DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN PACCHIANA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-3340

[February 14, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 08-

3720CF10C.

Fred Haddad of Haddad & Navarro, PLLC, Fort Lauderdale, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Saber, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

In this case, the state and the trial court ratified the striking of a 

potential juror based not on her views, but merely because of her 

membership in a particular religious group. For this reason and for the 

reasons stated below, we reverse. 

First, the trial court should not have found the state’s reason for the 

strike to be genuine and race-neutral because the state did not question 

the juror regarding her religion before exercising the strike and, even 

after questioning, nothing in the record showed her religion would 

prevent her from being a fair and impartial juror. Second, even if the 

strike were genuinely based on the juror’s religion, a member of a religion 

that is a cognizable class is protected from being struck from a jury

based solely on her faith where there is no evidence that her faith would 

prevent her from being a fair and impartial juror. Third, striking a 

potential juror based entirely on her particular religious affiliation, 

without any evidence that her religion would prevent her from being fair 
2

and impartial juror, is an impermissible “religious test” in violation of the 

United States and Florida Constitutions. 

The state charged appellant and codefendants with first-degree 

murder and conspiracy to commit first-degree murder. After a joint trial, 

the jury found appellant guilty as charged. The trial court sentenced

appellant to life imprisonment. Appellant raises several issues on 

appeal, including that the trial court erred in granting a peremptory 

strike of a prospective juror. Because we find this issue dispositive, we 

need not address the other issues. 

A trial court’s decision on whether a peremptory strike has been 

exercised in a racially discriminatory manner will be affirmed on appeal 

unless clearly erroneous. Melbourne v. State, 679 So. 2d 759, 764-65

(Fla. 1996). 

During voir dire, the prospective juror at issue, who is black,

completed a juror questionnaire answering questions concerning her 

occupation, previous juror experience, and the like. On that 

questionnaire, she listed her hobbies as “reading, witnessing a Jehovah 

Witness.” 

In response to the court’s questioning during voir dire, the prospective 

juror stated that she had worked in customer service, that she was not 

currently working, and that she wanted to serve on the jury. She was 

previously on a civil jury that reached a verdict for the plaintiff. She had 

been the victim of a burglary and her brother was in jail for armed 

robbery, but that would not impact her ability to be fair and impartial in 

this case. She confirmed that she was able to serve, that she wanted to 

serve, and that she would do a good job as a juror. 

The prospective juror agreed with various hypotheticals presented by 

the prosecutor, acknowledging that it was reasonable to conclude that a 

“pen is a pen” by looking at it and that one can tell what a puzzle is a 

picture of from 90 pieces out of 100. She also agreed that a description 

of a woman in a white flowing gown and a man with a smile on his face 

was a description of a wedding and not a funeral. When the prosecutor 

asked how the state proves its case, she answered “in documentation 

from another professional.” She confirmed she understood that the 

burden of proof was with the state. She agreed that based on new 

information from one witness, she might disbelieve the testimony of a 

previous witness. She also agreed that it is natural to begin deciding 

whether someone is believable while that person is testifying. When 
3

defense counsel asked whether first impressions are correct, she

responded, “Sometimes, sometimes not.” 

The fact that this case involved guns did not cause any issues for her. 

No one in her house owned or possessed a handgun, nor had she ever 

shot a handgun. None of her family or close friends had ever been a 

victim of handgun violence. When asked if she could envision a situation 

where a person may legally and lawfully shoot someone who is unarmed, 

she answered “yes.” 

During jury selection, the state used a peremptory challenge to strike 

the prospective juror. The following then transpired: 

[DEFENSE COUNSEL]: Can we get a race neutral reason?

[THE STATE]: She’s a Jehovah Witness. I’ve never had 

one say, and I highlighted it, they’ve always said they 

can’t sit in judgment. She never brought it up.

[DEFENSE COUNSEL]: She did.

[THE STATE]: No, but she put at the bottom that she’s a 

Jehovah Witness, that gives me pause.

[DEFENSE COUNSEL FOR CO-DEFENDANT]: That’s a 

religious based strike.

[THE STATE]: You can say that but that’s—for 20 years, 

[defense counsel for co-defendant] knows, any one of them

that’s been practicing they’ve always said that. Now maybe 

she’s less—

[DEFENSE COUNSEL FOR CO-DEFENDANT]: She reads 

Jehovah stuff, she doesn’t say she’s a practicing Jehovah 

Witness.

THE COURT: Let’s bring in [the prospective juror].

. . . .

[Prospective juror], if you wouldn’t mind having a seat in 

the front row, we have a question I want to ask you. You 

indicated in your questionnaire that you’re a Witness, 

Jehovah Witness.
4

[PROSPECTIVE JUROR]: Yes.

THE COURT: How would that affect your ability to be fair 

in this case? We’ve had them before. Do you have any 

religious beliefs that would prevent you from being fair and 

impartial in this case?

[PROSPECTIVE JUROR]: If the evidence that’s provided to 

me is clear cut and concise I would be able to. If my ruling 

wouldn’t—

THE COURT: In light of my questions, [prosecutor]?

[THE STATE]: So there’s no prohibition, and honestly I 

don’t know enough about religion, and I don’t mean that 

disrespectfully, but I want to make sure that you as an 

individual, whatever your beliefs are, there’s nothing 

preventing you from sitting in judgment of a case, because 

that’s really what you’re doing, you’re judging whether we’ve 

proven our case or not. You can do that?

[PROSPECTIVE JUROR]: I can, and before I believe it was 

Judge Levenson who said that we would not be making the 

sentencing.

THE COURT: How do you feel about that?

[PROSPECTIVE JUROR]: I’m okay with that.

THE COURT: Okay.

[THE STATE]: The fact that you said that, if you were 

involved – I’m taking it to mean, and maybe I’m wrong, if 

you’re involved in sentencing then you are saying you 

wouldn’t be sitting?

[PROSPECTIVE JUROR]: Then I would say no.

[THE STATE]: You realize your decision here if, in fact, 

you’re to vote –

[DEFENSE COUNSEL FOR CO-DEFENDANT]: I object to 

any further questions with this juror.
5

THE COURT: Overruled.

[THE STATE]: If, in fact, you know, you vote that it’s 

proven, you have nothing to do with sentencing but the 

Judge would based on your decision saying it’s proven. 

[PROSPECTIVE JUROR]: If the State gives me all the 

evidence that I can see where you can show me that these 

individuals did this act, then I—can make a decision on that 

and based on the decision that you provide me.

[THE STATE]: Well, we don’t provide you with a decision.

[PROSPECTIVE JUROR]: Well, the evidence that I’m 

given.

[THE STATE]: Yes, ma’am. You said all the evidence. You 

can do that beyond a reasonable doubt?

[PROSPECTIVE JUROR]: Yes.

[THE STATE]: The reason. I’m asking, I want to make 

sure—whatever the Judge says the law is—

[PROSPECTIVE JUROR]: Right.

[THE STATE]: Okay.

THE COURT: Any questions from the Defense?

[DEFENSE COUNSEL FOR CO-DEFENDANT]: None.

. . . .

THE COURT: Thank you, ma’am. Record reflect that the 

juror’s [sic] have left the courtroom and the door is closed. 

What say you, [prosecutor]?

[THE STATE]: My reason is unchanged, I don’t believe I 

can meet her burden. I can meet my burden beyond a 

reasonable doubt but I cannot meet her burden and that’s a 

concern to me and it has nothing to do with religion or 

anything else.
6

THE COURT: Let me hear from the Defense.

