DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ROBERT E. GREATHOUSE,

Appellant, 

v.

STATE OF FLORIDA,

Appellee.

No. 2D22-990

September 27, 2023

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, 

Judge.

Howard L. Dimmig, II, Public Defender, and Gary R. Gossett, Jr., Special 

Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and William C. Shelhart, 

Assistant Attorney General, Tampa, for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

A jury found Robert Greathouse guilty of sexual battery. On 

appeal, Greathouse argues that the trial court erred in denying him an 

additional peremptory challenge to remedy its earlier failure to strike for 

cause a juror who had suggested that she could not be fair and 

impartial. Although we agree that the court erred in failing to strike that 

juror for cause and denying Greathouse an additional peremptory 

challenge, we nevertheless affirm because Greathouse did not preserve 
2

this argument. We write to explain why.1

Background

Prospective juror Ashley Mehr stated during voir dire that she had 

gotten the "heebie jeebies" when she first learned from the trial court that 

Greathouse had been charged with sexual assault. Mehr, an elementary 

school teacher, attributed that reaction to having heard several students 

over the years recount their experiences of sexual abuse. The following 

exchange then occurred between defense counsel and Mehr:

[DEFENSE COUNSEL] MS. SEIFER-SMITH: Okay. And 

is that going to be something that's going to—I mean, it's 

been sticking with you all day for sure. Is that something 

that's going to carry throughout the trial for you?

PROSPECTIVE JUROR MEHR: Kind of. I mean, it 

could.

. . . .

MS. SEIFER-SMITH: Okay. And so really the reason 

I'm asking the question is if—if—if it's going to affect your 

decision-making in this case in some way, right, because the 

purpose of a juror is not to, you know, wipe your slate totally 

clean. Obviously we all come into this with our own life 

experiences. It's just whether or not you can be fair and 

impartial to the State and fair and impartial to the defendant 

in this case, Mr. Robert Greathouse.

So it sounds like for you this is not the right case for you 

because you have some concerns about your ability to remain 

fair and impartial because of the experiences that you've had 

as a teacher.

PROSPECTIVE JUROR MEHR: I would say that is valid, 

yes.

1 We reject without further comment Greathouse's other arguments 

on appeal, including those concerning his for-cause challenges to other 

jurors. 
3

(Emphasis added.)

That was the last thing Mehr said. No one asked her any 

follow up questions. Nor had Mehr answered any earlier questions 

that might have cast her reply—"I would say that is valid"—in a 

different light.

When Greathouse subsequently moved to strike Mehr for 

cause, the trial court did not recall what Mehr had said. The State 

then tried to refresh the court's recollection, even agreeing with 

defense counsel that Mehr had expressed doubt about her ability to 

be fair and impartial. Indeed, the State went one step further and 

suggested that the court ask Mehr additional questions to 

rehabilitate her. The court, however, rejected the suggestion and 

summarily denied Greathouse's motion. 

After Greathouse was forced to use his sole remaining peremptory 

challenge to keep Mehr off the jury, he had none left to strike Tanya 

King-Florio, another juror whom he had also previously and 

unsuccessfully moved to strike for cause.2 Accordingly, he moved for an 

additional peremptory challenge to strike King-Florio. By that point, 

however, only one other prospective juror remained. Concerned with the 

dwindling venire, the trial court asked: "So you don't want a jury then, is 

what you're telling me? You're asking for one [peremptory], or are you 

asking for more than that, or what? You've got one potential juror left." 

Defense counsel did not directly respond to the court's question but said 

2 Greathouse moved to strike King-Florio for cause because when 

asked whether her background as an educator would make her more 

sympathetic to victims of abuse, King-Florio responded, "I don't want to 

say that before I've heard all of the evidence, but I am sensitive to the 

material."
4

only, "I'm asking to—I'm asking for either the cause challenge or for an 

additional peremptory, so that we can strike Ms. King-Florio." The court 

declined to strike King-Florio, who thus became the sixth juror. 

That left the trial court with the task of seating an alternate juror. 

Based on concerns about the remaining prospective juror's fluency in 

English, Greathouse asked that she also be excused. The court obliged, 

after which the following exchange occurred:

THE COURT: So we're going with six, is that the plan? 

Or, is there somebody you can suggest, that—that the State 

already kicked, that you can live with? I'm not sure I'm going 

to ask you to give up one of the ones you already kicked. It's 

either that, or we go with six.

[PROSECUTOR] MS. SHERWOOD: We'll take Samuel 

Moore back, as an alternate, if that is something the Defense 

wants to do.

THE COURT: You want Moore as an alternate, 

Defense? It's the only way I know how to do it. I don't like 

going with only six. If you want to do that, we can. If 

somebody has an emergency, we're mistrying it, if you want. 

I'm not asking you to give up one you already kicked yourself. 

I don't think that—that would stretch the bounds of 

propriety. But, if they used one, and you seem to like males 

more than females, Moore would be their suggestion.

