NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JOSE ALBINO RODRIGUEZ, )

)

Appellant, )

)

v. ) Case No. 2D15-2961

)

STATE OF FLORIDA, )

)

Appellee. )

___________________________________)

Opinion filed May 10, 2017.

Appeal from the Circuit Court for

Hillsborough County; Thomas P. Barber

and William Fuente, Judges.

Howard L. Dimmig, II, Public Defender, 

and J. Rafael Rodriguez, Special Assistant 

Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Cerese Crawford Taylor, 

Assistant Attorney General, Tampa, 

for Appellee.

SILBERMAN, Judge.

Jose Albino Rodriguez appeals his convictions and sentences for 

conspiracy to traffic in heroin and trafficking in heroin. Rodriguez raises four issues on 

appeal, and we find no error and make no further comment on the denial of his motion 
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to suppress and motion to continue.

1 Because the trial court committed reversible error 

in denying challenges for cause during jury selection, we reverse and remand for a new 

trial. Based on this disposition, we need not reach a fourth issue that Rodriguez raises 

on appeal.

Rodriguez contends that the trial court erred in failing to strike for cause 

Jurors 8, 13, 16, and 20 based on their responses regarding whether they would give 

greater credence to law enforcement witnesses. Because Jurors 13, 16, and 20 were 

not rehabilitated, we agree that they should have been stricken for cause.

In giving the prospective jurors preliminary instructions at the beginning of 

voir dire, the trial court stated as follows:

It doesn't matter whether the witness is a physician or 

a chemist or a police officer or a plumber. Every witness 

gets on the witness stand on the same footing and you have 

to assess the accuracy of that witness' testimony based 

upon what he or she says compared to what other witnesses 

have to say. And again in fact you'll get a special instruction 

regarding expert witnesses and police officers and the 

instruction will simply tell you that any witness, no witness 

rather is entitled to any greater or lesser consideration 

simply because of his or her position as to what he or she 

does.

When defense counsel was questioning the venire he asked if law enforcement officers 

are "given additional credibility just because of who they are." He also asked the 

question in terms of whether law enforcement officers are given "additional credibility

because of their experiences[,] because of their training." When defense counsel asked 

Juror 8 if officers are given additional credibility, she responded, "All things being equal I 

 1Judge Barber conducted the suppression hearing, and Judge Fuente 

conducted the jury trial.
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think perhaps a law enforcement officer may have a little more credibility but I would 

probably judge the testimony based on the individual and what they were saying 

compared to what everybody else was saying." When counsel said he was trying to get 

a more definitive answer, she said, "My training is in insurance claims work and so I'm 

very accustomed to looking at a whole bunch of different versions of things and trying to 

make an independent decision based on what makes sense." 

Defense counsel asked Juror 13, "[I]s law enforcement given additional 

credibility because—" Juror 13 cut counsel off and said, "In my personal view, yes." 

Defense counsel asked Juror 16, "[I]s law enforcement given additional 

credibility?" She answered yes, and when asked to explain, she said, "Because it's 

their job. I just assume they know how to do it." 

Defense counsel asked Juror 20, "[I]s law enforcement given additional 

credibility based upon their training and experience or are they treated as equal to any 

other lay witness?" Juror 20 said, "Yes, based on their training and experience." 

After the defense concluded, the prosecutor asked if she could have a 

brief opportunity to rehabilitate some of the prospective jurors. The trial court denied 

the request and said that they would "proceed with what's been asked." No more 

questions were asked of the prospective jurors, and counsel and the trial court 

proceeded to the challenges. 

When defense counsel made his first challenge for cause based on 

prospective jurors giving additional credibility to law enforcement, the following 

occurred: 

THE COURT: State, any response?
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[THE PROSECUTOR]: Yes, she never, Counsel 

never inquired as to whether she could continue to be fair 

and impartial and would follow the law as it was read by 

Your Honor in the jury instructions. 

THE COURT: That's my concern. When these 

questions were posed the jurors were never told what the 

law is and whether they could follow it notwithstanding so I'll 

deny the suggestion for cause as to number 4.

Defense counsel used a peremptory strike on Juror 4. Defense counsel later made 

challenges for cause on the same basis, that the specified jurors said they would give

additional credibility to law enforcement. 

With respect to Juror 8, the State noted that she had said that she would 

judge the testimony based on the person. The trial court stated that it recalled the 

questioning and had in its notes that "she was okay" and nothing caused the court "any 

reasonable doubt that she could not be objective and fair notwithstanding her response 

regarding law enforcement" and denied the challenge for cause. The trial court did 

grant a cause challenge on another juror, Juror 12, based on giving additional credibility 

to law enforcement. 

After the defense ran out of peremptory strikes, counsel challenged Juror 

20 for cause based on additional credibility to law enforcement. The State again 

asserted that the juror "never testified that he could not be fair—fair and impartial and 

did not indicate that he would not follow the law as instructed by the Court on 

credibility." The trial court denied the request, stating that it had no recollection or 

notations on Juror 20. The trial court denied defense counsel's request for an additional 

peremptory challenge to strike Juror 20. Defense counsel objected to the panel and 

stated that it was objecting to Jurors 8, 13, 16, and 20 for cause based on additional 
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credibility to law enforcement. The trial court noted the objection and subsequently 

swore in the jury.