[DEFENSE COUNSEL]: We object to her being challenged 

for cause, then he’s going to have to come up with a race 

neutral reason.

[THE STATE]: This is a peremptory.

THE COURT: Over the Defense objection I find that the 

record sufficiently supports a race neutral reason because of 

the concern about her responses to the questions. So over 

your objection it’ll be granted.

[DEFENSE COUNSEL]: You need to, I think the law 

requires you to put on the record what the race and reason 

is.

THE COURT: Well, he—

[THE STATE]: I believe I did that.

THE COURT: Tell me.

[DEFENSE COUNSEL FOR CO-DEFENDANT]: If the Court 

is making the ruling—so the Court has already made the 

statement, you find a race neutral reason. We’re asking the 

Court to follow the law and to tell us what that race neutral 

reason is that’s already affected your decision, that’s all.

THE COURT: Okay, that’s fair enough. Listen, she’s a 

Jehovah Witness, I think there was some discussion about 

her and the issue of the sentencing part of it, she did waiver

[sic] along the way there. 

Look, if it were me making a decision, me perceiving it 

differently, but out of deference to the person who is the 

moving party, as long as there’s some reason, or suggestion 

based on her responses and overall nature of her—and plus I 

think alternatively, additionally I want to point out I know 

it’s a blind record but there’s a number of other African 

Americans on the jury, I think that based on the totality of 

the circumstances I think it rises to the legal of a non based 

reason. I understand your point though, it is well taken. Do 

you want to respond?
7

[DEFENSE COUNSEL FOR CO-DEFENDANT]: Yes, we 

move to strike the panel.

THE COURT: Based on?

[DEFENSE COUNSEL FOR CO-DEFENDANT]: Based on 

the Court depriving us of a juror that we think should be 

seated.

[DEFENSE COUNSEL FOR CO-DEFENDANT]: We all join 

in, of course.

THE COURT: Yes, it’ll be a joint motion. I think we talked 

about that before, [defense counsel for co-defendant].

[DEFENSE COUNSEL FOR CO-DEFENDANT]: I wanted to 

clarify it one last time.

[DEFENSE COUNSEL]: Especially because we think this 

is going to be a key appellant [sic] issue, so I want to make 

sure we’re all in.

THE COURT: Everybody’s in, all right. . . . 

. . . . 

THE COURT: Do you understand who the panel is? Go 

over the panel one more time, I’m going to highlight it now. . 

. . Noted for the record that there was an objection to [the 

prospective juror], [the prospective juror] was objected to 

that’s why you’re not tendering the panel.

(emphasis added). 

After voir dire but before the jury was sworn, appellant filed a written 

motion for mistrial and to select a new jury. At a hearing on the motion, 

the following transpired:

THE COURT: I do want to say that it was late in the day 

and you had asked me or arguably confronted me with 

making a record as to why I was doing what I was doing, and 

it was late in the day for everybody, so I’m not casting 

aspersions. The case that you cited, [defense counsel], the 
8

Davis case, out of the Supreme Court of Minnesota, really 

says it well in terms of [the prosecutor’s] basis. It says here, 

“In my experience, that faith is very integral to their daily life 

in many ways that many Christians are not, that was 

reinforced by at least three times a week he goes to church,” 

blah, blah, blah, talking about Jehovah witnesses. Jehovah 

Witnesses are peculiar, and many of them in my 

experience have said they cannot judge, that God judges, 

and based on that I find that to be a genuine non-racebased reason. In fact, in that, in that case, in the Davis 

case, the defense actually conceded that. We’ll get to your 

next issue, but I’m just making a record as to that. So, the 

fact that she says, the juror says, that she’s a Jehovah 

Witness, notwithstanding the fact that she says she can 

still be fair and impartial, he says, “You know what, I 

don’t feel comfortable with the fact that she has that 

religion.”

It’s sort of analogous if we had an African-American FBI 

agent who was on the panel and said, “I can be fair and 

impartial, I can assess police officers just as well as anyone 

else,” but you strike him anyway. So, I think they’re pretty 

analogous.

A Jehovah Witness, that as a religion, it would almost 

be malpractice for a prosecutor to let someone on the 

jury like that. 

. . . . 

[THE STATE]: . . . [T]he only thing that I would add is the 

timeliness, a contemporaneous objection. As you have 

framed it and [defense counsel] framed it correctly, his 

challenge was a race neutral reason.

My reasoning had nothing to do with race, Jehovah’s 

Witnesses can be White, they can be Black, they can be 

Asian, Hispanic, whatever the ethnicity is, and that’s the 

finding the Court made. This motion is untimely. I know 

he’s trying to make his record contemporaneous to it, the 

separate objection, not the race-based reason, but a 

religious-based, he states it well in the motion, it speaks for 

itself, the basis for that. So, that’s the only thing I would 

add, that it’s untimely.
9

. . . . 

THE COURT: . . . . The other thing I want to point out to 

you, not to get technical here, [defense counsel], but you did 

file a motion for mistrial, the jury’s [sic] haven’t been sworn. 

[THE STATE]: Right.

THE COURT: So, it really should be a motion to strike the 

jurors. I think the argument is an interesting argument. I 

think you concede, the excellent professional lawyer that you 

are, that this is a first impression type issue.

[DEFENSE COUNSEL]: Right.

THE COURT: You want to extend Batson, which the 

Supreme Court has not done.

[DEFENSE COUNSEL]: Absolutely. 

THE COURT: I’m going to exercise my discretion and deny 

that request. However, all of your objections are duly noted 

and preserved at this time.

(emphasis added). 

“Preservation of an objection to the use of a peremptory strike 

requires more than one objection: an objection to initiate a Melbourne

inquiry and another objection before the jury is sworn in.” Denis v. 

State, 137 So. 3d 583, 585 (Fla. 4th DCA 2014). Additionally, “if the 

proponent of the peremptory strike proffers a facially race-neutral reason 

for the strike during step 2 of the Melbourne procedure, the party 

objecting to the strike must preserve the issue by putting the court on 

notice that he or she contests the factual assertions on which the strike 

is based.” Id. 

In this case, the issue is preserved because defense counsel objected 

to the peremptory strike by asking for a race-neutral reason. See Foster 

v. State, 767 So. 2d 525, 528 (Fla. 4th DCA 2000). Additionally, the trial 

court noted the defense did not tender the jury because of the objection 

to the strike of the prospective juror. Because the state’s proffered 

reason of religion was not a facially race-neutral reason sufficient to 

rebut the prima facie case of racial bias, appellant did not need to do 
10

anything more to preserve the issue. See id.; State v. Davis, 504 N.W. 2d 

767, 772 (Minn. 1993) (stating that striking a black juror because he was

a Jehovah’s Witness would not rebut the prima facie case of racial bias). 

Regardless, even though it was not required, the defense did put the 

court on notice that it was objecting to the legitimacy of the reason given 

by the state for the strike. Specifically, in response to the state’s 

proffered reason that the prospective juror was a Jehovah’s Witness, 

counsel for one of the co-defendants stated, “That’s a religious based 

strike.” The fact that this objection was made by counsel for a codefendant rather than appellant’s defense counsel is of no importance. 

The purpose of the rule requiring a timely contemporaneous objection is 

to “place the trial judge on notice that error may have been committed, 

and provide him an opportunity to correct it at an early stage of the 

proceedings.” Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005). The 

objection by the co-defendant’s counsel achieved the objective of this 

rule. The court clearly understood the alleged error and brought the 

prospective juror in for further questioning. 