Do you want him as an alternate?

. . . .

[DEFENSE COUNSEL] MS. SEIFER-SMITH: We'll 

accept Mr. Moore as an alternate.

THE COURT: Okay. So Moore is going to be an 

alternate.

(Emphasis added.)

The trial court then confirmed with the parties the final 
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composition of the jury—six plus one alternate—reading off each juror's 

name. Greathouse made no further objection at that time. Nor did he do 

so when the court then called the venire back into the courtroom, 

announced the jury, and swore the jurors in.

Analysis

We review for an abuse of discretion the trial court's denial of a 

motion to strike a juror for cause. See Castro v. State, 644 So. 2d 987, 

990 (Fla. 1994).3 "A juror must be excused for cause if any reasonable 

doubt exists as to whether the juror possesses an impartial state of 

mind." Kopsho v. State, 959 So. 2d 168, 170 (Fla. 2007). Any 

"ambiguities or uncertainties about a juror's impartiality should be 

resolved in favor of excusing the juror." Carratelli v. State, 961 So. 2d 

312, 318 (Fla. 2007); see also Thomas v. State, 958 So. 2d 1047, 1050 

(Fla. 2d DCA 2007) ("In close cases, 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." (citing Segura v. State, 921 So. 2d 

765, 766 (Fla. 3d DCA 2006))).

Considering this authority, we conclude that the trial court erred in 

failing to excuse Mehr for cause. Her response during voir dire created 

uncertainty regarding her ability to be fair and impartial, see Sears v. 

State, 307 So. 3d 746, 754 (Fla. 4th DCA 2020) (holding that a juror's 

evasive answer to the question "can you be fair?" raised a reasonable 

doubt that the juror could render a verdict based solely on the evidence 

3 We apply this deferential standard because "the trial court has 

the opportunity to observe and evaluate the prospective juror's demeanor 

and credibility." Castro, 644 So. 2d at 990 (citing Lambrix v. State, 494 

So. 2d 1143, 1146 (Fla. 1986)). We note, however, that the trial court in 

this case did not appear to have any independent recollection of Mehr's 

responses.
6

and the law), and neither the State nor the court asked any follow-up 

questions that might have rehabilitated her, see Marquez v. State, 721 

So. 2d 1206, 1207 (Fla. 3d DCA 1998) ("When a juror's last response 

indicates that the juror is potentially prejudiced, and the response is not 

retracted or modified, the juror must be stricken for cause." (citing 

Wilkins v. State, 607 So. 2d 500 (Fla. 3d DCA 1992))).

"[E]xpenditure of a peremptory challenge to cure the trial court's 

improper denial of a cause challenge constitutes reversible error if a 

defendant exhausts all remaining peremptory challenges and can show 

that an objectionable juror has served on the jury." Busby v. State, 894 

So. 2d 88, 96–97 (Fla. 2004); see also Trotter v. State, 576 So. 2d 691, 

693 (Fla. 1990). To establish prejudice, the defendant need not show 

that the "objectionable juror" was biased; rather, the defendant need 

show only that the juror "actually sat on the jury" and that "the 

defendant either challenged [the juror] for cause or attempted to 

challenge peremptorily or otherwise objected to [the juror] after his 

peremptory challenges had been exhausted." Trotter, 576 So. 2d at 692–

93. But see Deviney v. State, 322 So. 3d 563, 578 (Fla. 2021) (Lawson, 

J., concurring in part and concurring in result) (arguing in favor of 

"reced[ing] from Trotter and replac[ing] its per se [reversible error] rule 

with the harmless error standard set forth in section 924.33, Florida 

Statutes"). Because Greathouse was forced to use his final peremptory 

challenge to strike Mehr and identified King-Florio as an additional 

objectionable juror whom he would have struck, he "satisfied the Trotter

standard for prejudice." See Busby, 894 So. 2d at 97.

But that still leaves the issue of preservation. See Carratelli, 961 

So. 2d at 319–20 ("Even where the reviewing court concludes that a juror 

who actually served on the jury should have been stricken, . . . the court 
7

will not reverse for a new trial if the error has not been preserved."). 

Although there is considerable overlap between the requirements for 

establishing prejudice from the error under Trotter and preserving the 

error for appellate review, they are not identical. To preserve a challenge 

for cause to a prospective juror, a defendant must "object to the juror[], 

show that he or she has exhausted all peremptory challenges and 

requested more that were denied, and identify a specific juror that he or 

she would have excused if possible." Matarranz v. State, 133 So. 3d 473, 

482 (Fla. 2013) (quoting Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 

2000)). As stated above, Greathouse did all of that.

Preservation, however, also requires something more: a renewed 

objection before the jury is sworn. See Joiner v. State, 618 So. 2d 174, 

176 (Fla. 1993) (holding that the defendant had waived his Neil4 objection 

when he accepted the jury immediately prior to its being sworn without 

reserving his earlier objection, leading "to the reasonable assumption 

that he had abandoned, for whatever reason, his earlier objection"); see 

also Carratelli, 961 So. 2d at 318–19, 319 n.3 ("Although Joiner involved 

a Neil objection, district courts have applied it to jury selection issues in 

general, including denial of cause challenges."); Johnson v. State, 763 So. 

