NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TAVARES WAYNTEL SPENCER, JR., )

)

Appellant, )

)

v. ) Case No. 2D14-316

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed March 18, 2016.

Appeal from the Circuit Court for 

Hillsborough County; Emmett L. Battles, 

Judge.

Howard L. Dimmig, II, Public Defender, 

and Dan Hallenberg, Special Assistant 

Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marilyn Muir Beccue, 

Assistant Attorney General, Tampa, for 

Appellee.

ALTENBERND, Judge.

Tavares Wayntel Spencer, Jr., appeals his judgments and sentences for 

attempted first-degree murder, robbery with a firearm, aggravated battery with great 

bodily harm, and aggravated assault with a deadly weapon. The only issue that he 

raises on appeal is whether the trial court properly ruled upon his objections to the 
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State's exercise of two peremptory challenges of African-American members of the 

venire. This case requires this court to consider the actions that must be taken by the 

opponent of a peremptory challenge to preserve a claim under Melbourne v. State, 679 

So. 2d 759 (Fla. 1996), after the proponent of the challenge provides a race-neutral 

reason. In other words, it requires us to consider the actions the opponent must take to 

preserve a claim of error during step 3 of the Melbourne procedure. We conclude that

the supreme court in Hayes v. State, 94 So. 3d 452 (Fla. 2012), has not placed an 

automatic burden on the trial court to perform a full genuineness analysis on the record 

in every instance in which a party objects to a peremptory challenge and the proponent 

provides a facially neutral reason. If an opponent wants the trial court to determine 

whether a facially neutral reason is a pretext, the opponent must expressly make a 

claim of pretext and at least attempt to proffer the circumstances that support its claim. 

Because the defendant did not preserve a Melbourne issue in this manner, we affirm. 

I. THE UNDERLYING FACTS

Although the issue on appeal is limited to events during jury selection, the 

legal analysis used to test the propriety of a peremptory challenge can be based to 

some degree on the nature of the case and the factual issues that will confront the jury. 

Thus, we briefly explain the evidence at the trial in this case. 

When Mr. Spencer was sixteen years old, he met the victim, who was a 

few years older than Mr. Spencer. Both Mr. Spencer and the victim are AfricanAmerican. On the day that they met, they texted extensively about the possibility of a 

sexual encounter. The victim was hoping to be compensated for this encounter. Only 

after a number of communications did the victim disclose her transgender status. This 
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complication did not end the communications, and the two ultimately met in person the 

following day. Mr. Spencer led the victim into a secluded area. At this point in the story, 

the victim's recollection of the incident and Mr. Spencer's are in complete conflict. 

The victim testified that Mr. Spencer pointed a handgun at her and 

ordered her to the ground. She gave him her cellphone, and he took her purse. He 

emptied her purse and ultimately took both her cellphone and her wallet, which

contained a small amount of money. While she was still on the ground, he fired the gun 

twice, striking her in the hip with one shot. She got up and ran, jumping a fence. Mr. 

Spencer was running behind her, and he fired the gun another three or four times. She 

believed one bullet grazed her back. She ran to an occupied home, and Mr. Spencer 

did not pursue her further.

Mr. Spencer testified at trial. He claimed that the victim was actually the 

one who cornered him in the secluded area. He retreated to the fence. According to 

Mr. Spencer, the victim was making unwanted sexual advances and would not stop. To 

defend himself, Mr. Spencer pulled out a .22 caliber handgun that he had gotten from a 

friend the night before for protection. He pulled out the gun because he was afraid. He 

testified that the victim told him the handgun was unloaded, and she tried to take the 

gun from him when it accidentally discharged. He then fired another warning shot in the 

air. He fled without taking any property from the victim. 

The victim's testimony was more consistent with the physical evidence 

and the text messages from both cellphones, which were obtained from the wireless 

providers and introduced into evidence. The jury apparently accepted the victim's 
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version and found Mr. Spencer guilty. Due to the handgun, Mr. Spencer was sentenced 

to four concurrent twenty-five-year terms of imprisonment. 

II. THE MELBOURNE CHALLENGES DURING VOIR DIRE

During voir dire, the State used peremptory challenges to strike at least 

two African-American members of the venire. When the State used a peremptory 

challenge on venireperson 16, the transcript reflects the following: 

[DEFENSE COUNSEL]: Judge, [venireperson 16], I 

believe was an African American female. This is the second 

African American stricken by the state for peremptory.