Additionally, after the state announced that its proffered reason 

remained unchanged upon questioning the juror regarding her religion, 

appellant’s counsel objected that the state failed to provide a race-neutral 

reason, again putting the court on notice that religion was not a 

legitimate reason. After the trial court allowed the strike, counsel for a

co-defendant moved to strike the panel based on the court’s exclusion of 

the prospective juror. All of the defense attorneys joined the motion,

including appellant’s counsel, who stated, “Especially because we think 

this is going to be a key appellant [sic] issue, so I want to make sure 

we’re all in.” The trial court confirmed, “Everybody’s in, all right.” 

Further, after voir dire and before the jury was sworn, appellant filed 

a written motion, yet again objecting to the striking of the juror based on 

her religion and requesting a new jury. The trial court denied the 

request but noted that “all of your objections are duly noted and 

preserved at this time.” 

From this record, there can be no doubt the trial court was on notice 

and fully understood that appellant, as well as his codefendants,

objected to the strike, the reason given by the state for the strike, and the 

trial court’s acceptance of that reason as genuine. Therefore, this issue 

is preserved. 

I. Improper Race-Based Strike
11

As the United States Supreme Court has stated, “[r]acial 

discrimination in selection of jurors harms not only the accused” but 

also “unconstitutionally discriminate[s] against the excluded juror.” 

Batson v. Kentucky, 476 U.S. 79, 87 (1986). “The harm from 

discriminatory jury selection extends beyond that inflicted on the 

defendant and the excluded juror to touch the entire community.” Id. 

In Florida, the Neil-Slappy line of cases sets out a procedure to 

determine if a preemptory challenge is racially-motivated. Step 2 of this 

analysis requires the proponent of the strike to articulate a “‘clear and 

reasonably specific’ racially neutral explanation of ‘legitimate reasons’ for 

the [strike].” Melbourne, 679 So. 2d at 763 (citation omitted) (alteration 

in original). In Step 3, the trial court determines the genuineness of the 

strike. Id. at 764. 

In this case, the state did not provide a “legitimate” race-neutral 

reason as required under Melbourne. During voir dire, the potential juror 

stated that she would follow the law and gave no indication that she 

would allow her status as a Jehovah’s Witness to affect her decisionmaking at all. In moving to strike her, the state merely relied on the 

juror’s membership in a religion without any testimony that it would 

actually affect her service as a juror, speculating that “any” practicing 

Jehovah’s Witness would refuse to sit in judgment of others. In fact, the 

state moved to strike the juror before even questioning her about her 

religion and without determining whether she shared any alleged “group 

bias” that would potentially prevent her from being an unbiased juror.

We often look to whether the juror was questioned, in detail or at all, 

to determine the genuineness of a claimed race-neutral strike. In the 

absence of questioning regarding the juror’s adherence to any claimed 

group bias, then the genuineness of the strike can be called into doubt. 

Landis v. State, 143 So. 3d 974, 979 (Fla. 4th DCA 2014).

In Landis, the state, when asked for a race-neutral reason for a 

peremptory strike, proffered that the juror worked in the restaurant 

industry where drugs run rampant. However, the state had not 

questioned the juror regarding his occupation or what effect it might 

have on his ability to serve as a juror. Given this record, “the trial 

court’s determination of the genuineness of the strike lacked sufficient 

grounds and was clearly erroneous.” Id. at 980. 

In attempting to distinguish Landis, the concurrence misapprehends 

the purpose for which Landis is cited. Landis is cited for the proposition 

that the failure to question a juror about the proffered reason for the 
12

strike casts doubt on the genuineness of the strike. That is not to stay 

that religion can never be a race-neutral reason for a strike. Rather, 

because the state never even inquired about the juror’s religion in this 

case, it obviously was not a concern to the state and not a genuine basis 

for the strike. 

This point is further illustrated by Frazier v. State, 899 So. 2d 1169 

(Fla. 4th DCA 2005). In that case, the state struck a black juror because 

she was an immigrant from Jamaica, a country known for drug 

trafficking. However, “the prosecutor made no attempts to question [the 

juror] about her familiarity and experiences, if any, with drug trafficking 

in Jamaica. Rather, the prosecutor’s challenge rested on stereotypical 

assumptions about Jamaicans.” Id. at 1175. In finding the state did not 

provide a race/ethnic-neutral reason for the strike, this court stated that 

“[a] policy of striking all jurors who originate from a country inhabited by 

a distinct racial or ethnic group, without regard to the particular 

circumstances of the trial or the individual responses of the jurors, is 

inherently discriminatory.” Id.

Here, the state’s race-neutral explanation based on the prosecutor’s 

“20 years” of experience is no different than the discriminatory 

stereotyping that we disallowed in Frazier. See also Cobb v. State, 825 

So. 2d 1080, 1084 (Fla. 4th DCA 2002) (“Florida courts have often 

invalidated a peremptory challenge as a pretext where the excused juror 

was not questioned and shown to share the alleged group bias.”); Haile v. 

State, 672 So. 2d 555, 556 (Fla. 2d DCA 1996) (holding trial court erred 

in accepting state’s strike of African American juror because she read 

Bible without conducting further inquiry; “this court cannot conclude, 

without evidence related to the facts of the case, that the reading of the 

Bible, a practice embraced by a significant percentage of the American 

public, would render that portion of the population inherently partial.”). 

The case of Davis is also instructive. 504 N.W. 2d 767. In that case, 

the Minnesota Supreme Court chose not to extend the Batson bar on

race discrimination to peremptory strikes on the basis of religion. Yet 

even the Davis court noted: 

If the prosecutor had said no more than she was striking 

the black juror because he was a Jehovah’s Witness, we 

think this would not have rebutted the prima facie case of 

racial bias, anymore than if the prosecutor had said she was 

striking because the black juror was a Lutheran, a Baptist, 

or a Muslim. 
13

Id. at 772. In the present case, as in Davis, the state relied on the fact 

that the juror was a Jehovah’s Witness, and this also would not “rebut[]

the prima facie case of racial bias” alleged. See id.

Here, the juror was not questioned about her religious views until 

after the state made its preemptory strike, thus calling its genuineness 

into question. Moreover, even after questioning the prospective juror 

about her religion, there was a complete lack of evidence that her religion 

would influence her decision-making as a juror. In fact, the juror

unequivocally stated she would follow the evidentiary standard beyond a 

reasonable doubt and none of her responses during voir dire gave any 

reason to doubt this statement. 

Further, after the trial court determined that being a Jehovah’s 

Witness was a race-neutral reason to strike the juror from the panel and 

that she wavered on sentencing, the court opined that “a Jehovah 

Witness, that as a religion, it would almost be malpractice for a 

prosecutor to let someone on the jury like that.” These statements 

support the argument that it was not the juror’s answers, but rather her 

mere religious affiliation, that caused her to be struck from the panel. 

The dissent’s reliance on certain statements by the prospective juror 

does not rebut the conclusion that the strike was based on an 

impermissible reason. Although the prospective juror stated that the 

evidence should be “clear cut and concise,” this layman’s statement was 

made after the initial questioning and after the state’s exercise of the 

peremptory strike, so it obviously could not have been the basis of the 

state’s strike. Additionally, after making this statement, and in response 

to the state’s questioning, the juror confirmed that she would apply the 

reasonable doubt standard. Thus, even if the statement had been made 

before the strike, the juror’s subsequent acknowledgement of the proper 

standard should have removed any concern about her ability to follow 

the law. 