Rodriguez preserved the issue for appeal by moving to strike these jurors 

for cause, requesting an additional peremptory challenge once the peremptory 

challenges had been exhausted, stating that the defense would have excused these 

jurors if possible, and objecting to the panel which deliberated on the case. See

Matarranz v. State, 133 So. 3d 473, 482 (Fla. 2013); Freeman v. State, 50 So. 3d 1163, 

1165 (Fla. 2d DCA 2010). Jurors 8, 13, 16, and 20 all served on the jury that convicted 

Rodriguez.

The Florida Supreme Court has stated that "a failure to ensure that our 

jury panels are comprised of only fair and impartial members renders suspect any 

verdict reached." Matarranz, 133 So. 3d at 477. The trial court has "the responsibility 

to determine that jurors render a verdict solely on the evidence presented and the law 

given by the court." Id. at 484. Thus, "if there is a reasonable basis to doubt a juror's 

impartiality, then that juror should be excused." Id. at 488; see also Freeman, 50 So. 3d 

at 1166; Vega v. State, 182 So. 3d 848, 850 (Fla. 4th DCA 2016). In a close case, "any

doubt as to a juror's competency should be resolved in favor of excusing the juror rather 

than leaving a doubt as to his or her impartiality." Thomas v. State, 958 So. 2d 1047, 

1050 (Fla. 2d DCA 2007); see also Vega, 182 So. 3d at 850. 

On direct review of a trial court's decision for manifest error, where the 

record shows "a reasonable doubt about a juror's ability to be impartial, the trial court 

abuse[s] its discretion in denying the cause challenge." Carratelli v. State, 961 So. 2d 

312, 319 (Fla. 2007). The "failure to excuse a juror for cause is manifest error 'when the 
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juror responds with equivocal or conditional answers, thus raising a reasonable doubt 

as to whether the prospect possesses the requisite state of mind necessary to render 

an impartial decision.' " Freeman, 50 So. 3d at 1166 (quoting Salgado v. State, 829 So. 

2d 342, 344 (Fla. 3d DCA 2002)).

A trial court should excuse a juror for cause when that juror expresses 

bias in favor of a law enforcement officer's testimony. Freeman, 50 So. 3d at 1166; 

Garcia v. State, 805 So. 2d 827, 828 (Fla. 2d DCA 2001); Vega, 182 So. 3d at 850; 

Rimes v. State, 993 So. 2d 1132, 1134 (Fla. 5th DCA 2008). Florida law permits a party 

to rehabilitate a juror whose answers during voir dire raise concerns regarding the 

juror's impartiality. Matarranz, 133 So. 3d at 486; Rimes, 993 So. 2d at 1134.

With respect to Juror 8, she said that perhaps she would give an officer a 

little more credibility, but then she stated she would probably judge the testimony based 

on the individual and compare the testimony to the other witnesses. When asked for a 

more definitive answer, she stated that in her work in insurance claims she had to look 

at different versions of events and try to make an independent decision based on what 

makes sense. We conclude that the trial court did not abuse its discretion in denying 

the cause challenge because in the context of her entire answer, there is no reasonable 

doubt to as to Juror 8's ability to be impartial. 

But the answers by Jurors 13, 16, and 20 do raise concerns about their 

impartiality. When asked if they would give law enforcement additional credibility, they 

all answered yes. None of them were rehabilitated. In fact, the State asked for 

permission to question the prospective jurors for purposes of rehabilitation, and the trial 

court denied the request. The trial court relied on the fact that the jurors were not asked 
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whether they could be fair and impartial and would follow the law as instructed. Had the 

trial court permitted the State to ask such questions, it is possible that the jurors would 

have demonstrated their ability to be impartial. But without rehabilitation, we are left 

with only their answers that they would give additional credibility to law enforcement. 

Thus, the record raises a reasonable doubt as to the impartiality of Jurors 13, 16, and 

20, and they should have been excused for cause.

To the extent that the State contends, without citation to authority, that any 

error is harmless, the harmless error rule does not apply. See Thomas, 958 So. 2d at 

1050 (recognizing that the "per se" error rule regarding jury selection errors has its 

critics but that it is the analysis this court must apply). Thus, we are constrained to 

reverse Rodriguez's convictions and sentences and remand for a new trial. 

We note for purposes of remand that English transcripts of controlled 

telephone calls made in Spanish were used as an aid at trial. If the English transcripts 

are used again and the accuracy of the transcripts is in dispute, then the trial court 

should read Florida Standard Jury Instruction (Crim.) 2.11, entitled "Transcript of 

Recording in Foreign Language (Accuracy in Dispute)."

Reversed and remanded for a new trial. 

SLEET and LUCAS, JJ., Concur.