage of the American
public, would render that portion of the population inherently partial.”).

   The case of Davis is also instructive. 504 N.W. 2d 767. In that case,
the Minnesota Supreme Court chose not to extend the Batson bar on
race discrimination to peremptory strikes on the basis of religion. Yet
even the Davis court noted:

          If the prosecutor had said no more than she was striking
      the black juror because he was a Jehovah’s Witness, we
      think this would not have rebutted the prima facie case of
      racial bias, anymore than if the prosecutor had said she was
      striking because the black juror was a Lutheran, a Baptist,
      or a Muslim.


                                    12
Id. at 772. In the present case, as in Davis, the state relied on the fact
that the juror was a Jehovah’s Witness, and this also would not “rebut[]
the prima facie case of racial bias” alleged. See id.

   Here, the juror was not questioned about her religious views until
after the state made its preemptory strike, thus calling its genuineness
into question. Moreover, even after questioning the prospective juror
about her religion, there was a complete lack of evidence that her religion
would influence her decision-making as a juror. In fact, the juror
unequivocally stated she would follow the evidentiary standard beyond a
reasonable doubt and none of her responses during voir dire gave any
reason to doubt this statement.

   Further, after the trial court determined that being a Jehovah’s
Witness was a race-neutral reason to strike the juror from the panel and
that she wavered on sentencing, the court opined that “a Jehovah
Witness, that as a religion, it would almost be malpractice for a
prosecutor to let someone on the jury like that.” These statements
support the argument that it was not the juror’s answers, but rather her
mere religious affiliation, that caused her to be struck from the panel.

   The dissent’s reliance on certain statements by the prospective juror
does not rebut the conclusion that the strike was based on an
impermissible reason. Although the prospective juror stated that the
evidence should be “clear cut and concise,” this layman’s statement was
made after the initial questioning and after the state’s exercise of the
peremptory strike, so it obviously could not have been the basis of the
state’s strike. Additionally, after making this statement, and in response
to the state’s questioning, the juror confirmed that she would apply the
reasonable doubt standard. Thus, even if the statement had been made
before the strike, the juror’s subsequent acknowledgement of the proper
standard should have removed any concern about her ability to follow
the law.

   The dissent also relies on the juror’s statement that she had been the
victim of a burglary and that her brother was in jail, but that neither of
these circumstances would affect her ability to be fair and impartial in
this case. The dissent is correct that a juror’s claim of impartiality is not
always dispositive. However, neither the state nor the trial court relied
on the juror’s status as a burglary victim or her brother’s imprisonment
as justification for the peremptory strike. Even the dissent concedes that
these grounds were not “expressed by the trial court.” Therefore, the
dissent’s reliance on Cunningham v. State, 838 So. 2d 627, 630 (Fla. 5th


                                     13
DCA 2003), and Peters v. State, 874 So. 2d 677, 679 (Fla. 4th DCA
2004), is misplaced.

    The dissent further relies on the trial court’s statement that the juror
wavered with respect to sentencing. However, the state did not advance
this reason as a basis for its peremptory strike. See Floyd v. State, 569
So. 2d 1225, 1229 (Fla. 1990) (“It is the state’s obligation to advance a
facially race-neutral reason that is supported in the record.”). Moreover,
the record does not support a finding that the prospective juror wavered.
See id. In response to the court’s questioning, the juror stated that the
jury “would not be making the sentencing” and that she was “okay with
that.” The state itself advised the juror that “[i]f, in fact, you know, you
vote that it’s proven, you have nothing to do with sentencing but the
Judge would based [sic] on your decision saying it’s proven.” Further,
jurors are instructed not to consider sentencing during the penalty phase
of trial, and “it is presumed that jurors will, in good faith, follow the law
as it is explained to them.” Hurst v. State, 202 So. 3d 40, 63 (Fla. 2016).

    Although the trial court noted that “there’s a number of other African
Americans on the jury,” “[t]he relevant issue in this inquiry is whether
any juror has been excused because of his or her race, independent of
any other juror.” State v. Johans, 613 So. 2d 1319, 1321 (Fla. 1993)
(citing State v. Slappy, 522 So. 2d 18, 21 (Fla. 1988)). “A race-neutral
justification for a peremptory challenge cannot be inferred merely from
circumstances such as the composition of the venire or the jurors
ultimately seated.” Id. “[T]he striking of a single black juror for a racial
reason violates the Equal Protection Clause, even where other black
jurors are seated, and even when there are valid reasons for the striking
of some black jurors.” Slappy, 522 So. 2d at 21 (citation omitted).

   II. Improper Religion-Based Strike

    Even if the state’s strike were “genuinely” based on the juror’s
religion, members of a religion that is a cognizable class are also
protected under the United States and Florida Constitutions from being
systematically struck from juries solely based on their faith. Appellant
has a right to a fair and impartial jury panel where the state does not
exclude members of a religion in the absence of competent substantial
evidence that the potential juror cannot be fair and impartial due to her
views related to her membership in that religion.