The dissent also relies on the juror’s statement that she had been the 

victim of a burglary and that her brother was in jail, but that neither of 

these circumstances would affect her ability to be fair and impartial in 

this case. The dissent is correct that a juror’s claim of impartiality is not 

always dispositive. However, neither the state nor the trial court relied 

on the juror’s status as a burglary victim or her brother’s imprisonment 

as justification for the peremptory strike. Even the dissent concedes that 

these grounds were not “expressed by the trial court.” Therefore, the 

dissent’s reliance on Cunningham v. State, 838 So. 2d 627, 630 (Fla. 5th 
14

DCA 2003), and Peters v. State, 874 So. 2d 677, 679 (Fla. 4th DCA 

2004), is misplaced. 

The dissent further relies on the trial court’s statement that the juror 

wavered with respect to sentencing. However, the state did not advance 

this reason as a basis for its peremptory strike. See Floyd v. State, 569 

So. 2d 1225, 1229 (Fla. 1990) (“It is the state’s obligation to advance a 

facially race-neutral reason that is supported in the record.”). Moreover, 

the record does not support a finding that the prospective juror wavered. 

See id. In response to the court’s questioning, the juror stated that the 

jury “would not be making the sentencing” and that she was “okay with 

that.” The state itself advised the juror that “[i]f, in fact, you know, you 

vote that it’s proven, you have nothing to do with sentencing but the 

Judge would based [sic] on your decision saying it’s proven.” Further, 

jurors are instructed not to consider sentencing during the penalty phase 

of trial, and “it is presumed that jurors will, in good faith, follow the law 

as it is explained to them.” Hurst v. State, 202 So. 3d 40, 63 (Fla. 2016). 

Although the trial court noted that “there’s a number of other African 

Americans on the jury,” “[t]he relevant issue in this inquiry is whether 

any juror has been excused because of his or her race, independent of 

any other juror.” State v. Johans, 613 So. 2d 1319, 1321 (Fla. 1993)

(citing State v. Slappy, 522 So. 2d 18, 21 (Fla. 1988)). “A race-neutral 

justification for a peremptory challenge cannot be inferred merely from 

circumstances such as the composition of the venire or the jurors 

ultimately seated.” Id. “[T]he striking of a single black juror for a racial 

reason violates the Equal Protection Clause, even where other black 

jurors are seated, and even when there are valid reasons for the striking 

of some black jurors.” Slappy, 522 So. 2d at 21 (citation omitted). 

II. Improper Religion-Based Strike

Even if the state’s strike were “genuinely” based on the juror’s 

religion, members of a religion that is a cognizable class are also 

protected under the United States and Florida Constitutions from being 

systematically struck from juries solely based on their faith. Appellant 

has a right to a fair and impartial jury panel where the state does not 

exclude members of a religion in the absence of competent substantial 

evidence that the potential juror cannot be fair and impartial due to her 

views related to her membership in that religion. 

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme 

Court held that the Equal Protection Clause prohibits race-based 

peremptory challenges. Over the years, courts have expanded Batson to 
15

other peremptory challenges based on the Equal Protection Clause. The 

United States Supreme Court extended the equal protection analysis to 

gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).1 

Similarly, the Florida Supreme Court previously found that Hispanics 

were a “cognizable class” of people, requiring an ethnic-neutral reason 

before excusing a juror. State v. Alen, 616 So. 2d 452, 454 (Fla. 1993). 

That court applied a two-part test to determine if a group constitutes a 

cognizable class: whether the group’s population is large enough to be 

recognized as an identifiable group and whether that group has internal 

group cohesiveness. Id.

The Third District, following the same line of cases, held that a 

preemptory challenge of a Jewish venireperson based solely upon her 

religion was unconstitutional. Joseph v. State, 636 So. 2d 777 (Fla. 3d

DCA 1994). The court found that members of the Jewish religion were a 

cognizable class under the standard articulated in Alen. The Joseph

court determined that members of the Jewish faith met the two-prong 

test and concluded that striking members of the Jewish faith violated 

Article 1, Section 16 of the Florida Constitution, which guarantees the 

defendant an impartial jury. Id. at 781.

In the present case, as in Joseph, members of the Jehovah’s 

Witnesses would also appear to meet the two-prong test as a recognizable 

group with internal group cohesiveness. See also State v. Gilmore, 511 

A.2d 1150, 1159 n.3 (1986) (“[A]t minimum, cognizable groups include 

those defined on the basis of religious principles, race, color, ancestry, 

national origin, and sex (all of which are suspect or semi-suspect 

classifications triggering strict or intermediate scrutiny under federal 

equal protection analysis[.)]”) (citing Cleburne v. Cleburne Living Centers, 

473 U.S. 3249 (1985)). 

This court has also found that striking a potential juror due to his or 

her religious faith is unconstitutional. In Olibrices v. State, 929 So. 2d 

1176, 1180 (Fla. 4th DCA 2006), our court found that the potential 

juror’s “membership within the objectively discernible group of Pakistani 

Muslims” was the basis of the exercise of a peremptory challenge. We 

1 The dissent quotes from Justice O’Connor’s concurring opinion in J.E.B., 

wherein she expressed concern about “[l]imiting the accused’s use of the 

peremptory challenge.” Id. at 150. However, the instant case involves a 

peremptory challenge by the state. J.E.B. stands for protecting the right of the 

defendant to use a peremptory challenge to safeguard the right to a fair trial, 

not for the state to exclude a discernable class of people. 
16

concluded that “whether the juror was challenged because he is of 

Pakistani origin or because his religious belief is Muslim, it would be a 

Neil Slappy violation to exercise a peremptory challenge of him on either 

account.” Id. Similarly, in the present case, the potential juror is a 

member of an “objectively discernible group,” that being the Jehovah’s

Witnesses.

Rodriguez v. State, 826 So. 2d 494 (Fla. 4th DCA 2002), and Happ v. 

State, 596 So. 2d 991 (Fla. 1992), which are cited by the dissent, are 

distinguishable. The peremptory strike in Rodriguez was based on the 

prospective juror’s occupation and not based on membership in a 

particular religious group. 826 So. 2d at 495. Happ is also 

distinguishable because in that case, unlike in the instant case, the 

defendant did not contest the reasons given by the state for the strike. 

596 So. 2d at 996. 

The dissent also relies on the trial court’s superior vantage point as 

justification for affirmance. Although it is generally true that we should 

rely on the superior vantage point of the trial court, that axiom does not 

hold true where the trial court has ratified the state’s erroneous and 

unconstitutional strike of a prospective juror based on religious 

membership alone. See Frazier, 899 So. 2d at 1175 (“When stereotypical 

presumptions are based on a juror’s nationality or ancestral home and 

proffered as a reason for a peremptory strike, discrimination in jury 

selection has occurred as a matter of law.”); Foster v. State, 929 So. 2d 

524, 537 (Fla. 2006) (stating that deference to a trial court’s superior 

vantage point applies only if its decision is supported by competent 

substantial evidence).

Other jurisdictions have also declared invalid strikes based on 

religious affiliation. For instance, in State v. Hodge, 726 A.2d 531, 550 

(Conn. 1999), the Connecticut Supreme Court held that “a peremptory 

challenge based on a venireperson’s religious affiliation is 

unconstitutional.” The court explained that “[a]lthough one’s religious 

beliefs may render a prospective juror unsuitable for service in a 

particular case, one’s religious affiliation, like one’s race or gender, bears 

no relation to that person’s ability to serve as a juror.” Id. at 553.