1

 I 

would ask for a race-neutral reason.

[THE COURT]: Is that as to number 16?

[DEFENSE COUNSEL]: It is.

THE COURT: There's an objection. The burden 

shifts to the state.

[ASSISTANT STATE ATTORNEY]: During individual 

voir dire at the bench, [venireperson 16] indicated that she 

had been arrested for battery, battery, domestic violence,

specifically.

THE COURT: Just a moment. Let me look at my 

notes.

[DEFENSE COUNSEL]: Judge, that is correct.

THE COURT: You may respond.

[DEFENSE COUNSEL]: I have no response.

 

1The record does not support defense counsel's claim that the State's 

requested peremptory strike was the second such request involving an AfricanAmerican. Perhaps the race of an earlier challenged venireperson is not revealed by 

the record. We note that the State did challenge without opposition an earlier AfricanAmerican venireperson for cause. Although it was not necessary, the State provided a 

neutral reason for that unopposed challenge for cause. Perhaps that is the challenge 

that defense counsel recalled. 
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THE COURT: The state has indicated a race-neutral 

reason. The court finds no pretext in the exercise of this 

peremptory challenge. The objection to the exercise of a 

peremptory as to [venireperson] 16 is overruled.

Shortly thereafter, the State used a peremptory challenge to strike 

venireperson 11, who was also African-American. As to this strike, the transcript 

reflects the following:

THE COURT: State exercises a peremptory as to 

[venireperson] 11.

[DEFENSE COUNSEL]: Judge, I'm sorry to interrupt,

but I would ask for a race-neutral reason, him being an 

African American male.

THE COURT: Burden shifts. Go ahead.

[ASSISTANT STATE ATTORNEY]: During individual 

voir dire, [venireperson 11] did indicate that he had a friend 

who was arrested for breaking and entering, B and E.

[DEFENSE COUNSEL]: He also indicated that he 

had a friend that was killed, and I would also say he did say 

numerous times he could be fair and impartial.

THE COURT: Okay. I note that the standard here is 

whether or not the state has indicated a race-neutral reason,

whether the court sees or finds or perceives a pretext in the 

exercise of that peremptory challenge. The court finds no 

such pretext, finds that you've stated a race-neutral reason. 

The objection is overruled as to the exercise [of] that 

peremptory challenge.

At the end of the selection process when accepting the jury, Mr. Spencer's 

attorney made a proper Joiner objection concerning these two peremptory challenges. 

See Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). Following entry of the judgments 

and sentences, Mr. Spencer appealed to this court.
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III. A BRIEF OVERVIEW OF THE PROCEDURE FOR OBJECTIONS

TO PEREMPTORY CHALLENGES

The legal literature addressing methods to avoid discrimination in

peremptory challenges is extensive. In this opinion, we will not address the 

developments before Melbourne v. State, 679 So. 2d 759 (Fla. 1996), but the earlier 

cases warrant study. See, e.g., State v. Johans, 613 So. 2d 1319 (Fla. 1993); State v. 

Slappy, 522 So. 2d 18 (Fla. 1988), receded from by Melbourne, 679 So. 2d at 765; 

State v. Neil, 457 So. 2d 481 (Fla. 1984), receded from in part by Johans, 613 So. 2d at 

1321.

After the U.S. Supreme Court adopted a three-step process in Purkett v. 

Elem, 514 U.S. 765 (1995), to clarify the procedures for handling a Batson2 challenge in 

federal court, the Florida Supreme Court adopted a comparable three-step procedure 

for use in Florida. See Melbourne, 679 So. 2d at 763-65. In Hayes v. State, 94 So. 3d 

452 (Fla. 2012), the supreme court extensively discussed and clarified the procedure

articulated in Melbourne, but it did not actually change the procedure.

In both the trial courts and the appellate courts, two important rules set the 

backdrop for this process: (1) peremptory challenges are presumed to be exercised in a 

nondiscriminatory manner and (2) throughout the process, the burden of persuasion 

never leaves the opponent of the strike to prove purposeful discrimination. See Hayes,

94 So. 3d at 461.

The supreme court articulated the three-step process in Melbourne as 

follows: 

 

2Batson v. Kentucky, 476 U.S. 79 (1986).
- 7 -

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 

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 raceneutral 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.

Melbourne, 679 So. 2d at 764 (footnotes omitted).

