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 
2

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 allimportant 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.
3

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. 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 
4

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 AfricanAmerican 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 
5

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.