Although those who argue against extending Batson often cite to 

Davis, as noted above, the Minnesota Supreme Court actually recognized 

that striking a juror based solely on his affiliation with the Jehovah’s 

Witnesses would not rebut the prima facie case of racial bias. See Davis, 

504 N.W. 2d at 772. This is the exact situation presented in the instant 

case. 
17

Interestingly, although the United States Supreme Court denied the 

petition for review by certiorari in Davis, Justice Thomas, joined by 

Justice Scalia, dissented from the denial of certiorari. Davis v. 

Minnesota, 511 U.S. 1115 (1994). Justice Thomas, citing to J.E.B.,

disputed the Minnesota Supreme Court’s conclusion that “Batson’s equal 

protection analysis applies solely to racially based peremptory strikes.” 

Id. at 2121. Responding to the majority’s denial of the writ for certiorari, 

the dissent stated: 

Indeed, given the Court’s rationale in J.E.B., no principled 

reason immediately appears for declining to apply Batson to 

any strike based on a classification that is accorded 

heightened scrutiny under the Equal Protection Clause. . . . 

J.E.B. would seem to have extended Batson’s equal 

protection analysis to all strikes based on the latter category 

of classifications-a category which presumably would include 

classifications based on religion.

Id. 

Justice Thomas correctly suggested that the rationale of Batson and 

J.E.B. should be extended. Based on Alen, Joseph, and this court’s 

decision in Olbrices, the trial court clearly erred in allowing the 

prospective juror to be struck from service based on her membership in a 

religious group. 

Thus, the state’s strike was either pretextual and entirely based on 

race, or the state’s strike was not pretextual and entirely based on 

religion despite the lack of competent substantial evidence that the 

prospective juror’s religion would influence her decision-making as a 

juror. Either way, it violates the United States and Florida Constitutions. 

III. Strike Violates “Religious Test” 

Finally, striking a potential juror from jury service based solely on 

membership in a religion, no matter what the juror says during voir dire, 

is an impermissible “religious test” in violation of the United States and 

Florida Constitutions. Where the state decides to strike the juror due to 

her faith, even before discussing whether her faith would improperly 

influence her decision, it becomes the state’s de facto position that a 

member of that religion can never satisfy the state’s concerns and 

effectively can never serve on a jury. Likewise, the trial court’s 

statement—that allowing a Jehovah’s Witness on a jury would be 
18

“malpractice”—effectively prohibits members of that religious group from 

being able to serve as a juror. 

Article VI, Clause 3 of the United States Constitution states that “no 

religious Test shall ever be required as a Qualification to any Office or 

public Trust under the United States.” The United States Supreme Court 

stated that “[w]e repeat and again reaffirm that neither a state nor the 

Federal Government can constitutionally force a person ‘to profess a 

belief or disbelief in any religion.’” Torcaso v. Watkins, 367 U.S. 488, 495 

(1961) (citation omitted). To strike a juror for professing a belief in a 

religion amounts effectively to a religious test. See also Fla. Const. art. I, 

§ 2 (“Basic rights.—. . . No person shall be deprived of any right because 

of race, religion, national origin, or physical disability.”); Fla. Const. art I, 

§ 3 “Religious freedom.— . . . There shall be no law respecting the 

establishment of religion or prohibiting or penalizing the free exercise 

thereof.”). 

The United States Supreme Court has recognized that jury duty is a 

public trust: 

[The jury is] an entity that is a quintessential governmental 

body, having no attributes of a private actor. The jury 

exercises the power of the court and of the government that 

confers the court’s jurisdiction. . . . [T]he jury system 

performs the critical governmental functions of guarding the 

rights of litigants and ensuring the continued acceptance of 

the laws by all of the people.

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 624 (1991). 

(citation, quotation mark, and alterations omitted). Every person, 

regardless of his or her religion, should be eligible to serve in this public 

trust. 

Another state that has adopted the rule prohibiting peremptory

strikes based on religious affiliation has also found this type of strike 

violates the religious test doctrine: 

Furthermore, to allow the State to use peremptory strikes 

based on religious affiliation would condition the right to free 

exercise of religion upon a relinquishment of the right to jury 

service. See McDaniel v. Paty, 435 U.S. 618, 626-29 (1978)

(invalidating a law that disqualified members of the clergy 

from holding certain public offices, because it imposed 

special disabilities on the basis of religious status); Powers v. 
19

Ohio, 499 U.S. 400, 406-07 (1991) (recognizing the right to 

serve on a jury as an important democratic right). As the 

Court stated in Georgia v. McCollum, 505 U.S. 42, 59 (1992), 

“[i]n our heterogeneous society policy as well as 

constitutional considerations militate against the divisive 

assumption-as a per se rule-that justice in a court of law 

may turn upon the pigmentation of skin, the accident of 

birth, or the choice of religion.” Quoting Ristaino v. Ross, 424 

U.S. 589, 596 n.8 (1976) (emphasis added). 

State v. Purcell, 18 P.3d 113, 121-22 (Ariz. Ct. App. 2001). 

The framework of our constitutional freedom is based in large part on 

the protection of the free exercise of religion. Religious liberty can be 

safeguarded only when every individual can participate in our civil 

society regardless of his or her religion. Serving as a juror is one of the 

highest forms of participation. 

Our founders understood that religious tests were inimical to the 

rights of the individual within a free society: 

More sparingly should this praise be allowed to a 

government, where a man’s religious rights are violated by 

penalties, or fettered by tests, or taxed by a hierarchy. 

Conscience is the most sacred of all property; other property 

depending in part on positive law, the exercise of that, being 

a natural and unalienable right. To guard a man’s house as 

his castle, to pay public and enforce private debts with the 

most exact faith, can give no title to invade a man’s 

conscience which is more sacred than his castle, or to 

withhold from it that debt of protection, for which the public 

faith is pledged, by the very nature and original conditions of 

the social pact.

James Madison, Property, National Gazette, March 27, 1792, available at 

https://founders.archives.gov/documents/Madison/01-14-02-0238.

In sum, the strike was pretextual and based on race. Even if the 

strike was not a pretext, then it was based on religion, which is also 

impermissible. Finally, the strike imposed an unconstitutional religious 

test. 

For all of these reasons articulated above, we reverse and remand for 

a new trial. 
20

Reversed and remanded. 

GERBER, C.J., concurs in part and dissents in part with opinion.

MAY, J., dissents with opinion.

GERBER, C.J., specially concurring in part and dissenting in part. 

I concur with Judge Levine to reverse the defendant’s conviction and 

remand for a new trial. Although I concur with most of my colleague’s 

well-researched and well-written opinion, I write separately because I 

respectfully disagree with his opinion in two respects:

1. In my opinion, the defendant did not preserve his religion-based 

objection during the initial discussion over the prospective juror. The 

defendant only preserved his religion-based objection through his 

later-filed motion for mistrial and to select a new jury, which he filed 

before the jury was sworn.

2. In my opinion, to the extent the state used a religion-based reason 

to oppose the defendant’s race-based objection, such a religion-based 

reason was both facially race-neutral (because religion and race are 

obviously two different things facially) and genuinely race-neutral 

(because the defendant did not satisfy his burden of persuasion to 

show that the state was using its religion-based reason as a pretext to 

strike the prospective juror because of her race). Thus, the trial court 

properly overruled the defendant’s race-based objection. However, to 

the extent the defendant ultimately raised a religion-based objection 

through his motion for mistrial and select a new jury, I agree with 

Judge Levine that the trial court erred in overruling the defendant’s 

religion-based objection based on the prospective juror’s answers to 

the questions posed to her.