   In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme
Court held that the Equal Protection Clause prohibits race-based
peremptory challenges. Over the years, courts have expanded Batson to

                                     14
other peremptory challenges based on the Equal Protection Clause. The
United States Supreme Court extended the equal protection analysis to
gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 1

   Similarly, the Florida Supreme Court previously found that Hispanics
were a “cognizable class” of people, requiring an ethnic-neutral reason
before excusing a juror. State v. Alen, 616 So. 2d 452, 454 (Fla. 1993).
That court applied a two-part test to determine if a group constitutes a
cognizable class: whether the group’s population is large enough to be
recognized as an identifiable group and whether that group has internal
group cohesiveness. Id.

    The Third District, following the same line of cases, held that a
preemptory challenge of a Jewish venireperson based solely upon her
religion was unconstitutional. Joseph v. State, 636 So. 2d 777 (Fla. 3d
DCA 1994). The court found that members of the Jewish religion were a
cognizable class under the standard articulated in Alen. The Joseph
court determined that members of the Jewish faith met the two-prong
test and concluded that striking members of the Jewish faith violated
Article 1, Section 16 of the Florida Constitution, which guarantees the
defendant an impartial jury. Id. at 781.

   In the present case, as in Joseph, members of the Jehovah’s
Witnesses would also appear to meet the two-prong test as a recognizable
group with internal group cohesiveness. See also State v. Gilmore, 511
A.2d 1150, 1159 n.3 (1986) (“[A]t minimum, cognizable groups include
those defined on the basis of religious principles, race, color, ancestry,
national origin, and sex (all of which are suspect or semi-suspect
classifications triggering strict or intermediate scrutiny under federal
equal protection analysis[.)]”) (citing Cleburne v. Cleburne Living Centers,
473 U.S. 3249 (1985)).

   This court has also found that striking a potential juror due to his or
her religious faith is unconstitutional. In Olibrices v. State, 929 So. 2d
1176, 1180 (Fla. 4th DCA 2006), our court found that the potential
juror’s “membership within the objectively discernible group of Pakistani
Muslims” was the basis of the exercise of a peremptory challenge. We

1 The dissent quotes from Justice O’Connor’s concurring opinion in J.E.B.,
wherein she expressed concern about “[l]imiting the accused’s use of the
peremptory challenge.”       Id. at 150. However, the instant case involves a
peremptory challenge by the state. J.E.B. stands for protecting the right of the
defendant to use a peremptory challenge to safeguard the right to a fair trial,
not for the state to exclude a discernable class of people.

                                      15
concluded that “whether the juror was challenged because he is of
Pakistani origin or because his religious belief is Muslim, it would be a
Neil Slappy violation to exercise a peremptory challenge of him on either
account.” Id. Similarly, in the present case, the potential juror is a
member of an “objectively discernible group,” that being the Jehovah’s
Witnesses.

   Rodriguez v. State, 826 So. 2d 494 (Fla. 4th DCA 2002), and Happ v.
State, 596 So. 2d 991 (Fla. 1992), which are cited by the dissent, are
distinguishable. The peremptory strike in Rodriguez was based on the
prospective juror’s occupation and not based on membership in a
particular religious group.     826 So. 2d at 495.      Happ is also
distinguishable because in that case, unlike in the instant case, the
defendant did not contest the reasons given by the state for the strike.
596 So. 2d at 996.

   The dissent also relies on the trial court’s superior vantage point as
justification for affirmance. Although it is generally true that we should
rely on the superior vantage point of the trial court, that axiom does not
hold true where the trial court has ratified the state’s erroneous and
unconstitutional strike of a prospective juror based on religious
membership alone. See Frazier, 899 So. 2d at 1175 (“When stereotypical
presumptions are based on a juror’s nationality or ancestral home and
proffered as a reason for a peremptory strike, discrimination in jury
selection has occurred as a matter of law.”); Foster v. State, 929 So. 2d
524, 537 (Fla. 2006) (stating that deference to a trial court’s superior
vantage point applies only if its decision is supported by competent
substantial evidence).

    Other jurisdictions have also declared invalid strikes based on
religious affiliation. For instance, in State v. Hodge, 726 A.2d 531, 550
(Conn. 1999), the Connecticut Supreme Court held that “a peremptory
challenge based on a venireperson’s religious affiliation is
unconstitutional.” The court explained that “[a]lthough one’s religious
beliefs may render a prospective juror unsuitable for service in a
particular case, one’s religious affiliation, like one’s race or gender, bears
no relation to that person’s ability to serve as a juror.” Id. at 553.

   Although those who argue against extending Batson often cite to
Davis, as noted above, the Minnesota Supreme Court actually recognized
that striking a juror based solely on his affiliation with the Jehovah’s
Witnesses would not rebut the prima facie case of racial bias. See Davis,
504 N.W. 2d at 772. This is the exact situation presented in the instant
case.