The trial court's decision is reviewed on appeal with a rather deferential 

standard of review. As the supreme court recently summarized in Poole v. State, 151 

So. 3d 402, 409 (Fla. 2014): 

A trial court's decision to allow a peremptory strike of 

a juror is based primarily on an assessment of credibility. 

King v. State, 89 So. 3d 209, 229 (Fla. 2012) (citing 

Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996)), cert. 

denied, ––– U.S. ––––, 133 S. Ct. 478, 184 L. Ed. 2d 300 

(2012). As a reviewing court, this Court must "acknowledge 

that peremptory challenges are presumed to be exercised in 

a nondiscriminatory manner." Nowell v. State, 998 So. 2d 

597, 602 (Fla. 2008). On appeal, the appropriate standard 

to determine the likelihood that a peremptory challenge was 

used discriminatorily is abuse of discretion. Id. As the trial 

court is generally in the best position to assess the 

genuineness of the reason advanced, the decision will be 

affirmed unless clearly erroneous. Id. Although appellate 

courts need to defer to a trial court's credibility assessment, 

this Court has recognized that this deference does not 

require this Court to "rubber-stamp" a trial court's ruling, 

which is not supported by the record. See Hayes v. State,

94 So. 3d 452, 462 (Fla. 2012); Nowell, 998 So. 2d at 602.
- 8 -

Such a deferential standard of review can leave the judicial system open 

to abuse when the record from the trial court is inadequate. This problem was 

discussed at some length in Hayes, a case in which the trial court denied the 

defendant's request for a peremptory challenge while placing the burden of persuasion 

on the defendant. See Hayes, 94 So. 3d at 456-58, 462-64. The district court of appeal 

affirmed despite the State's concession of error on appeal. Id. at 458. In reversing the 

district court, the supreme court stated: "Compliance with each step is not discretionary, 

and the proper remedy when the trial court fails to abide by its duty under the 

Melbourne procedure is to reverse and remand for a new trial." Hayes, 94 So. 3d at

461 (citing Welch v. State, 992 So. 2d 206, 211-13 (Fla. 2008)). Mr. Spencer maintains 

that this statement entitles him to a reversal in this case. We do not agree. 

IV. A CLARIFICATION OF THE THREE STEPS IN MELBOURNE

In reading both case law and transcripts, it seems to this court that some 

confusion exists about the three steps explained in Melbourne. We believe that the 

confusion arises from the combination of two of those steps in the following description 

in Melbourne: 

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, 679 So. 2d at 764 (footnote omitted).

It is helpful to think of the three "steps" as three decisions made by the 

trial judge during the Melbourne hearing. Phrased as questions, those decisions are: 

1. Has the opponent properly invoked the Melbourne

procedure by (a) objecting, (b) demonstrating the 

venireperson's protected classification, and (c) requesting 
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the court to have the proponent of the challenge state a 

neutral reason for it? 

2. Has the proponent of the peremptory challenge provided 

a facially neutral explanation for the challenge?

3. Has the opponent of the challenge, following the facially 

neutral explanation, met its burden of persuasion to establish 

that the facially neutral reason is a prextext?

In a case where the State's peremptory challenge is ultimately granted 

and the defendant's objection is overruled at the end of a full Melbourne hearing, the

actual decision-making process involves more than three components. The three 

decisions seem to involve the following components: 

In step 1:

(a) The State moves to exercise a peremptory challenge for 

venireperson X.

(b) The defendant objects, showing that venireperson X falls 

within a protected class and requesting a neutral reason for 

the peremptory challenge.

(c) The court finds the defendant's objection to be sufficient.

In step 2: 

(a) The court asks the State for a neutral reason for the 

peremptory challenge.

(b) The State provides the reason or reasons that it claims 

are neutral.

(c) The defendant is given an opportunity to respond.

(d) The court determines that the reason is facially neutral.

In step 3:

(a) The court asks the defendant if he wishes to make a 

genuineness objection.
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(b) If the defendant chooses to make that objection, the 

defendant is permitted to make an argument and explain the 

facts and circumstances that support the defendant's claim 

that the facially neutral reason is a pretext.

(c) The State is given an opportunity to respond.

(d) The court makes its ruling that the facially neutral reason 

for the peremptory strike is genuine, explaining as necessary 

the basis for that ruling.

(e) Finally, if necessary, the defendant asks the court to 

provide any additional finding or clarity in the ruling to 

preserve the issue for appeal. 

