DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARK C. CAMPBELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-385

[March 28, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Marni A. Bryson, Judge; L.T. Case No. 502015CF004801A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

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

KLINGENSMITH, J.

In this appeal, we are asked to decide whether a trial court reversibly 

erred by denying a challenge for cause against a potential juror, even 

though that person was not ultimately seated on the jury. Under the 

circumstances of this case, we hold it was error, and reverse for a new 

trial. 

Appellant Mark Campbell was charged with lewd or lascivious 

molestation of a child over the age of twelve, but under sixteen; showing 

obscene material to a child; and lewd or lascivious exhibition in the 

presence of a child. During jury selection, defense counsel asked if any

juror agreed that children do not lie about sexual abuse. One potential 

juror, a social worker whose agency dealt with two high-profile pedophile 

cases in another state, was specifically asked by counsel about how she 

assessed the credibility of child witnesses. She explained, “I would have 

to be honest in saying my experience in thirty-five years in being a social 

worker, in working with kids, my experience has been that kids don’t lie in 

instances of child abuse and child sexual abuse. I can only talk about my 

experience.” (Emphasis added).
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The trial court attempted to rehabilitate the juror, and advised her that 

jurors are not supposed to imprint their experience on jury instructions or 

the law. When asked if she could follow the law, the juror stated she could. 

However, defense counsel later asked all the prospective jurors to raise 

their hand if they agreed that children do not lie about sexual abuse, to 

which this particular juror responded that she strongly agreed that 

children never lie about sexual abuse and rated the strength of her opinion 

as a “nine out of ten, 9.5.” 

At the conclusion of voir dire, while arguing for cause challenges, 

defense counsel moved to strike this juror because of her candid reaction 

to the nature of the case and the feeling that she would potentially find 

appellant guilty if he decided not to testify. The trial court denied the 

challenge for cause, and explained it had successfully rehabilitated the 

entire jury pool by instructing them to consider and assess the credibility 

of each witness, regardless of age, in light of all the testimony and evidence 

presented during trial. 

Defense counsel ultimately used a peremptory challenge on the social 

worker and another juror after cause challenges against them were also 

denied. Defense counsel then requested two additional peremptory 

challenges to exercise against two other specifically identified jurors, in 

place of the two cause challenges that were denied. This request was 

rejected by the trial court, and both of the identified jurors served on the 

jury panel. 

Appellant was found guilty of all three charges, sentenced to twentyfive years in prison, and was designated a sexual offender. This appeal 

followed. 

“The standard of review of a trial court’s ruling on a cause challenge is 

one of abuse of discretion. . . . Abuse of discretion occurs when the record 

reveals reason to doubt impartiality.” Ranglin v. State, 55 So. 3d 744, 746 

(Fla. 4th DCA 2011). The failure to strike a juror for cause is not subject 

to a harmless error analysis. See Bryant v. State, 765 So. 2d 68, 69 (Fla. 

4th DCA 2000). 

As a general rule, denying a challenge for cause is not prejudicial if the 

objectionable juror does not serve and is not replaced by an objectionable 

juror. See Penn v. State, 574 So. 2d 1079, 1081 (Fla. 1991). An 

objectionable juror “must be an individual who actually sat on the jury 

and whom the defendant either challenged for cause or attempted to 

challenge peremptorily or otherwise objected to after his peremptory 
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challenges had been exhausted.” Croce v. State, 60 So. 3d 582, 585 (Fla. 

4th DCA 2011) (quoting Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990)). 

In Trotter, the defendant claimed the trial court erred in failing to excuse 

four prospective jurors for cause, which forced the defense to exercise four 

peremptory challenges to remove them. 576 So. 2d at 692. Trotter argued 

that he was entitled to a new trial because he exhausted all peremptory 

challenges and his request for an additional peremptory challenge was 

denied. Id. The Florida Supreme Court upheld Trotter’s convictions 

because he failed to show that a biased juror was seated and served on 

the deliberating panel. Id. at 692-93. 

As the Florida Supreme Court explained: 

Under Florida law, “[t]o show reversible error, a defendant 

must show that all peremptories had been exhausted and that 

an objectionable juror had to be accepted.” Pentecost v. State, 

545 So. 2d 861, 863 n.1 (Fla. 1989). By this we mean the 

following. Where a defendant seeks reversal based on a claim 

that he was wrongfully forced to exhaust his peremptory 

challenges, he initially must identify a specific juror whom he 

otherwise would have struck peremptorily. This juror must be 

an individual who actually sat on the jury and whom the 

defendant either challenged for cause or attempted to 

challenge peremptorily or otherwise objected to after his 

peremptory challenges had been exhausted. The defendant 

cannot stand by silently while an objectionable juror is seated 

and then, if the verdict is adverse, obtain a new trial. 

Id. at 693 (emphasis added) (footnotes omitted). Trotter’s request for an 

additional peremptory challenge was not made in connection with any 

particular juror, but was a general request for a challenge to exercise in 

the future. Id. at 693 n.7. 

Unlike that case, appellant has successfully met both criteria, which 

entitles him to a new trial. First, we agree that the trial court erred by 

denying the challenge for cause as to the social worker. As we recently 

said in Rentas v. State, “[a] juror is not impartial when one side must 

overcome a preconceived opinion in order to prevail.” 43 Fla. L. Weekly 

D129, D130 (Fla. 4th DCA January 19, 2018) (quoting Reid v. State, 972 

So. 2d 298, 300 (Fla. 4th DCA 2008)). There, prospective jurors expressed 

firm beliefs about purported false confessions by defendants, especially in 

cases involving child molestation, even though attempts were made to 

rehabilitate them. Id. at D129. However, a trial court’s attempt to 
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rehabilitate a juror does not automatically overcome that juror’s inherent 

bias. See Montozzi v. State, 633 So. 2d 563, 565 (Fla. 4th DCA 1994) 

(holding it was error to deny a challenge for cause where prospective juror 

expressed disapproval of the kind of activity defendant was involved in 

based on her experiences). 

In Montozzi, we stated that “[w]hile this is indeed an area of trial judge 

discretion, nevertheless we have ordered new trials ourselves where we 

were convinced of the existence of reasonable doubts.” Id. We continued:

Few jurors would resolutely continue to admit that they have 

a bias after having a prosecutor and a trial judge cloak them 

in a duty to be fair. Some answers by prospective jurors 

should simply be deemed alone disqualifying, no matter how 

earnestly counsel and the trial judge seek to save them. In 

this case, the bell earlier rung by this juror was sounded again 

even while she was being “rehabilitated.” 

Id. 

Here, the juror rang the proverbial bell twice, one coming after the 

court’s attempt at rehabilitation. Although she agreed that she could put 

aside her prior experiences when questioned by the trial judge, she 

nonetheless doubled-down on her previous statement that children never 

lie about sexual molestation after further questioning by defense counsel. 

Thus, any prior concern about the juror’s ability to participate was not 

dissipated after the court’s instruction. See Cason v. State, 760 So. 2d 

283, 284 (Fla. 4th DCA 2000). 

Second, appellant specifically identified an objectionable juror that 

would have been stricken using the additional peremptory challenge 

requested when the cause challenge was improperly denied. After the 

request for additional challenges was rejected, the identified objectionable 

juror was seated on the jury. Therefore, the process set forth by the Florida 

Supreme Court in Trotter was followed. 576 So. 2d at 693. 

We remand this case to the trial court for a new trial. Because we do 

so, we find it unnecessary to address the other issues raised by appellant 

in this appeal and affirm those without comment.

Reversed and remanded. 

CIKLIN and LEVINE, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.