                                     16
    Interestingly, although the United States Supreme Court denied the
petition for review by certiorari in Davis, Justice Thomas, joined by
Justice Scalia, dissented from the denial of certiorari.          Davis v.
Minnesota, 511 U.S. 1115 (1994). Justice Thomas, citing to J.E.B.,
disputed the Minnesota Supreme Court’s conclusion that “Batson’s equal
protection analysis applies solely to racially based peremptory strikes.”
Id. at 2121. Responding to the majority’s denial of the writ for certiorari,
the dissent stated:

             Indeed, given the Court’s rationale in J.E.B., no principled
         reason immediately appears for declining to apply Batson to
         any strike based on a classification that is accorded
         heightened scrutiny under the Equal Protection Clause. . . .
         J.E.B. would seem to have extended Batson’s equal
         protection analysis to all strikes based on the latter category
         of classifications-a category which presumably would include
         classifications based on religion.

Id.

    Justice Thomas correctly suggested that the rationale of Batson and
J.E.B. should be extended. Based on Alen, Joseph, and this court’s
decision in Olbrices, the trial court clearly erred in allowing the
prospective juror to be struck from service based on her membership in a
religious group.

    Thus, the state’s strike was either pretextual and entirely based on
race, or the state’s strike was not pretextual and entirely based on
religion despite the lack of competent substantial evidence that the
prospective juror’s religion would influence her decision-making as a
juror. Either way, it violates the United States and Florida Constitutions.

      III.   Strike Violates “Religious Test”

    Finally, striking a potential juror from jury service based solely on
membership in a religion, no matter what the juror says during voir dire,
is an impermissible “religious test” in violation of the United States and
Florida Constitutions. Where the state decides to strike the juror due to
her faith, even before discussing whether her faith would improperly
influence her decision, it becomes the state’s de facto position that a
member of that religion can never satisfy the state’s concerns and
effectively can never serve on a jury.         Likewise, the trial court’s
statement—that allowing a Jehovah’s Witness on a jury would be

                                       17
“malpractice”—effectively prohibits members of that religious group from
being able to serve as a juror.

    Article VI, Clause 3 of the United States Constitution states that “no
religious Test shall ever be required as a Qualification to any Office or
public Trust under the United States.” The United States Supreme Court
stated that “[w]e repeat and again reaffirm that neither a state nor the
Federal Government can constitutionally force a person ‘to profess a
belief or disbelief in any religion.’” Torcaso v. Watkins, 367 U.S. 488, 495
(1961) (citation omitted). To strike a juror for professing a belief in a
religion amounts effectively to a religious test. See also Fla. Const. art. I,
§ 2 (“Basic rights.—. . . No person shall be deprived of any right because
of race, religion, national origin, or physical disability.”); Fla. Const. art I,
§ 3 “Religious freedom.— . . . There shall be no law respecting the
establishment of religion or prohibiting or penalizing the free exercise
thereof.”).

  The United States Supreme Court has recognized that jury duty is a
public trust:

      [The jury is] an entity that is a quintessential governmental
      body, having no attributes of a private actor. The jury
      exercises the power of the court and of the government that
      confers the court’s jurisdiction. . . . [T]he jury system
      performs the critical governmental functions of guarding the
      rights of litigants and ensuring the continued acceptance of
      the laws by all of the people.

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 624 (1991).
(citation, quotation mark, and alterations omitted).          Every person,
regardless of his or her religion, should be eligible to serve in this public
trust.

    Another state that has adopted the rule prohibiting peremptory
strikes based on religious affiliation has also found this type of strike
violates the religious test doctrine:

         Furthermore, to allow the State to use peremptory strikes
      based on religious affiliation would condition the right to free
      exercise of religion upon a relinquishment of the right to jury
      service. See McDaniel v. Paty, 435 U.S. 618, 626-29 (1978)
      (invalidating a law that disqualified members of the clergy
      from holding certain public offices, because it imposed
      special disabilities on the basis of religious status); Powers v.

                                       18
      Ohio, 499 U.S. 400, 406-07 (1991) (recognizing the right to
      serve on a jury as an important democratic right). As the
      Court stated in Georgia v. McCollum, 505 U.S. 42, 59 (1992),
      “[i]n our heterogeneous society policy as well as
      constitutional considerations militate against the divisive
      assumption-as a per se rule-that justice in a court of law
      may turn upon the pigmentation of skin, the accident of
      birth, or the choice of religion.” Quoting Ristaino v. Ross, 424
      U.S. 589, 596 n.8 (1976) (emphasis added).

State v. Purcell, 18 P.3d 113, 121-22 (Ariz. Ct. App. 2001).

   The framework of our constitutional freedom is based in large part on
the protection of the free exercise of religion. Religious liberty can be
safeguarded only when every individual can participate in our civil
society regardless of his or her religion. Serving as a juror is one of the
highest forms of participation.