Courts have had a tendency to intermingle steps 2 and 3 of the Melbourne

analysis.

3

Indeed, the transcript in this case as to venireperson 11 demonstrates that 

the trial court announced the judicial decision for step 3 before it announced the 

decision for step 2. In most cases, the attorneys and the trial court manage to complete 

the steps required for the first two judicial decisions without much difficulty. The 

difficulty arises during the five components of the step 3 decision under the Melbourne

analysis. 

 

3See, e.g., Daniel v. State, 697 So. 2d 959, 960 (Fla. 2d DCA 1997) (when 

the defense objected to the State's reasons for its peremptory challenges as racially 

motivated, the trial court concluded that the State's reasons were "race neutral"); Landis 

v. State, 143 So. 3d 974, 976-77 (Fla. 4th DCA 2014) (the trial court made a finding that 

the State's reason for its peremptory was "genuine," which actually appears to have 

been a finding that the reason was facially race neutral); Cook v. State, 104 So. 3d 1187 

(Fla. 4th DCA 2012) (the trial court and the parties all appear to have intermingled steps 

2 and 3); Sharp v. State, 789 So. 2d 1211, 1212 (Fla. 5th DCA 2001) (the trial court 

appears to have skipped to a determination of pretext before deciding whether the 

reason proffered by the defense as the proponent was facially race neutral). 
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V. THE OPPONENT'S BURDEN OF PERSUASION INCLUDES AN OBLIGATION TO 

OBJECT TO DEFICIENCIES IN MELBOURNE'S STEP 3 PROCESS

There is little question that the five components of the step 3 decision 

described in the preceding section are sometimes not fully performed in the trial court. 

Trial courts sometimes rule on the issue of "genuineness" even when the opponent has 

not suggested that the neutral reason was a pretext. Judges sometimes reject a claim 

of pretext without giving the opponent a full opportunity to argue the issue. The trial 

court ruling is often more of a legal conclusion than a series of findings about the 

circumstances surrounding the challenge. But many times these deficiencies in step 3 

are not the subject of any specific objection by the party opposing the peremptory 

challenge. This case involves such deficiencies at least as to venireperson 11, and the 

outcome of this case depends on whether the defendant, as the opponent of the 

challenge, had a burden to object to the step 3 deficiencies and to call upon the trial 

court to correct them before the conclusion of jury selection. For the reasons explained 

below, we conclude that the opponent of a peremptory challenge has such a burden. 

A. The Essence of Pretext Is Deception

There is no question that the process of performing the step 3 analysis in 

the trial court and reviewing that step in an appellate court is the most difficult part of the 

Melbourne process. Courts have tended to be indirect in explaining why this part of the 

process is so difficult. In addressing the question of "pretext," we explain that the issue

is not "reasonableness" but "genuineness." Murray v. State, 3 So. 3d 1108, 1120 (Fla. 

2009).

But a common definition of "pretext" near the time Purkett and Melbourne

were written was "a false reason or motive put forth to hide the real one; excuse." 
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Webster's New World Dictionary, Third College Edition 1067 (1988). Another was "a 

purpose or motive alleged or an appearance assumed in order to cloak the real 

intention or state of affairs." Webster's Third New Int'l Dictionary 1797 (1986).

Thus, the decision the trial court is called upon to make in step 3 has little

to do with the substance of the reason given by the lawyer that requests to strike the 

venireperson; it has to do with the lawyer's intent. The trial court is called upon to 

determine whether the lawyer presenting the explanation for the peremptory challenge, 

as an officer of the court, is concealing an improper motive. Ultimately, the question the 

trial court must answer is whether the lawyer has truthfully provided a neutral reason or 

whether the lawyer is either deceiving himself as a matter of subconscious prejudice or, 

even worse, simply lying to the court. "Genuineness," thus, is really a question of 

whether a lawyer is being disingenuous. 

It is not a pleasant task for one attorney to insist that the trial court 

determine whether another officer of the court is relying on a pretext. It is an even less 

pleasant task for the trial court to make an affirmative finding of pretext. One of the 

reasons the case law has not required trial courts to "recite a perfect script or incant 

'magic' words," see Hayes, 94 So. 3d at 464, is that appellate courts understand the 

reluctance of trial courts to make this finding. "Nevertheless, 'Melbourne does not 

relieve a trial court from weighing the genuineness of a reason just as it would any other 

disputed fact.' " Hayes, 94 So. 3d at 463 (quoting Dorsey v. State, 868 So. 2d 1192, 

1202 (Fla. 2003)).

