        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           MARVIN HARRIS,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-4741

                             [May 27, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;     Barry    Cohen,      Judge;     L.T.    Case     No.
502011CF012984AXXXMB.

  Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   The appellant, Marvin Harris, was charged with attempted first degree
murder with a deadly weapon, carjacking with a deadly weapon, robbery
with a deadly weapon, fleeing or attempting to elude (high speed
reckless), grand theft of a motor vehicle, and resisting an officer without
violence. He was acquitted on the most serious charges but was
convicted on three felonies and one misdemeanor. Had he been found
guilty as charged, Harris would have faced life imprisonment. Having
been found guilty of the less serious crimes, he was sentenced to 9.5
years. On appeal, Harris contends that the trial court erred in overruling
his objection to the state’s peremptory challenge to an African-American
venireperson because the state failed to provide a genuine, race-neutral
reason for the strike. We find no abuse of discretion and, on the
contrary, find the required on-the-record analysis performed by the trial
judge to be quite cogent. We therefore affirm.

   The alleged victim (and essentially, state’s key witness) had himself
been previously convicted of eight felonies.1 Harris’s defense strategy
included self-defense and the theory that the victim was engaging or
preparing to engage in felonious activity at the time of the alleged crime.
Both Harris and the victim gave vastly divergent scenarios as to the
events that transpired on the day that led to a charge of attempted
murder.

   As framed by the state and defense, the jury was ultimately going to
be left to decide if Harris was: (1) himself, the actual victim and was
acting lawfully within his right of self-defense or, as charged, (2) the
perpetrator of a heinous act of attempted murder. Thus, the trial’s all-
important credibility dynamic was all the more pronounced and vital to
each side.

    During voir dire, defense counsel asked the subject prospective juror
if she believed “that a person who has been charged with a felony in the
past is more likely to commit a crime in the future,” and she responded
affirmatively. The state ultimately exercised a peremptory challenge
against her and defense counsel requested a race-neutral reason. The
state responded by citing the prospective juror’s pre-conceived notion as
to her “once a criminal; always a criminal supposition.” The trial court
overruled the defense objection to the state’s peremptory challenge.

    The appropriate standard of appellate review for determining whether
there is a likelihood of racial discrimination in the use of peremptory
challenges is abuse of discretion. Sch. Bd. of Broward Cnty, Fla. v.
Trintec Constr., Inc., 936 So. 2d 655, 657 (Fla. 4th DCA 2006). “[T]he
trial court’s decision turns primarily on an assessment of credibility and
will be affirmed on appeal unless clearly erroneous.” Melbourne v. State,
679 So. 2d 759, 764-65 (Fla. 1996) (footnote omitted).

   In Melbourne, the Florida Supreme Court set forth the steps for
analysis when a party objects to the use of a peremptory challenge on the
basis that it was racially discriminatory:

      A party objecting to the other side’s use of a peremptory
      challenge on racial grounds must:          a) make a timely
      objection on that basis, b) show that the venireperson is a
      member of a distinct racial group, and c) request that the
      court ask the striking party its reason for the strike. If these
      initial requirements are met (step 1), the court must ask the

1 At the time of the incident and at the time of his testimony, the victim was
interestingly still on federal probation.

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      proponent of the strike to explain the reason for the strike.

      At this point, the burden of production shifts to the
      proponent of the strike to come forward with a race-neutral
      explanation (step 2). If the explanation is facially race-
      neutral and the court believes that, given all the
      circumstances surrounding the strike, the explanation is not
      a pretext, the strike will be sustained (step 3). The court’s
      focus in step 3 is not on the reasonableness of the
      explanation but rather its genuineness. Throughout this
      process, the burden of persuasion never leaves the opponent
      of the strike to prove purposeful racial discrimination.

Id. at 764 (footnotes omitted). “Relevant circumstances may include—
but are not limited to—the following: the racial make-up of the venire;
prior strikes exercised against the same racial group; a strike based on a
reason equally applicable to an unchallenged juror; or singling the juror
out for special treatment.” Id. at 764 n.8.

    In the proceedings below, the trial court properly applied the requisite
Melbourne analysis. After defense counsel objected and requested the
court to elicit from the state a race-neutral reason for the peremptory
strike, the court inquired as follows:

      THE COURT:         Okay. So I have to do it this way. I just
                         need first a facially neutral reason from
                         the state, just facially neutral.

