There’s still a chance judge!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 23

JUNE 7, 2024

BEFORE THE JURY IS SWORN, THE TRIAL COURT MAY NOT INFRINGE UPON A PARTY’S RIGHT TO CHALLENGE ANY JUROR.

Frederick v. State, 49 Fla. L. Weekly D1122 (Fla. 4th DCA May 29, 2024):

During jury selection, the defense accepted the jury panel without exercising any cause or peremptory challenges. After the panel returned to the courtroom, but before the jury was sworn, defense counsel moved to peremptorily strike a prospective juror for the first time. Counsel explained that he had mistakenly believed the juror had already been stricken and realized his oversight when the juror returned.

The court denied the strike, explaining it would be unfair to allow the defense to challenge a juror after accepting the jury the panel. Shortly thereafter, the clerk swore in the jury, which included the contested juror.

While the trial court does have broad discretion in ruling on the propriety of peremptory challenges, the trial judge may grant or deny an additional peremptory challenge even after the jury is sworn in but before the evidence is presented (under the rules of criminal procedure). However, before the jury is sworn, the trial judge has no authority to infringe upon a party’s right to challenge any juror, either peremptorily or for cause.

Because the trial court erroneously refused the strike before swearing in the jury, the court reversed the conviction and remanded for a new trial.

APPELLATE COURT REVERSES TRIAL COURT FOR CONDUCTING A DEFICIENT MELBOURNE INQUIRY, WHICH LED COURT TO ERRONEOUSLY DENY A DEFENDANT’S PEREMPTORY STRIKE OF A PROSPECTIVE JUROR.

Hastings v. State, 49 Fla. L. Weekly D1128 (Fla. 4th DCA May 29, 2024):

The defendant in the case had been charged with driving with a suspended license and resisting an officer without violence.

A prospective juror in voir dire, an Indian-American advised that enjoys watching crime shows like CSI, and generally finds the police to be trustworthy; a question posed to everyone on the venire.

Defense counsel sought to excuse the prospective juror peremptorily. When the state asked for a race-neutral reason for the challenge, the defendant offered the prospective juror’s belief in the trustworthiness of the police and his penchant for CSI.

The trial court found there were race-neutral reasons, concluding that the challenge was speculative and not genuine. The defendant challenged his conviction on appeal.

The appellate court reiterated the three-step analysis the law requires under Melbourne for evaluating challenges involving minority groups (as well as gender or religious based challenges). It noted that every challenge requires an on-the-record analysis.

Step one of the three step process requires an objection showing that the member of the venire is part of a protected class. Step two requires that the proponent of the strike provide a race-neutral reason for the strike.  Step three then requires the trial court to examine whether the explanation is facially race-neutral, and if given all the circumstances surrounding the strike, the explanation is or is not a pretext.

Prior courts have found that potential jurors’ views on police and an interest in CSI are both race-neutral reasons for excusing a potential juror, rendering the trial court’s ruling on that point error.

The trial court also failed to make any inquiry of the state, instead expressing the court’s own belief that the strike was not genuine and was speculative. In so doing, the trial court implicitly and erroneously concluded that the state met its burden of proving purposeful racial discrimination on the record, thereby requiring reversal of the conviction.

TRIAL COURT PROPERLY CONCLUDED THAT DEFENDANT DRIVER WAS NOT ACTING WITHIN THE COURSE AND SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT — RECORD ALSO CLEARLY DEMONSTRATED THAT CONTRACTOR DEFENDANT WAS NOT THE OWNER, RENTER, LESSOR, OR BAILOR OF THE VEHICLE BEING DRIVEN AT THE TIME OF THE ACCIDENT.

Royal Plus, Inc. v. Wood, 49 Fla. L. Weekly D1139 (Fla. 3rd DCA May 29, 2024):

A minor child was seriously injured in an accident with a vehicle driven by handyman/day laborer. At the time of the accident, the defendant driver was traveling from defendant, Royal Plus’s, work site at a motel in Key West, to the warehouse in Key West where he and other workers were staying upon concluding their workdays. When the handyman left the motel that evening, he had clocked out for the day and was not compensated for his travel time.

Royal Plus subcontracted temporary labor work with “Handyman Julio LLC.” The defendant driver was one of Handyman Julio’s day laborers.

The driver was operating a van owned by another one of Handyman Julio’s employees. Due to the lack of available lodging in Key West following a hurricane, most of the day laborers were living at the Royal Plus warehouse or at the home of the Royal Plus president.

The plaintiffs alleged that the driver operated the vehicle without a valid driver’s license and with the express or implied consent of the various defendants, including Royal Plus and Handyman Julio. Plaintiff alleged that the driver was acting within the course and scope of his employment with those two entities when he collided with the plaintiff’s vehicle.

The trial court concluded on summary judgment that the driver was not in the course and scope of his employment while he was driving back to the warehouse to sleep, because he had clocked out for the day. The court also concluded that Royal Plus did not control the driver as he was not performing any employment duties.

The trial court further properly ruled there was no record evidence that the driver was required to report to the warehouse for employment-related duties, and was subject to the “going and coming” rule, which ordinarily insulates an employer from liability for accidents that an employee causes while driving to or from work.

The trial court then found that there was no bailment against Royal Plus because it was not in control of the vehicle at the time of the accident. As to the negligent hiring claim, the trial court ruled that the fact that the driver was driving on a suspended license was not material, because Royal Plus had no notice of that fact nor should it have.

Because the driver was not in the course and scope of his employment, and because the record evidence showed that Royal Plus was never the owner, renter, lessor, or bailor of the subject vehicle, and the person who loaned it was the bailor of the vehicle, the court affirmed the trial court’s entry of summary judgment in favor of the defendants.

NO ERROR IN DENYING A MOTION TO SEEK LEAVE TO FILE AN AMENDED COMPLAINT JUST A LITTLE OVER A WEEK BEFORE TRIAL WAS SET TO BEGIN.

Marathon Lodge v. Persi, 49 Fla. L. Weekly D1150 (Fla. 3rd DCA May 29, 2024):

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