2d 1214, 1215 (Fla. 2d DCA 2000) (agreeing with Milstein v. Mut. Sec. Life 

Ins. Co., 705 So. 2d 639 (Fla. 3d DCA 1998), and concluding that a 

defendant who fails to renew his objection to the composition of the jury 

immediately before the jury is sworn fails to preserve the denial of his 

for-cause challenge for appellate review); Milstein, 705 So. 2d at 640 

("The reasoning of Joiner renders it applicable to jury selection generally, 

and it is not confined by its terms or its logic solely to situations 

involving Neil challenges.").

4 State v. Neil, 457 So. 2d 481, 486 (Fla. 1984).
8

"Th[is] rule is not a mere technicality designed to place onerous 

burdens on an overstressed trial counsel." Carratelli, 961 So. 2d at 318. 

Rather, it "gives the court one last chance to correct a potential error and 

avoid a possible reversal on appeal. It also allows counsel to reconsider 

the prior objection once a jury panel has been selected." Id. at 319; see 

also Milstein, 705 So. 2d at 640 ("Joiner rests on the idea that it is a 

severe step to overturn an otherwise error-free trial based solely on a jury 

selection error, and particularly on an error involving peremptory 

challenges. Joiner thus mandates that the claimed error be called to the 

trial court's attention once more prior to the swearing of the jury, so that 

the court will be made aware that the objecting party is insisting on the 

objection, and so that the court will have a last clear chance to take 

corrective action if needed."). Failure to lodge the renewed objection after 

the jury is announced but before it is sworn indicates abandonment of 

the initial objection. Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005) 

("By not renewing the objection prior to the jury being sworn, it is 

presumed that the objecting party abandoned any prior objection he or 

she may have had and was satisfied with the selected jury.").

Here, after the trial court confirmed the final panel with the parties, 

it was incumbent upon Greathouse to speak up once again, to give the 

court "one last chance to correct a potential error." See Carratelli, 961 

So. 2d at 319; see also Geibel v. State, 795 So. 2d 285, 286 (Fla. 3d DCA 

2001) ("In order for the jury selection objections to be preserved, they 

must be renewed before the jury is sworn even if the trial judge did not 

ask if counsel approved the jury." (citing Milstein, 705 So. 2d at 639)). 

The court's comments when it denied Greathouse's request for an 

additional peremptory to strike King-Florio indicated that its denial had 

been based at least in part on its concern that there would not be 
9

enough jurors for a panel. Because of the State's willingness to give up 

one of its strikes, however, the final panel not only had a full complement 

but also an alternate. And although the court had expressed reluctance 

to proceed without an alternate, it also had stated that it would 

nonetheless do so if that was what the defense wanted. Greathouse 

could have renewed his objection to King-Florio sitting on the jury and 

asked that Moore (the alternate) replace King-Florio and that the trial 

proceed without an alternate. Cf. Joiner, 618 So. 2d at 176 ("Had Joiner 

renewed his objection or accepted the jury subject to his earlier Neil

objection . . . [s]uch action would have apprised the trial judge that 

Joiner still believed reversible error had occurred. At that point the trial 

judge could have exercised discretion to either recall the challenged juror 

for service on the panel, strike the entire panel and begin anew, or stand 

by the earlier ruling."). Instead, Greathouse affirmatively accepted Moore 

as an alternate and did not raise any objection after the final composition 

of the jury was confirmed and before it was sworn, thereby suggesting 

that he was satisfied with the jury as it was and depriving the court of 

the "one last chance" that Joiner requires. See Carratelli, 961 So. 2d at 

319. We thus conclude that Greathouse abandoned his objections to the 

jury.5

In sum, although we agree that the trial court erred in denying 

5 We reject Greathouse's contention that the trial court's error in 

refusing the additional peremptory, even if unpreserved, constitutes 

fundamental error. "Fundamental error is error that 'reaches down into 

the validity of the trial itself to the extent that a verdict of guilt could not 

have been obtained without the assistance of the alleged error.' " 

Mendoza v. State, 964 So. 2d 121, 131 (Fla. 2007) (quoting Kilgore v. 

State, 688 So. 2d 895, 898 (Fla. 1996)). As stated above, Greathouse's 

cause challenge to King-Florio lacked merit, and Greathouse has wholly 

failed to show that he would have been acquitted but for King-Florio's 

presence on the jury.
10

Greathouse's challenge to Mehr for cause and not affording him an 

additional peremptory challenge to strike King-Florio, Greathouse failed 

to preserve that error. Because his other claims of error are meritless, 

we affirm the judgment and sentence in all respects.

Affirmed.

KELLY and ATKINSON, JJ., Concur. 

Opinion subject to revision prior to official publication.