   Our founders understood that religious tests were inimical to the
rights of the individual within a free society:

      More sparingly should this praise be allowed to a
      government, where a man’s religious rights are violated by
      penalties, or fettered by tests, or taxed by a hierarchy.
      Conscience is the most sacred of all property; other property
      depending in part on positive law, the exercise of that, being
      a natural and unalienable right. To guard a man’s house as
      his castle, to pay public and enforce private debts with the
      most exact faith, can give no title to invade a man’s
      conscience which is more sacred than his castle, or to
      withhold from it that debt of protection, for which the public
      faith is pledged, by the very nature and original conditions of
      the social pact.

James Madison, Property, National Gazette, March 27, 1792, available at
https://founders.archives.gov/documents/Madison/01-14-02-0238.

    In sum, the strike was pretextual and based on race. Even if the
strike was not a pretext, then it was based on religion, which is also
impermissible. Finally, the strike imposed an unconstitutional religious
test.

   For all of these reasons articulated above, we reverse and remand for
a new trial.

                                    19
   Reversed and remanded.

GERBER, C.J., concurs in part and dissents in part with opinion.
MAY, J., dissents with opinion.

GERBER, C.J., specially concurring in part and dissenting in part.

   I concur with Judge Levine to reverse the defendant’s conviction and
remand for a new trial. Although I concur with most of my colleague’s
well-researched and well-written opinion, I write separately because I
respectfully disagree with his opinion in two respects:

   1. In my opinion, the defendant did not preserve his religion-based
   objection during the initial discussion over the prospective juror. The
   defendant only preserved his religion-based objection through his
   later-filed motion for mistrial and to select a new jury, which he filed
   before the jury was sworn.

   2. In my opinion, to the extent the state used a religion-based reason
   to oppose the defendant’s race-based objection, such a religion-based
   reason was both facially race-neutral (because religion and race are
   obviously two different things facially) and genuinely race-neutral
   (because the defendant did not satisfy his burden of persuasion to
   show that the state was using its religion-based reason as a pretext to
   strike the prospective juror because of her race). Thus, the trial court
   properly overruled the defendant’s race-based objection. However, to
   the extent the defendant ultimately raised a religion-based objection
   through his motion for mistrial and select a new jury, I agree with
   Judge Levine that the trial court erred in overruling the defendant’s
   religion-based objection based on the prospective juror’s answers to
   the questions posed to her.

I address each point in turn more fully below.

   1. Preservation

    The defendant did not preserve his religion-based objection during the
initial discussion over the prospective juror. The defendant’s initial
objection could not have been clearer that it was based on only the
prospective juror’s race: “Can we get a race neutral reason?”


                                    20
   Upon the state’s response, “She’s a Jehovah’s Witness,” the fact that
the co-defendant’s counsel then stated “That’s a religious based strike”
did not automatically transform the defendant’s race-based objection into
a religion-based objection.     At best, the co-defendant’s counsel’s
comment was ambiguous. Was the co-defendant’s counsel raising a
second objection based on religion? Or was the co-defendant’s counsel
simply commenting on the state’s proffered race-neutral reason for the
peremptory strike?

    Based on this record, the latter seems more likely. Unlike the
defendant’s counsel’s clear initial objection, “Can we get a race neutral
reason?”, at no point did either the defendant’s counsel or the co-
defendant’s counsel follow up with a similarly clear “Can we get a
religion-neutral reason?”    In fact, after the court brought in the
prospective juror for further questioning, the record reflects that: (1)
both the defendant’s counsel and the co-defendant’s counsel pursued
only a race-based objection; and (2) the court understood the objection to
have raised only a race-based objection:

      [DEFENSE COUNSEL]: We object to her being challenged for
      cause, then he’s going to have to come up with a race
      neutral reason.

      [THE STATE]: This is a peremptory.

      THE COURT: Over the Defense objection I find that the
      record sufficiently supports a race neutral reason because
      of the concern about her responses to the questions. So over
      [the defense] objection [the state’s peremptory strike will] be
      granted.

      [DEFENSE COUNSEL]: You need to, I think the law requires
      you to put on the record what the race and reason is.

      THE COURT: Well, he —

      [THE STATE]: I believe I did that.

      THE COURT: Tell me.

      [CO-DEFENDANT’S COUNSEL]: If the Court is making the
      ruling—so the Court has already made the statement, you
      find a race neutral reason. We’re asking the Court to follow


                                    21
      the law and to tell us what that race neutral reason is that’s
      already affected your decision, that’s all.

(emphasis added).

   I recognize that my colleague Judge May, in her articulate dissent
below, agrees with Judge Levine that the co-defendant’s counsel’s
statement, “That’s a religious based strike,” when added to the ensuing
discussion regarding the prospective juror’s religion, amounted to
preserving the defendant’s religion-based objection.      Respectfully, I
disagree with both of my colleagues. Although the defendant ultimately
preserved his religion-based objection through his later-filed motion for
mistrial and to select a new jury, which he filed before the jury was
sworn, the portion of the record which I have quoted above clearly
demonstrates that the defendant did not preserve his religion-based
objection until he filed that motion later.