I address each point in turn more fully below.

1. Preservation

The defendant did not preserve his religion-based objection during the 

initial discussion over the prospective juror. The defendant’s initial 

objection could not have been clearer that it was based on only the 

prospective juror’s race: “Can we get a race neutral reason?”
21

Upon the state’s response, “She’s a Jehovah’s Witness,” the fact that 

the co-defendant’s counsel then stated “That’s a religious based strike” 

did not automatically transform the defendant’s race-based objection into 

a religion-based objection. At best, the co-defendant’s counsel’s 

comment was ambiguous. Was the co-defendant’s counsel raising a 

second objection based on religion? Or was the co-defendant’s counsel 

simply commenting on the state’s proffered race-neutral reason for the 

peremptory strike?

Based on this record, the latter seems more likely. Unlike the 

defendant’s counsel’s clear initial objection, “Can we get a race neutral 

reason?”, at no point did either the defendant’s counsel or the codefendant’s counsel follow up with a similarly clear “Can we get a 

religion-neutral reason?” In fact, after the court brought in the 

prospective juror for further questioning, the record reflects that: (1) 

both the defendant’s counsel and the co-defendant’s counsel pursued 

only a race-based objection; and (2) the court understood the objection to

have raised only a race-based objection:

[DEFENSE COUNSEL]: We object to her being challenged for 

cause, then he’s going to have to come up with a race 

neutral reason.

[THE STATE]: This is a peremptory.

THE COURT: Over the Defense objection I find that the 

record sufficiently supports a race neutral reason because 

of the concern about her responses to the questions. So over 

[the defense] objection [the state’s peremptory strike will] be 

granted.

[DEFENSE COUNSEL]: You need to, I think the law requires 

you to put on the record what the race and reason is.

THE COURT: Well, he —

[THE STATE]: I believe I did that.

THE COURT: Tell me.

[CO-DEFENDANT’S COUNSEL]: If the Court is making the 

ruling—so the Court has already made the statement, you 

find a race neutral reason. We’re asking the Court to follow 
22

the law and to tell us what that race neutral reason is that’s 

already affected your decision, that’s all.

(emphasis added).

I recognize that my colleague Judge May, in her articulate dissent 

below, agrees with Judge Levine that the co-defendant’s counsel’s 

statement, “That’s a religious based strike,” when added to the ensuing 

discussion regarding the prospective juror’s religion, amounted to 

preserving the defendant’s religion-based objection. Respectfully, I 

disagree with both of my colleagues. Although the defendant ultimately 

preserved his religion-based objection through his later-filed motion for 

mistrial and to select a new jury, which he filed before the jury was 

sworn, the portion of the record which I have quoted above clearly 

demonstrates that the defendant did not preserve his religion-based 

objection until he filed that motion later.

2. Using a Religion-Based Reason to Oppose a Race-Based 

Objection

The other issue on which Judge Levine and I differ is his conclusion 

in Part I of his opinion that the state improperly used its religion-based 

reason to oppose the defendant’s race-based objection. In my opinion, 

such a religion-based reason was both facially race-neutral (because 

religion and race are obviously two different things facially) and 

genuinely race-neutral (because the defendant did not satisfy his burden 

of persuasion to show that the state was using its religion-based reason 

as a pretext to strike the prospective juror because of her race). Thus, 

the trial court properly overruled the defendant’s race-based objection.

Judge Levine’s conclusion relies in part on our opinion in Landis v. 

State, 143 So. 3d 974 (Fla. 4th DCA 2014). However, Landis is 

distinguishable.

In Landis, the defendant was charged with trafficking in cocaine. 143 

So. 3d at 976. The trial court had asked the prospective jurors to answer 

a questionnaire including their occupation. Id. The prospective juror at 

issue, whom the trial court later would describe as either AfricanAmerican, Indian, or “Island,” identified his occupation as a kitchen 

manager. Id. Although the state and the defense questioned the 

remainder of the panel, neither the state nor the defense posed any 

questions to this prospective juror inquiring about his experience or his 

ability to be fair and impartial. Id.
23

When the state requested a peremptory strike of this prospective 

juror, the defense objected and requested a race-neutral reason for the 

strike. Id. The state responded: “Judge, he’s a kitchen manager. 

Although that means nothing to your honor or counsel. I worked in a 

restaurant a lot. A lot of personal drugs run rampant. I don’t want a 

person like that on my jury panel.” Id. (emphasis added).

After the state provided this explanation, the trial court stated, “The 

reason you offered is genuine and I will allow your strike.” Id. In 

accepting the state's argument, the trial court simply noted that, just as 

some attorneys have an aversion to accepting teachers on juries, it is 

permissible to use a discretionary strike on a juror solely on the basis of 

their employment within an industry that allegedly has a high rate of 

drug use. Id. at 978. Thereafter, another prospective juror, a white male 

who informed the court that he managed several family owned 

restaurants, was accepted as an alternate without objection. Id. at 976.

On appeal, the defendant argued that the trial court erred by failing to 

make a suitable finding that the proffered race-neutral reason for the

strike was genuine. Id. at 977. We agreed with the defendant and 

reversed. Id. at 978. We reasoned, in pertinent part:

On this record, it does not appear that the trial court 

performed a legally sufficient genuineness analysis, stating 

only that it “found [the State’s reason] to be genuine and not 

pretextual.” In accepting the State’s argument, the trial 

court simply noted that, just as some attorneys have an 

aversion to accepting teachers on juries, it is permissible to 

use a discretionary strike on a juror solely on the basis of 

their employment within an industry that allegedly has a 

high rate of drug use. This alone is insufficient to show that 

the trial court properly considered the issue of genuineness.

. . . 

If the record lacks any indication that the trial court 

considered the totality of the 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 and give deference to the trial court.

Id. at 978. Based on those initial observations, we ultimately concluded:
24

Here, the challenged . . . prospective juror was similarly 

situated to the white male alternate juror who was accepted 

without challenge, despite that fact that he had also 

managed several family owned restaurants. As a result, the 

trial court should have made further inquiry into the 

challenged strike.

Id. at 981.

Here, when the state sought to use a peremptory strike on the 

prospective African-American juror based on her being a Jehovah’s 

Witness, the state’s race-neutral explanation for the strike was based on 

the prosecutor’s twenty years of experience screening other Jehovah’s 

Witnesses as prospective jurors who uniformly said they “can’t sit in 

judgment” of others. The genuineness of that race-neutral explanation is 

more convincing than the Landis prosecutor’s rank speculation that the 

prospective juror might be sympathetic to the defendant in a drug 

prosecution because “I worked in a restaurant a lot. A lot of personal 

drugs run rampant.” Id. at 976. An additional distinguishing fact 

between the instant case and Landis is that the record here does not 

mention another prospective juror who was similarly situated to the 

prospective juror at issue but who was a different race, i.e., a Jehovah’s 

witness who was not an African-American, whereas in Landis, our 

opinion relied in part on the fact the challenged prospective juror was 

similarly situated to a white male alternate juror who was accepted 

without challenge, despite that fact that the alternate also had managed 

several family owned restaurants. The trial court appears to have 

considered the totality of these circumstances by commenting, “Listen, 

she’s a Jehovah Witness . . . additionally I want to point out . . . there’s a 

number of other African Americans on the jury, I think that based on the 

totality of the circumstances I think it rises to the legal of a non [race-

]based reason.”

