          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-501
                  _____________________________

JEFFREY ALLEN WEDDINGTON,
II,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                            April 9, 2019

WETHERELL, J.

     Appellant was convicted of sexual battery, battery, and false
imprisonment and sentenced to 25 years in prison followed by 10
years of sex offender probation. Appellant raises two issues on
appeal: (1) whether comments made by the trial judge after the
jury was selected amount to fundamental error, and (2) whether
Appellant’s dual convictions for battery and sexual battery are
barred by double jeopardy. We affirm the second issue without
discussion, and we affirm the first issue for the reasons that follow.

                               Facts

    Appellant was charged with sexual battery, battery, and false
imprisonment for an incident during which he beat his girlfriend
and forced her to perform oral sex on him. The incident lasted for
2½ to 3 hours and took place in multiple locations in the mobile
home that Appellant and the victim shared.

     During jury selection, the prosecutor asked the prospective
jurors whether any of them would require more than witness
testimony in order to convict Appellant. “[A] lot of people”
answered yes to this question, and over defense counsel’s objection,
the trial judge struck five 1 of the prospective jurors for cause
because their affirmative responses to the prosecutor’s question
showed that they would not be able to follow the law. 2

   After the jury was selected, the trial judge made the following
comments:

        Our jury system only works if it is supported and
        honored by our citizens. For those of you who came in
        this morning, some of whom I believe had a
        determination not to serve, shame on you. Other than
        taking our money for taxes, the government does not
        require much of us. We don’t even require military
        service anymore. We don’t even require you to vote.
        But, as I mentioned to you on Friday, service on a jury
        is both a civic and patriotic obligation which all good
        citizens should perform, so I’m always puzzled by
        prospective jurors who quickly announce, I can’t do the
        job, I can’t be fair and impartial. I’m troubled by
        prospective jurors who announce the defendant is
        guilty. You’ve heard no evidence whatsoever, so the
        mere fact that the State charges someone with a crime
        and seats him at the defense table is enough for you to
        declare he’s guilty without a trial, the State has to
        prove absolutely nothing.




    1  The judge rejected the prosecutor’s for-cause challenge to a
sixth prospective juror who was “in the same category.”
    2   This ruling was not challenged on appeal.

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      I don’t believe any of us think that we will be seated at
      the defendant’s chair, but you should stop and reflect
      on what you would want to happen should you be
      seated there. Would you want citizens who believe in
      this system who are required to uphold the law to sit
      in judgment on you?

      And for those of you who demand more than what the
      State requires, that is that testimony of a witness is
      insufficient to convict someone, imagine yourself alone
      with me in this courtroom and I walk over and pick up
      my gavel, which is a hefty little thing, and I knock you
      on the head. I'm innocent, because your only case is
      your own testimony, and for many, many, many of you
      who responded today, that is insufficient for the State
      to bring its case against the defendant.

      If you're not seated to my right, you are excused from
      your jury summons. I appreciate you coming down
      Friday for jury qualifications. You are excused today,
      but I would encourage you to stop and think a moment
      about what our form of government means, what your
      obligations are to support it, and how you responded
      today. Thank you. You are excused.

     Although these comments were directed to the prospective
jurors who were being excused, they were made in the presence of
the jurors who had been selected to serve on the jury. Defense
counsel did not object to the comments, nor did counsel object to
the jury before it was sworn.

     The case proceeded to trial at which the jury found Appellant
guilty as charged. The trial judge adjudicated Appellant guilty and
imposed his sentence. This appeal followed.

                             Analysis

     Because Appellant did not object to the comments made by the
trial judge at the conclusion of jury selection, we review the
comments for fundamental error. Grigg v. State, 230 So. 3d 943,
945 (Fla. 1st DCA 2017). Fundamental error is error which goes

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to the essence of a fair and impartial trial and is so fundamentally
unfair as to amount to a denial of due process. Id. A trial judge’s
improper participation in jury selection can render a trial unfair
and result in fundamental error. Id.

     Appellant     argues    that    this    case  is    “virtually
indistinguishable” from Grigg in which we held that comments
made by the trial judge during jury selection amounted to
fundamental error. We disagree because although the same trial
judge was involved in both cases, the judge’s comments in this case
are materially different from those in Grigg.

     In Grigg, after several prospective jurors indicated that they
could not convict the defendant without physical evidence, the trial
judge asked the venire to consider a hypothetical set of facts that
mirrored the facts of the defendant’s case. Id. The judge told the
prospective jurors to consider the circumstances as though they
were victims of the crimes, and the judge’s comments made clear
his view that the defendant in his hypothetical should not go free.
Id. at 946. Then, before dismissing the unselected members of the
venire, the judge reiterated that it was incorrect to think that the
state could not bring a case without physical evidence because the
absence of physical evidence did not prove that no crime had been
committed. Id. at 947.

     On appeal, we identified two “fairness problems” arising from
the trial judge’s comments: (1) by stating his views on how the
hypothetical case that mirrored the defendant’s case should be
decided, the judge lent his position’s weight and influence to the
prosecution and jeopardized the jury’s ability to impartially hear
and decide the defendant’s case; and (2) the judge’s hypothetical
was essentially an improper “golden rule” argument that invited
the jurors to place themselves in the victim’s position during the
crime and imagine the victim’s suffering. Id. at 946. Additionally,
we noted that the judge’s chastising comments before dismissing
unselected members of the venire compounded these problems by
reinforcing a prosecution-friendly view of the defendant’s case. Id.
at 947.

    Those “fairness problems” are not present in this case. First,
the trial judge’s gavel hypothetical in this case bears no

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resemblance to the sexual battery and battery charges against
Appellant, and the judge’s comments about the hypothetical did
not express his view on the weight of the evidence, the credibility
of a witness, or the guilt of Appellant. Second, the judge did not
express a prosecution-friendly view of the Appellant’s case and his
comments simply emphasized the importance of jury service and
the rule of law, including the presumption of innocence and the
state’s burden of proof. Accordingly, under these circumstances,
the trial judge’s comments do not amount to fundamental error.

     That said, if the trial judge felt compelled to deliver a message
about the importance of jury service and the rule of law to the
excused prospective jurors, the better practice would have been for
the trial judge to deliver this message outside of the presence of
the selected jurors. The message was intended for the excused
prospective jurors, not the selected jurors who would soon be
performing their civic duty by serving on Appellant’s jury.
Additionally, there was no need to lecture the selected jurors about
the importance of the presumption of innocence and the burden of
proof because they would be instructed on those issues at trial.

                            Conclusion

    For the reasons stated above, we affirm Appellant’s
convictions and his resulting sentences.

    AFFIRMED.

LEWIS and WINOKUR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.


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Ashley Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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