   2. Using a Religion-Based Reason to Oppose a Race-Based
      Objection

    The other issue on which Judge Levine and I differ is his conclusion
in Part I of his opinion that the state improperly used its religion-based
reason to oppose the defendant’s race-based objection. In my opinion,
such a religion-based reason was both facially race-neutral (because
religion and race are obviously two different things facially) and
genuinely race-neutral (because the defendant did not satisfy his burden
of persuasion to show that the state was using its religion-based reason
as a pretext to strike the prospective juror because of her race). Thus,
the trial court properly overruled the defendant’s race-based objection.

   Judge Levine’s conclusion relies in part on our opinion in Landis v.
State, 143 So. 3d 974 (Fla. 4th DCA 2014).         However, Landis is
distinguishable.

   In Landis, the defendant was charged with trafficking in cocaine. 143
So. 3d at 976. The trial court had asked the prospective jurors to answer
a questionnaire including their occupation. Id. The prospective juror at
issue, whom the trial court later would describe as either African-
American, Indian, or “Island,” identified his occupation as a kitchen
manager. Id. Although the state and the defense questioned the
remainder of the panel, neither the state nor the defense posed any
questions to this prospective juror inquiring about his experience or his
ability to be fair and impartial. Id.


                                   22
    When the state requested a peremptory strike of this prospective
juror, the defense objected and requested a race-neutral reason for the
strike. Id. The state responded: “Judge, he’s a kitchen manager.
Although that means nothing to your honor or counsel. I worked in a
restaurant a lot. A lot of personal drugs run rampant. I don’t want a
person like that on my jury panel.” Id. (emphasis added).

   After the state provided this explanation, the trial court stated, “The
reason you offered is genuine and I will allow your strike.” Id. In
accepting the state's argument, the trial court simply noted that, just as
some attorneys have an aversion to accepting teachers on juries, it is
permissible to use a discretionary strike on a juror solely on the basis of
their employment within an industry that allegedly has a high rate of
drug use. Id. at 978. Thereafter, another prospective juror, a white male
who informed the court that he managed several family owned
restaurants, was accepted as an alternate without objection. Id. at 976.

    On appeal, the defendant argued that the trial court erred by failing to
make a suitable finding that the proffered race-neutral reason for the
strike was genuine. Id. at 977. We agreed with the defendant and
reversed. Id. at 978. We reasoned, in pertinent part:

         On this record, it does not appear that the trial court
      performed a legally sufficient genuineness analysis, stating
      only that it “found [the State’s reason] to be genuine and not
      pretextual.” In accepting the State’s argument, the trial
      court simply noted that, just as some attorneys have an
      aversion to accepting teachers on juries, it is permissible to
      use a discretionary strike on a juror solely on the basis of
      their employment within an industry that allegedly has a
      high rate of drug use. This alone is insufficient to show that
      the trial court properly considered the issue of genuineness.

         ...

         If the record lacks any indication that the trial court
      considered the totality of the 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 and give deference to the trial court.

Id. at 978. Based on those initial observations, we ultimately concluded:


                                    23
          Here, the challenged . . . prospective juror was similarly
      situated to the white male alternate juror who was accepted
      without challenge, despite that fact that he had also
      managed several family owned restaurants. As a result, the
      trial court should have made further inquiry into the
      challenged strike.

Id. at 981.

   Here, when the state sought to use a peremptory strike on the
prospective African-American juror based on her being a Jehovah’s
Witness, the state’s race-neutral explanation for the strike was based on
the prosecutor’s twenty years of experience screening other Jehovah’s
Witnesses as prospective jurors who uniformly said they “can’t sit in
judgment” of others. The genuineness of that race-neutral explanation is
more convincing than the Landis prosecutor’s rank speculation that the
prospective juror might be sympathetic to the defendant in a drug
prosecution because “I worked in a restaurant a lot. A lot of personal
drugs run rampant.” Id. at 976. An additional distinguishing fact
between the instant case and Landis is that the record here does not
mention another prospective juror who was similarly situated to the
prospective juror at issue but who was a different race, i.e., a Jehovah’s
witness who was not an African-American, whereas in Landis, our
opinion relied in part on the fact the challenged prospective juror was
similarly situated to a white male alternate juror who was accepted
without challenge, despite that fact that the alternate also had managed
several family owned restaurants. The trial court appears to have
considered the totality of these circumstances by commenting, “Listen,
she’s a Jehovah Witness . . . additionally I want to point out . . . there’s a
number of other African Americans on the jury, I think that based on the
totality of the circumstances I think it rises to the legal of a non [race-
]based reason.”