Conclusion

Having explained my opinions above, I concur with Judge Levine’s 

ultimate conclusion to reverse the defendant’s conviction and remand for 

a new trial. As I stated in the introduction to this concurring opinion, I 

agree with Judge Levine’s well-reasoned conclusions in Parts II and III of 

his opinion that the trial court erred in overruling the defendant’s 

religion-based objection based on the prospective juror’s answers to the 

questions posed to her. A new trial is required.

MAY, J. dissenting. 
25

The future of the peremptory challenge is tested in this appeal from a 

premeditated murder conviction. I respectfully dissent from the majority 

opinion in part. I would affirm the conviction.

The majority accurately recites the questions, answers, and 

discussion concerning the stricken venire member so I will not repeat 

them here.2 Suffice it to say that the State moved to strike an African 

American venire member. Defense counsel asked for a race neutral 

reason, and it received one. So, the issue here is not whether the court 

erred in striking an African American venire member without a genuine 

race neutral reason. Rather, the issue morphed into whether the race 

neutral reason, which included the venire member’s ability to be fair and 

impartial due (in part) to her religious beliefs, violated the defendant’s 

constitutional rights.

The preservation issue relates to whether defense counsel preserved 

the religious-based objection, for it is clear that defense counsel 

preserved the race-based objection, and the State provided a reason 

other than race. I agree with the majority that both the race and 

religious based objections for the strike were preserved. But, I disagree 

that the State’s exercise of its peremptory strike violated any 

constitutional right of the defendant. 

We review a trial court’s decision on a peremptory strike to determine 

if it was clearly erroneous. Rodriguez v. State, 826 So. 2d 494, 495 (Fla. 

4th DCA 2002). 

Here, the prospective juror filled out a questionnaire, indicating she 

had been a juror in a civil trial and listing her hobbies as “reading, 

witnessing a Jehovah Witness.” Upon further questioning, it was 

determined that she had been the victim of a burglary and her brother 

was presently in jail for a crime involving a gun, which was prosecuted 

by the same Broward County State Attorney’s Office that was 

prosecuting this case. She stated however that she could be fair and 

impartial.

The State explained its concern over what it perceived as a heightened 

burden of proof expressed by the venireperson and its general concern 

that members of this religion have previously indicated a refusal to stand 

2 We denied a subsequent petition for writ of prohibition on the juror issue. 

Bilotti et al. v. State, No. 4D15-1687 (Fla. 4th DCA May 1, 2015) (dismissing the 

petition without prejudice by court order).
26

in judgment of others. The trial court accepted the State’s reason for the 

strike as genuine and struck the prospective juror. The defendant now 

appeals.

• The History of Peremptory Challenges

Over a century ago, the United States Supreme Court described the 

peremptory challenge as “one of the most important of the rights secured 

to the accused.” Pointer v. U.S., 151 U.S. 396, 408 (1894). Peremptory 

challenges are rooted in English common law. See John P. Marks, Bader 

v. State: The Arkansas Supreme Court Restricts the Role Religion May Play 

in Jury Selection, 55 Ark. L. Rev. 613, 622 (2002). The founders of the 

United States “preserved the English peremptory system to ensure that 

jurors are impartial and will make determinations solely on the basis of 

the evidence.” Michael J. Plati, Religion-Based Peremptory Strikes in 

Criminal Trials and the Arizona Constitution: Can They Coexist?, 26 Ariz. 

St. L.J. 883, 885 (1994).

“The essential nature of the peremptory challenge is that it is one 

exercised without a reason stated, without inquiry and without being 

subject to the court’s control.” Swain v. Alabama, 380 U.S. 202, 220 

(1965). Peremptory challenges are often “exercised upon the ‘sudden 

impressions and unaccountable prejudices we are apt to conceive upon 

the bare looks and gestures of another.’” Id. (quoting Lewis v. U.S., 146 

U.S. 370, 376 (1892)).

In Florida, a criminal defendant is guaranteed the right to a trial by 

an impartial jury, which is accomplished in part by the use of the 

peremptory challenge. State v. Alen, 616 So. 2d 452, 453 (Fla. 1993). A 

peremptory challenge can, however, be a tool that can be transformed 

into a disguise for discrimination against distinct groups of people. Id.

A prosecutor cannot exercise peremptory challenges solely on account 

of a prospective juror’s race. Batson v. Kentucky, 476 U.S. 79, 80 (1986). 

Florida has extended this protection to ethnic groups, if the group is a 

“cognizable class.” Alen, 616 So. 2d at 454.

Indeed, we have previously held it was error to allow a peremptory 

challenge based on the prospective juror’s Pakistani ethnicity or Muslim 

religion alone. Olibrices v. State, 929 So. 2d 1176, 1180 (Fla. 4th DCA 

2006). The Third District also held the striking of a venire member based 

solely on a Jewish sounding last name was unconstitutional. Joseph v. 

State, 636 So. 2d 777, 779 (Fla. 3d DCA 1994).
27

But, the United States Supreme Court has not yet extended Batson to 

peremptory challenges based on religion.3 See State v. Davis, 504 

N.W.2d 767 (Minn. 1993), cert. denied, 511 U.S. 1115 (1994). Perhaps 

this is because of the unique place the peremptory challenge occupies in 

our jurisprudence. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148 

(1994) (providing that gender and race are unconstitutional proxies for 

juror impartiality, and reaffirming the Court’s commitment to jury 

selection procedures free from group stereotypes rooted in historical 

prejudice).

In J.E.B., Justice O’Connor expressed her concern for the unique 

importance of the peremptory challenge. “Limiting the accused’s use of 

the peremptory challenge is a ‘serious misordering of our priorities,’ for it 

means ‘we have exalted the right of citizens to sit on juries over the rights 

of the criminal defendant, even though it is the defendant not the jurors, 

who faces imprisonment or even death.’” Id. at 150 (O'Connor, J., 

concurring) (citations omitted).

“Requiring the defendant to show actual bias-the standard applicable 

to cause challenges-for the forced expenditure of a peremptory challenge 

renders the separate statutory grant of peremptory challenges totally 

meaningless.” Busby v. State, 894 So. 2d 88, 100 (Fla. 2004). “The fact 

that some unbiased juror may be excused in the process is an affordable 

price to pay for removing doubts about a particular juror’s impartiality 

and competence, especially when the vote of one biased juror can make a 

critical difference.” Davis, 504 N.W.2d at 770.

3 At the state level, courts have been torn on whether Batson should be 

extended to religion. Compare State v. Purcell, 18 P.3d 113, 121-22 (Ariz. Ct. 

App. 2001) (holding that Batson encompasses peremptory challenges based on 

religious affiliation), Fields v. People, 732 P.2d 1145, 1153 n.15 (Colo. 1987)

(concluding that peremptories based on religious affiliation violate at least state 

constitution), State v. Hodge, 726 A.2d 531, 552-53 (Conn. 1999) (holding that 

federal law prohibits peremptories based on religious affiliation), and State v. 

Levinson, 795 P.2d 845, 849-50 (Haw. 1990) (concluding that peremptories 

based on religious affiliation violate at least state constitution), with Davis, 504 

N.W.2d at 771 (declining to extend Batson to strikes based on religious 

affiliation), State v. Gowdy, 727 N.E.2d 579, 586 (Ohio 2000) (holding religious 

beliefs are a race-neutral and non-pretextual basis for exercising a peremptory 

challenge because religion is often the foundation for an individual’s moral 

values), Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (holding 

that state interests in peremptory challenges justify excluding prospective 

jurors based on their religious affiliation), and James v. Commonwealth, 442 

S.E.2d 396, 398 (Va. 1994) (holding the venireperson’s display of a religious 

symbol was a race neutral reason for exercising a peremptory challenge).
28

• This Case

Here, the venireperson informed the court she was a Jehovah’s 

Witness in her response to a questionnaire. The court asked if her 

religion would prevent her from being impartial and she said “if the 

evidence that’s provided to me is clear cut and concise I would be able 

to.” (emphasis added). The State responded that the venireperson’s 

need for “clear cut and concise” evidence indicated a higher burden of 

proof than beyond a reasonable doubt. The question then is whether the 

record supports the trial court’s decision that the State’s reasoning was 

genuine.