A lawyer should not lightly claim that another lawyer's explanation for his 

peremptory challenge is pretextual. But when the circumstances and the interest of the 
- 13 -

client require this claim, the lawyer objecting to the peremptory challenge should be 

prepared to make this claim and should expect to make a complete argument 

demonstrating both to the trial court and, if need be, to the appellate court that the 

proponent of the peremptory challenge is engaging in impermissible discrimination. 

If it is truly presumed that lawyers exercise peremptory challenges in a 

nondiscriminatory manner, then the trial court should not be expected to initiate on its 

own a genuineness challenge of every facially neutral reason. This is particularly true 

when no party has responded to the neutral reason with a claim that it is a pretext. 

Given the seriousness of a charge that a lawyer is providing a pretextual reason for a 

challenge, the opponent should be expected to object to the facially neutral reason as a 

pretext. It is unquestionably the better practice for a trial court, having made a 

determination of neutrality under step 2 of the Melbourne analysis, to ask the opponent 

whether he or she wishes to challenge the genuineness of the proponent's reason, but 

we see no reason to reverse a judgment and sentence following an entire trial when the 

trial court omits this step without objection from anyone. 

B. The Circumstances Supporting a Claim of Pretext Are Often Factually 

Complex

As Justice Pariente explained for the court in Hayes:

It has been observed that "[t]he genuineness of the 

explanation is the yardstick with which the trial court will 

determine whether or not the proffered reason is pretextual."

Davis v. State, 691 So. 2d 1180, 1183 (Fla. 3d DCA 1997). 

Melbourne teaches that to assess genuineness, the trial 

court must consider all relevant circumstances surrounding 

the strike in determining whether the proffered reason for the 

strike is genuine. Melbourne, 679 So. 2d at 764 n.8. This 

Court explained in Murray v. State, 3 So. 3d 1108 (Fla.

2009), that
- 14 -

[i]n determining whether or not a 

proffered race-neutral reason for a peremptory 

strike is a pretext, the court should focus on the 

genuineness of the race-neutral explanation as 

opposed to its reasonableness.

In making a genuineness determination, 

the court may consider all relevant 

circumstances surrounding the strike. 

"Relevant circumstances may include—but are 

not limited to—the following: the racial makeup 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." [Melbourne, 679 So. 2d at 764 n.8] 

(citing State v. Slappy, 522 So. 2d 18 (Fla.

1988)); see also Booker v. State, 773 So. 2d 

1079, 1088 (Fla. 2000) ("[W]e provided a 

nonexclusive list of factors a trial court may 

consider in determining whether the reason 

given for exercising a peremptory challenge is 

genuine. . . ." (citing Melbourne, 679 So. 2d at 

764 n.8)). 

Murray, 3 So. 3d at 1120 (citations omitted).

Hayes, 94 So. 3d at 461-62 (alterations in original).

The circumstances described in Hayes and Murray are not an 

independent basis to establish pretext. Rather, they are circumstances used to 

determine the intent of the lawyer presenting the peremptory challenge. Intent is always 

a difficult factual issue; it is usually established with circumstantial evidence. It is no 

different in this context. 

Again, it is the better practice for a trial court to affirmatively ask an 

opponent to state all of the circumstances the opponent believes support a claim of 

pretext, but if the trial court omits this step, it should be incumbent upon the opponent to 

object and ask to place into the record the circumstances that it wishes the trial court to 
- 15 -

consider and the appellate court to review. Often it may seem apparent to the trial court 

that the neutral reason is not a pretext. If the court jumps ahead because of the judge's 

own thought process, it should be the opponent who has an obligation to slow the 

decision-making process and to make certain the record is adequate. 

Under Melbourne, it is the opponent of the challenge that has the burden 

of persuasion from the beginning to the end. We recognize that in step 3 it might be 

feasible to place a burden on the proponent of the peremptory challenge to demonstrate 

"genuineness," but we are not authorized to make that change in the law. 