   Conclusion

    Having explained my opinions above, I concur with Judge Levine’s
ultimate conclusion to reverse the defendant’s conviction and remand for
a new trial. As I stated in the introduction to this concurring opinion, I
agree with Judge Levine’s well-reasoned conclusions in Parts II and III of
his opinion that the trial court erred in overruling the defendant’s
religion-based objection based on the prospective juror’s answers to the
questions posed to her. A new trial is required.

MAY, J. dissenting.

                                     24
   The future of the peremptory challenge is tested in this appeal from a
premeditated murder conviction. I respectfully dissent from the majority
opinion in part. I would affirm the conviction.

   The majority accurately recites the questions, answers, and
discussion concerning the stricken venire member so I will not repeat
them here. 2 Suffice it to say that the State moved to strike an African
American venire member. Defense counsel asked for a race neutral
reason, and it received one. So, the issue here is not whether the court
erred in striking an African American venire member without a genuine
race neutral reason. Rather, the issue morphed into whether the race
neutral reason, which included the venire member’s ability to be fair and
impartial due (in part) to her religious beliefs, violated the defendant’s
constitutional rights.

    The preservation issue relates to whether defense counsel preserved
the religious-based objection, for it is clear that defense counsel
preserved the race-based objection, and the State provided a reason
other than race. I agree with the majority that both the race and
religious based objections for the strike were preserved. But, I disagree
that the State’s exercise of its peremptory strike violated any
constitutional right of the defendant.

     We review a trial court’s decision on a peremptory strike to determine
if it was clearly erroneous. Rodriguez v. State, 826 So. 2d 494, 495 (Fla.
4th DCA 2002).

   Here, the prospective juror filled out a questionnaire, indicating she
had been a juror in a civil trial and listing her hobbies as “reading,
witnessing a Jehovah Witness.”        Upon further questioning, it was
determined that she had been the victim of a burglary and her brother
was presently in jail for a crime involving a gun, which was prosecuted
by the same Broward County State Attorney’s Office that was
prosecuting this case. She stated however that she could be fair and
impartial.

   The State explained its concern over what it perceived as a heightened
burden of proof expressed by the venireperson and its general concern
that members of this religion have previously indicated a refusal to stand

2 We denied a subsequent petition for writ of prohibition on the juror issue.
Bilotti et al. v. State, No. 4D15-1687 (Fla. 4th DCA May 1, 2015) (dismissing the
petition without prejudice by court order).

                                       25
in judgment of others. The trial court accepted the State’s reason for the
strike as genuine and struck the prospective juror. The defendant now
appeals.

   •   The History of Peremptory Challenges

    Over a century ago, the United States Supreme Court described the
peremptory challenge as “one of the most important of the rights secured
to the accused.” Pointer v. U.S., 151 U.S. 396, 408 (1894). Peremptory
challenges are rooted in English common law. See John P. Marks, Bader
v. State: The Arkansas Supreme Court Restricts the Role Religion May Play
in Jury Selection, 55 Ark. L. Rev. 613, 622 (2002). The founders of the
United States “preserved the English peremptory system to ensure that
jurors are impartial and will make determinations solely on the basis of
the evidence.” Michael J. Plati, Religion-Based Peremptory Strikes in
Criminal Trials and the Arizona Constitution: Can They Coexist?, 26 Ariz.
St. L.J. 883, 885 (1994).

   “The essential nature of the peremptory challenge is that it is one
exercised without a reason stated, without inquiry and without being
subject to the court’s control.” Swain v. Alabama, 380 U.S. 202, 220
(1965). Peremptory challenges are often “exercised upon the ‘sudden
impressions and unaccountable prejudices we are apt to conceive upon
the bare looks and gestures of another.’” Id. (quoting Lewis v. U.S., 146
U.S. 370, 376 (1892)).

   In Florida, a criminal defendant is guaranteed the right to a trial by
an impartial jury, which is accomplished in part by the use of the
peremptory challenge. State v. Alen, 616 So. 2d 452, 453 (Fla. 1993). A
peremptory challenge can, however, be a tool that can be transformed
into a disguise for discrimination against distinct groups of people. Id.

    A prosecutor cannot exercise peremptory challenges solely on account
of a prospective juror’s race. Batson v. Kentucky, 476 U.S. 79, 80 (1986).
Florida has extended this protection to ethnic groups, if the group is a
“cognizable class.” Alen, 616 So. 2d at 454.

    Indeed, we have previously held it was error to allow a peremptory
challenge based on the prospective juror’s Pakistani ethnicity or Muslim
religion alone. Olibrices v. State, 929 So. 2d 1176, 1180 (Fla. 4th DCA
2006). The Third District also held the striking of a venire member based
solely on a Jewish sounding last name was unconstitutional. Joseph v.
State, 636 So. 2d 777, 779 (Fla. 3d DCA 1994).