Our Constitution forbids the use of peremptory challenges based 

solely on race and gender. Alen, 616 So. 2d at 453-54; Abshire v. State, 

642 So. 2d 542, 543-44 (Fla. 1994). But, a prospective juror’s actual 

beliefs can be a proper basis for exclusion. In fact, we have upheld the 

race-neutral strike of an African American church pastor based on a 

prosecutor’s belief that the pastor would be too sympathetic despite the 

pastor saying he could remain impartial. See Rodriguez v. State, 826 So. 

2d 494 (Fla. 4th DCA 2002). And, our supreme court upheld the striking 

of a venire member because she was a psychology teacher and Catholic 

as race-neutral. Happ v. State, 596 So. 2d 991 (Fla. 1991), rev’d on 

other grounds, 506 U.S. 949 (1992).

The majority suggests that because the prospective juror indicated 

she could be fair and impartial, it must be true. But, “where a 

prospective juror is challenged for a race-neutral reason, the fact that the 

juror asserts that he or she can nevertheless be fair and impartial does 

not mean that the challenging party must be satisfied with the response.” 

Cunningham v. State, 838 So. 2d 627, 630 (Fla. 5th DCA 2003) (citing 

Symonette v. State, 778 So. 2d 500, 503 (Fla. 3d DCA), rev. denied, 794 

So. 2d 606 (Fla. 2001)); see also Peters v. State, 874 So. 2d 677, 679 (Fla. 

4th DCA 2004) (“[C]lose cases should be resolved in favor of excusing the 

juror rather than leaving a doubt about the juror’s impartiality.”).

The State presented a facially race-neutral reason for the strike, the 

heightened burden of proof expressed by the prospective juror. In 

addition, the prospective juror admitted during voir dire that she had 

been the victim of a burglary and her brother was presently in jail for a 

crime involving a gun, which was prosecuted by the Broward County 

State Attorney’s Office even though she denied it would affect her ability 
29

to serve. The court also noted the prospective juror wavered at times, 

especially considering sentencing.

“There is no specific threshold of neutrality that must be satisfied by 

the party explaining the peremptory strike”; there just needs to be a 

race-neutral reason. Cobb v. State, 825 So. 2d 1080, 1083 (Fla. 4th 

DCA 2002) (citation omitted). “[W]e must rely on the superior vantage 

point of the trial judge, who is present, can consider the demeanor of 

those involved, and get a feel for what is going on in the jury selection 

process.” Id. at 1086 (citation omitted).

Nevertheless, the majority suggests that the religious-based reasons 

given here were insufficient or illegitimate to justify the striking of the 

venireperson, and suggests the State struck the venireperson solely on 

her religion. The majority is mistaken. 

The record reflects the State expressed its concern about the 

venireperson’s ability to stand in judgment of others as expressed by her 

need for clear and concise evidence, a burden the State felt exceeded the 

requisite burden of proof. The trial court also noted the venireperson’s 

concern about the sentencing of the defendant. And while not expressed 

by the trial court, the prospective juror had explained that she was a 

victim of a burglary and had a family member imprisoned for a crime 

involving a gun.

The majority also makes a point that the State objected to the 

venireperson before having the opportunity to question her about her 

beliefs. While this may be true, the objection alerted the court to the 

issue, and allowed the court to arrange for the prospective juror to be 

questioned alone without embarrassing her in front of the other 

prospective jurors or tainting the other jurors. Before the court 

determined the State’s strike was genuine, the State did question her

about her beliefs.

The majority relies in part on the court’s expressed opinion that it 

would be malpractice for a prosecutor to allow a Jehovah’s Witness to 

remain on the jury. Significantly, that expression occurred after the 

court determined the State’s reason—its concern about the heightened 

burden of proof—was genuine.

Joseph v. State, 636 So. 2d 777 (Fla. 3d DCA 1994), does not dictate a 

reversal in this case. There, the Third District reversed a conviction 

when the trial court allowed a strike based solely on the venireperson’s 

last name, connoting membership in the Jewish faith. It did so relying 
30

on State v. Alen, 616 So. 2d 4512 (Fla. 1993), and yet it was unclear 

whether the venireperson in Joseph was even a member of the Jewish 

faith.

The majority attempts to distinguish Rodriguez v. State, 826 So. 2d 

494 (Fla. 4th DCA 2002), by suggesting the State’s strike in that case 

was based solely on the prospective juror’s occupation. That occupation 

happened to be of a religious nature. And, the State’s concern that 

someone in a religious occupation might have difficulty being fair and 

impartial is no different than someone of a religious background having 

the same difficulty due to their religious beliefs.

Whatever spin the majority wants to place on Davis, one truth is selfevident. Davis held that Batson should not “be extended to peremptory 

strikes on the basis of religion.” 504 N.W. 2d at 767. 

It did so because the peremptory challenge is necessary when a 

cause challenge is denied by the court. Id. at 770. It did so because 

excusing some unbiased prospective jurors “is an affordable price to pay 

for removing doubts about a particular juror’s impartiality and 

competence . . . .” Id. It did so to allow “the parties to exercise their 

own intuitive judgment with respect to perceived juror bias.” Id.

It did so because “[t]he use of the peremptory strike to discriminate 

purposefully on the basis of religion does not . . . appear to be common 

and flagrant.” Id. at 771. It did so because “there is no indication that 

irrational religious bias so pervades the peremptory challenge as to 

undermine the integrity of the jury system.” Id. 

It did so because 

when religious beliefs translate into judgments on the merits 

of the cause to be judged, it is difficult to distinguish . . . 

between an impermissible bias on the basis of religious 

affiliation and a permissible religion-neutral explanation. . . . 

A juror’s religious beliefs are inviolate, but when they are the 

basis for a person’s moral values and produce societal views 

. . . , it would not seem that a peremptory strike based on 

these societal views should be attributed to a pernicious 

religious bias. 

Id. 
31

And last, the majority suggests that striking a prospective juror based 

solely on membership in a religion, “no matter what the juror says during 

voir dire, is an impermissible ‘religious test.’” I respectfully disagree. 

What the prospective juror says during voir dire is critical to the 

determination of whether a strike is pre-textual or genuine. What the 

prospective juror says cannot simply be ignored. Indeed, our supreme 

court has instructed: “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 v. State, 679 So. 2d 759, 764 (Fla. 1996) (emphasis 

added).

Here, the prospective juror acknowledged that if she were required to 

sentence the defendant, she would have difficulty. The prospective juror 

acknowledged being a victim of a burglary. The prospective juror 

acknowledged that her brother was currently serving time having been 

convicted in the same jurisdiction. The prospective juror said she could 

convict the defendant if the evidence was clear and concise.

While her words may not have been legally precise, when all of these 

factors are taken into account, it cannot be said that the State’s strike 

was based solely on the prospective juror’s religion. For that reason, I

dissent from the majority’s decision to reverse. I would affirm the 

conviction and sentence.

* * *

Not final until disposition of timely filed motion for rehearing