C. The Remedy Required for Any Error in a Melbourne Hearing Is Drastic

An error in this process generally requires a new trial even if the rest of the 

trial is flawless. See Hayes, 94 So. 3d at 461 ("[W]e hold that the proper remedy in all 

cases where the trial court errs in failing to hold a [peremptory challenge] inquiry [on the 

basis of alleged discrimination] is to reverse and remand for a new trial." (alterations in 

original) (quoting Johans, 613 So. 2d at 1322)). When an error results in this type of 

drastic relief, it is important that litigants not be allowed to trap or trick the trial judge into 

reversible error by failing to make objections or by making inadequate objections. Such 

an error should not be a matter of inadvertence. The trial court needs a full and fair 

opportunity to correct or avoid an error in the procedure before the jury is sworn. Cf.

Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990) (describing the complex steps required 

to preserve as reversible error the denial of a challenge for cause). 

Thus, as we stated at the beginning of this opinion, we see no basis to 

believe that the supreme court was abandoning requirements for full preservation in 

Hayes when it stated that "[c]ompliance with each step is not discretionary, and the 
- 16 -

proper remedy when the trial court fails to abide by its duty under the Melbourne

procedure is to reverse and remand for a new trial." See Hayes, 94 So. 3d at 461. 

Compliance with the steps in Melbourne may not be discretionary with the trial court, but 

that does not relieve the opponent of the peremptory challenge of the obligation to 

object when steps are omitted or of the need to present the information necessary to 

carry the opponent's burden of persuasion. 

D. The Process Should Not Require the Trial Judge to Become an Advocate for a 

Venireperson or to Step Outside His or Her Neutral Role

In Powers v. Ohio, 499 U.S. 400, 409 (1991), the U.S. Supreme Court

held that a venireperson has an equal protection right "not to be excluded from [a petit 

jury] on account of race." The court was quite aware that a venireperson would have 

limited ability to enforce this right. Id. at 413-14. It held that a criminal defendant has

standing to raise this third-party equal protection claim for a venireperson. Id. at 415. 

The U.S. Supreme Court does not seem to have expected the trial judge 

to play the role of a venireperson's attorney. Since the Florida Supreme Court decided 

Hayes, parties now argue on appeal that Melbourne requires the trial court to 

demonstrate the circumstances of "genuineness" when the parties have not made 

arguments on the record as to those circumstances. See, e.g., Cook v. State, 104 So. 

3d 1187, 1189-90 (Fla. 4th DCA 2012) (concluding that the defendant, as the opponent 

of the strike, met his burden of persuasion in step 3 "by asking 'the state [to] explain 

why being a nurse . . . would make her unfit to be a juror on this case or have any 

bearing at all on whether she could be a juror' " (first alteration in original)). They rely 

on both the above-quoted language from Hayes as well as on the following language

from that opinion: 
- 17 -

Therefore, where the record is completely devoid of 

any indication that the trial court considered circumstances 

relevant to whether a strike was exercised for a 

discriminatory purpose, the reviewing court, which is 

confined to the cold record before it, cannot assume that a 

genuineness inquiry was actually conducted in order to defer 

to the trial court.

Hayes, 94 So. 3d at 463.

We believe that this language is being taken out of context. It is true that 

the trial courts must make the three decisions required by Melbourne if requested, but 

the parties are not entitled to sit back and have the court go through this process for 

them. It simply is not the job of the trial court to develop the circumstances that may 

weigh against the genuineness of a proposed peremptory challenge. The trial court has 

an obligation to maintain its neutrality. See, e.g., Livingston v. State, 441 So. 2d 1083, 

1086 (Fla. 1983) ("Every litigant, including the State in criminal cases, is entitled to 

nothing less than the cold neutrality of an impartial judge," and a court has the duty "to 

scrupulously guard this right." (quoting State ex rel. Mickle v. Rowe, 100 Fla. 1382, 

1385 (1930))); J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009) ("The requirement of 

judicial impartiality is at the core of our system of justice." (quoting McFadden v. State, 

732 So. 2d 1180, 1184 (Fla. 4th DCA 1999))). If the trial court is to maintain its position 

of neutrality, its job is merely to rule on this delicate and fact-intensive issue when the 

opponent has presented the issue for ruling under its burden of persuasion. 