                                   26
   But, the United States Supreme Court has not yet extended Batson to
peremptory challenges based on religion. 3 See State v. Davis, 504
N.W.2d 767 (Minn. 1993), cert. denied, 511 U.S. 1115 (1994). Perhaps
this is because of the unique place the peremptory challenge occupies in
our jurisprudence. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148
(1994) (providing that gender and race are unconstitutional proxies for
juror impartiality, and reaffirming the Court’s commitment to jury
selection procedures free from group stereotypes rooted in historical
prejudice).

    In J.E.B., Justice O’Connor expressed her concern for the unique
importance of the peremptory challenge. “Limiting the accused’s use of
the peremptory challenge is a ‘serious misordering of our priorities,’ for it
means ‘we have exalted the right of citizens to sit on juries over the rights
of the criminal defendant, even though it is the defendant not the jurors,
who faces imprisonment or even death.’” Id. at 150 (O'Connor, J.,
concurring) (citations omitted).

    “Requiring the defendant to show actual bias-the standard applicable
to cause challenges-for the forced expenditure of a peremptory challenge
renders the separate statutory grant of peremptory challenges totally
meaningless.” Busby v. State, 894 So. 2d 88, 100 (Fla. 2004). “The fact
that some unbiased juror may be excused in the process is an affordable
price to pay for removing doubts about a particular juror’s impartiality
and competence, especially when the vote of one biased juror can make a
critical difference.” Davis, 504 N.W.2d at 770.

3  At the state level, courts have been torn on whether Batson should be
extended to religion. Compare State v. Purcell, 18 P.3d 113, 121-22 (Ariz. Ct.
App. 2001) (holding that Batson encompasses peremptory challenges based on
religious affiliation), Fields v. People, 732 P.2d 1145, 1153 n.15 (Colo. 1987)
(concluding that peremptories based on religious affiliation violate at least state
constitution), State v. Hodge, 726 A.2d 531, 552-53 (Conn. 1999) (holding that
federal law prohibits peremptories based on religious affiliation), and State v.
Levinson, 795 P.2d 845, 849-50 (Haw. 1990) (concluding that peremptories
based on religious affiliation violate at least state constitution), with Davis, 504
N.W.2d at 771 (declining to extend Batson to strikes based on religious
affiliation), State v. Gowdy, 727 N.E.2d 579, 586 (Ohio 2000) (holding religious
beliefs are a race-neutral and non-pretextual basis for exercising a peremptory
challenge because religion is often the foundation for an individual’s moral
values), Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (holding
that state interests in peremptory challenges justify excluding prospective
jurors based on their religious affiliation), and James v. Commonwealth, 442
S.E.2d 396, 398 (Va. 1994) (holding the venireperson’s display of a religious
symbol was a race neutral reason for exercising a peremptory challenge).

                                        27
   •   This Case

    Here, the venireperson informed the court she was a Jehovah’s
Witness in her response to a questionnaire. The court asked if her
religion would prevent her from being impartial and she said “if the
evidence that’s provided to me is clear cut and concise I would be able
to.” (emphasis added). The State responded that the venireperson’s
need for “clear cut and concise” evidence indicated a higher burden of
proof than beyond a reasonable doubt. The question then is whether the
record supports the trial court’s decision that the State’s reasoning was
genuine.

   Our Constitution forbids the use of peremptory challenges based
solely on race and gender. Alen, 616 So. 2d at 453-54; Abshire v. State,
642 So. 2d 542, 543-44 (Fla. 1994). But, a prospective juror’s actual
beliefs can be a proper basis for exclusion. In fact, we have upheld the
race-neutral strike of an African American church pastor based on a
prosecutor’s belief that the pastor would be too sympathetic despite the
pastor saying he could remain impartial. See Rodriguez v. State, 826 So.
2d 494 (Fla. 4th DCA 2002). And, our supreme court upheld the striking
of a venire member because she was a psychology teacher and Catholic
as race-neutral. Happ v. State, 596 So. 2d 991 (Fla. 1991), rev’d on
other grounds, 506 U.S. 949 (1992).

   The majority suggests that because the prospective juror indicated
she could be fair and impartial, it must be true. But, “where a
prospective juror is challenged for a race-neutral reason, the fact that the
juror asserts that he or she can nevertheless be fair and impartial does
not mean that the challenging party must be satisfied with the response.”
Cunningham v. State, 838 So. 2d 627, 630 (Fla. 5th DCA 2003) (citing
Symonette v. State, 778 So. 2d 500, 503 (Fla. 3d DCA), rev. denied, 794
So. 2d 606 (Fla. 2001)); see also Peters v. State, 874 So. 2d 677, 679 (Fla.
4th DCA 2004) (“[C]lose cases should be resolved in favor of excusing the
juror rather than leaving a doubt about the juror’s impartiality.”).

   The State presented a facially race-neutral reason for the strike, the
heightened burden of proof expressed by the prospective juror. In
addition, the prospective juror admitted during voir dire that she had
been the victim of a burglary and her brother was presently in jail for a
crime involving a gun, which was prosecuted by the Broward County
State Attorney’s Office even though she denied it would affect her ability


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to serve. The court also noted the prospective juror wavered at times,
especially considering sentencing.