      THE STATE:         Your Honor, she said that “if you commit a
                         felony in the past you’re likely to commit a
                         felony in the future.” Our victim is a
                         convicted felon.

      THE COURT:         Okay. That is a facially neutral reason, so
                         I need to next consider the genuineness.
                         My recollection under the case law is that
                         I have to look at [the Melbourne] factors
                         and any others that the lawyers want me
                         to. The . . . first is was she singled out for
                         special type of questioning? She was not.
                         Did a person give an equal . . . equally --
                         an equal answer that wasn’t struck? The
                         answer is no. The [third] is whether there
                         were -- whether there were prior strikes of

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                        the same category? And I don’t know, did
                        the state strike -- it’s an objective now --
                        did the state strike other African-American
                        women?

      THE STATE:        No, Your Honor.

      THE COURT:        . . . Based on that it would appear
                        objectively that there’s no reason to find
                        the strike not to be genuine. But I would
                        entertain any argument by the defense.

    Defense counsel then argued that he asked that question to protect
his client, and that one other African-American woman was stricken,
which the trial court noted for the record. The trial court then continued
its analysis, reasoning that such a concern applied equally to the state:

      THE COURT:        [W]e don’t know if the defendant will
                        actually testify or not. But even if he does,
                        while that may be a concern to the
                        defense, it’s likewise a concern to the
                        state.   So on an objective analysis, it
                        would appear that it’s facially neutral and
                        [] applying the Melbourne criteria, it would
                        appear that it would pass the test of
                        genuineness based on the criteria in the
                        case law.

                        . . . [T]he Court overrules the objection,
                        and permits the state’s strike.

    The state’s race neutral reason for striking the potential African-
American juror was her explicit statement that she believed that a person
who committed a felony in the past was more likely to commit a felony in
the future. This was clearly a legitimate, race-neutral reason for the
strike because the victim had been previously convicted of eight felonies,
and in Harris’s version of the events, Harris was not engaged in criminal
activity and instead was simply defending himself while the victim was
engaging in felonious activity.        Accordingly, the reason for the
peremptory strike was both facially race-neutral and genuine, as it was
directly relevant to the credibility of the victim—again, the state’s key
witness in its prosecution of Harris.

   “Peremptory   challenges   ‘are   presumed   to   be   exercised     in   a


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nondiscriminatory manner.’” Hoskins v. State, 965 So. 2d 1, 7 (Fla.
2007) (quoting Jones v. State, 923 So. 2d 486, 490 (Fla. 2006)). “[T]he
appropriate standard for appellate review for determining the threshold
question of whether there is a likelihood of racial discrimination in the
use of peremptory challenges is the abuse of discretion standard.” Id.
(quoting Files v. State, 613 So. 2d 1301, 1304 (Fla. 2006)). Moreover,
“the trial court is in the best position to assess the genuineness of the
reason advanced, and the decision will be affirmed unless clearly
erroneous.” Nowell v. State, 998 So. 2d 597, 602 (Fla. 2008); Melbourne,
679 So. 2d at 764-65 (stating that the trial court’s decision turns
primarily on an assessment of credibility and will be affirmed on appeal
unless clearly erroneous).

   Furthermore, in determining whether a reason is genuine, we also
stated in Young v. State, 744 So. 2d 1077 (Fla. 4th DCA 1999):

      A trial court must analyze a subjective issue – whether a
      proffered explanation for a challenge is a pretext, which
      means that it conceals an intent to discriminate based on
      race. As the supreme court recognized, identifying the true
      nature of an attorney’s motive behind a peremptory strike
      turns primarily on an assessment of the attorney’s
      credibility. In our legal system, credibility is a matter solely
      within the purview of a finder of fact. For this reason, a trial
      judge’s ruling on the “genuineness” of a peremptory
      challenge “will be affirmed on appeal unless clearly
      erroneous.”

Id. at 1082 (emphasis added) (internal citations omitted).

    Based on our review of the record including, most importantly, the
trial court’s on-the-record analysis, we affirm.

   Affirmed.

STEVENSON and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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