VI. APPLICATION OF THE LAW TO THE FACTS IN THIS CASE

Reviewing the transcript concerning the challenge to venireperson 16, the

trial court properly commenced the Melbourne hearing. Defense counsel had "no 

response" when the State provided venireperson 16's prior arrest for domestic violence 
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as its neutral reason for the challenge. The trial court then expressly found that there 

was "no pretext" in the State's exercise of this peremptory challenge. It is frankly 

unclear whether the trial court thought it was ruling that the reason was facially race

neutral and merely used the wrong language, or whether it simply jumped to step 3 

without making an express ruling on step 2. Defense counsel never claimed that the 

State's reason was a pretext. Defense counsel never even attempted to offer any 

circumstance that might indicate that the State's reason for its peremptory challenge 

was pretextual. Even on appeal, the defendant has not argued that anything in the

record suggests that the State's reason for this peremptory challenge supports a theory 

that it was a pretext. The record simply does not support any preserved error as to the 

decision to allow a peremptory challenge of venireperson 16. 

The record as to venireperson 11 presents a somewhat closer question. 

The trial court again properly commenced the hearing. Both the lawyers and the trial 

court seemed to intermingle the Melbourne step 2 and step 3 determinations into a 

combined ruling. For example, defense counsel's response to the State's description of 

its neutral reason was to state that venireperson 11 had a friend who was killed and that 

venireperson 11 had claimed that he could still be fair and impartial. The response 

does not seem to have anything to do with whether the fact that venireperson 11 had a 

friend who was arrested for a breaking and entering was a facially neutral reason for the 

State to exercise a peremptory challenge. It seems instead to raise a circumstance that 

defense counsel believed may have affected whether the State's explanation was 

pretextual. It frankly is not clear to this court why the circumstance of the killed friend 

would support a theory of pretext. In its ruling, the trial court provided a reasonable 
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summary of steps 2 and 3 from Melbourne and then made its findings related to those 

steps in reverse: It found that the State's explanation was not a pretext before it 

concluded that it was facially race neutral. Defense counsel did not object to this 

process, did not ask to state the defendant's position with greater specificity, and did not 

ask either the court or the State to provide further information. If defense counsel had 

pointed out, for example, that other remaining members of the venire were white and 

had friends who had committed felonies, then that would have been important 

information. 

Although the State's explanation for its peremptory challenge would seem 

to apply to many people who are subpoenaed for jury duty, from the content of this 

record we cannot hold that the trial court abused its discretion or that its finding was 

clearly erroneous when it determined that the neutral reason was not pretextual. The 

record demonstrates that the trial court was aware that it needed to consider the issue 

of genuineness and that the parties had an opportunity to present information on that 

issue. Even if defense counsel had properly objected to genuineness and presented 

the issue for ruling, this is not a situation where the record is "completely devoid" of any 

indication that the trial court considered this issue. See Hayes, 94 So. 3d at 463, 465. 

Accordingly, we find no reversible error in the trial court's decision to permit the State to 

exercise a peremptory strike of venireperson 11.

VII. A CERTIFIED QUESTION

Many of the decisions discussing Melbourne do not expressly consider the 

burden on the opponent of a peremptory challenge to create a record establishing the 

basis for a claim of pretext. Nevertheless, we are inclined to believe that the analysis in 
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this decision and in the decision in Ivy v. State, case No. 2D14-289 (Fla. 2d DCA Mar. 

18, 2016), which we release on this same day, conflict with the First District's decision in 

Simmons v. State, 940 So. 2d 580 (Fla. 1st DCA 2006). There is at least tension 

between our analysis and that in other cases, including Smith v. State, 143 So. 3d 1194, 

1196-97 (Fla. 1st DCA 2014), Collier v. State, 134 So. 3d 1042, 1043-44 (Fla. 1st DCA 

2013), and Cook, 104 So. 3d at 1189-90. 

The process of jury selection occurs daily in our courts, and there should 

be no confusion about the relative burdens of the parties and of the court during a 

Melbourne hearing when the hearing reaches step 3. Accordingly, we certify the 

following dispositive question as one of great public importance: 

DURING A MELBOURNE HEARING, WHEN A TRIAL 

COURT FINDS THAT THE PROPONENT'S REASON FOR 

A PEREMPTORY CHALLENGE IS FACIALLY NEUTRAL, IS 

IT THE BURDEN OF THE OPPONENT (1) TO CLAIM THE 

REASON IS A PRETEXT, (2) TO PLACE INTO THE 

RECORD THE CIRCUMSTANCES SUPPORTING ITS 

POSITION, AND (3) TO OBJECT IF THE TRIAL COURT'S 

RULING DOES NOT CONTAIN ADEQUATE FINDINGS ON 

THE ISSUE OF GENUINENESS? 

Affirmed. 

NORTHCUTT and CRENSHAW, JJ., Concur.