   “There is no specific threshold of neutrality that must be satisfied by
the party explaining the peremptory strike”; there just needs to be a
race-neutral reason. Cobb v. State, 825 So. 2d 1080, 1083 (Fla. 4th
DCA 2002) (citation omitted). “[W]e must rely on the superior vantage
point of the trial judge, who is present, can consider the demeanor of
those involved, and get a feel for what is going on in the jury selection
process.” Id. at 1086 (citation omitted).

   Nevertheless, the majority suggests that the religious-based reasons
given here were insufficient or illegitimate to justify the striking of the
venireperson, and suggests the State struck the venireperson solely on
her religion. The majority is mistaken.

   The record reflects the State expressed its concern about the
venireperson’s ability to stand in judgment of others as expressed by her
need for clear and concise evidence, a burden the State felt exceeded the
requisite burden of proof. The trial court also noted the venireperson’s
concern about the sentencing of the defendant. And while not expressed
by the trial court, the prospective juror had explained that she was a
victim of a burglary and had a family member imprisoned for a crime
involving a gun.

   The majority also makes a point that the State objected to the
venireperson before having the opportunity to question her about her
beliefs. While this may be true, the objection alerted the court to the
issue, and allowed the court to arrange for the prospective juror to be
questioned alone without embarrassing her in front of the other
prospective jurors or tainting the other jurors.      Before the court
determined the State’s strike was genuine, the State did question her
about her beliefs.

   The majority relies in part on the court’s expressed opinion that it
would be malpractice for a prosecutor to allow a Jehovah’s Witness to
remain on the jury. Significantly, that expression occurred after the
court determined the State’s reason—its concern about the heightened
burden of proof—was genuine.

   Joseph v. State, 636 So. 2d 777 (Fla. 3d DCA 1994), does not dictate a
reversal in this case. There, the Third District reversed a conviction
when the trial court allowed a strike based solely on the venireperson’s
last name, connoting membership in the Jewish faith. It did so relying

                                    29
on State v. Alen, 616 So. 2d 4512 (Fla. 1993), and yet it was unclear
whether the venireperson in Joseph was even a member of the Jewish
faith.

   The majority attempts to distinguish Rodriguez v. State, 826 So. 2d
494 (Fla. 4th DCA 2002), by suggesting the State’s strike in that case
was based solely on the prospective juror’s occupation. That occupation
happened to be of a religious nature. And, the State’s concern that
someone in a religious occupation might have difficulty being fair and
impartial is no different than someone of a religious background having
the same difficulty due to their religious beliefs.

    Whatever spin the majority wants to place on Davis, one truth is self-
evident. Davis held that Batson should not “be extended to peremptory
strikes on the basis of religion.” 504 N.W. 2d at 767.

   It did so because the peremptory challenge is necessary when a
cause challenge is denied by the court. Id. at 770. It did so because
excusing some unbiased prospective jurors “is an affordable price to pay
for removing doubts about a particular juror’s impartiality and
competence . . . .” Id. It did so to allow “the parties to exercise their
own intuitive judgment with respect to perceived juror bias.” Id.

    It did so because “[t]he use of the peremptory strike to discriminate
purposefully on the basis of religion does not . . . appear to be common
and flagrant.” Id. at 771. It did so because “there is no indication that
irrational religious bias so pervades the peremptory challenge as to
undermine the integrity of the jury system.” Id.

   It did so because

         when religious beliefs translate into judgments on the merits
         of the cause to be judged, it is difficult to distinguish . . .
         between an impermissible bias on the basis of religious
         affiliation and a permissible religion-neutral explanation. . . .
         A juror’s religious beliefs are inviolate, but when they are the
         basis for a person’s moral values and produce societal views
         . . . , it would not seem that a peremptory strike based on
         these societal views should be attributed to a pernicious
         religious bias.

   Id.



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    And last, the majority suggests that striking a prospective juror based
solely on membership in a religion, “no matter what the juror says during
voir dire, is an impermissible ‘religious test.’” I respectfully disagree.
What the prospective juror says during voir dire is critical to the
determination of whether a strike is pre-textual or genuine. What the
prospective juror says cannot simply be ignored. Indeed, our supreme
court has instructed: “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).” Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (emphasis
added).

   Here, the prospective juror acknowledged that if she were required to
sentence the defendant, she would have difficulty. The prospective juror
acknowledged being a victim of a burglary. The prospective juror
acknowledged that her brother was currently serving time having been
convicted in the same jurisdiction. The prospective juror said she could
convict the defendant if the evidence was clear and concise.

   While her words may not have been legally precise, when all of these
factors are taken into account, it cannot be said that the State’s strike
was based solely on the prospective juror’s religion. For that reason, I
dissent from the majority’s decision to reverse. I would affirm the
conviction and sentence.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing




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