Ruibens Salomon v. State of Florida

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          RUIBENS SALOMON,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                            No. 4D2024-0579

                             [April 30, 2025]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry M. Cohen, Judge; L.T. Case No. 2022CF000868AMB.

  Antony P. Ryan, Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, Fourth District, and Richard G. Bartmon, Assistant
Regional Counsel, West Palm Beach, for appellant.

  James Uthmeier, Attorney General, Tallahassee, and Luke R.
Napodano, Senior Assistant Attorney General, West Palm Beach, for
appellee.

FORST, J.

   Appellant Ruibens Salomon appeals his conviction and sentence
rendered after a jury found him guilty of sexual battery on his minor
biological daughter. Principally, Salomon argues the trial court erred in
denying his cause challenge against a prospective juror (“Prospective
Juror”) who expressed his belief that a child “would speak more credibly
and honestly than an adult.” We agree and reverse. As to Salomon’s
remaining arguments on appeal, we summarily affirm without opinion.

                               Background

   During jury selection, defense counsel asked if prospective jurors would
give more credibility to a child witness because the witness was a child.
Prospective Juror raised his hand and the following exchange occurred:

      [Prospective Juror]: Yes. I just want to say I believe a child,
      you know, would speak more credibly and honestly than an
      adult, which gives them time to think about much about what
      one is saying. A child would just naturally comes [sic] out and
      speak, you know, what they saw, what’s on the mind or what
      is before them. So, you know, when I heard [another
      prospective juror’s] statement, it brought me back to even
      some of my children and others that I know and things they
      say to me. It was naturally spoken and its true. I just want
      to pick that up.

      [Defense counsel]: So you would give a little bit more credibility
      to a witness if the witness is a child?

      [Prospective Juror]: Absolutely.

(Emphasis added).

    In a prior exchange, Prospective Juror stated that there are two sides
to a story, “[b]ut a child can be really telling you the truth and if you ignore
that, then what happens? So we have to question that and go from there.”

   At jury selection, defense counsel challenged Prospective Juror for
cause because “[h]e would give more credibility to the witness if the witness
was a child.”       The State replied that Prospective Juror made a
commonsense description because children have less of a filter than
adults, but he did not mean that he would believe children over adults
given all the facts. The trial court denied the cause challenge.

   The defense later renewed the cause challenge against Prospective
Juror. The trial court again denied the challenge, leading to the defense
exercising a peremptory strike on Prospective Juror and requesting an
additional peremptory strike because the defense identified another
prospective juror whom it found objectionable. The trial court denied the
request for an additional peremptory challenge, and the objectionable
juror was seated on the jury.

   The trial court observed that the defense had a continuing objection to
the jury’s composition. The defense renewed its objection prior to the jury
being sworn.

   Following a trial, the jury found Salomon guilty of sexual battery on a
child, while in a familial or custodial position. The trial court adjudicated
Salomon accordingly and sentenced him to 237 months in prison, with
credit for time served. This appeal follows.


                                       2
                                  Analysis

   “‘The validity of a cause challenge is a mixed question of law and fact,
on which a trial court’s ruling will be overturned only for “manifest error,’”
which ‘is tantamount to an abuse of discretion.’” Deviney v. State, 322 So.
3d 563, 570 (Fla. 2021) (quoting Johnson v. State, 969 So. 2d 938, 946
(Fla. 2007)).

   “The jury is an essential instrumentality—an appendage—of the court,
the body ordained to pass upon guilt or innocence.” Matarranz v. State,
133 So. 3d 473, 476–77 (Fla. 2013) (quoting Sinclair v. United States, 279
U.S. 749, 765 (1929)). “Consequently, a failure to ensure that our jury
panels are comprised of only fair and impartial members renders suspect
any verdict reached.” Id. at 477.

   A potential juror may be challenged for cause if “[t]he juror has a state
of mind . . . that will prevent the juror from acting with impartiality.”
§ 913.03(10), Fla. Stat. (2021).

      [I]f there is basis for any reasonable doubt as to any juror’s
      possessing that state of mind which will enable him to render
      an impartial verdict based solely on the evidence submitted
      and the law announced at the trial, he should be excused on
      motion of a party, or by the court on its own motion.

Matarranz, 133 So. 3d at 484 (alteration in original) (quoting Singer v.
State, 109 So. 2d 7, 23–24 (Fla. 1959)).

   “The test for determining juror competency is whether the juror can lay
aside any bias or prejudice and render his verdict solely upon the evidence
presented and the instructions on the law given to him by the court.”
Guardado v. State, 176 So. 3d 886, 897 (Fla. 2015) (quoting Lusk v. State,
446 So. 2d 1038, 1041 (Fla. 1984)).

   A. Preservation

   “[T]o preserve challenges for cause to prospective jurors, the defendant
must ‘object to the jurors, 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,
133 So. 3d at 482 (quoting Kearse v. State, 770 So. 2d 1119, 1128 (Fla.
2000)); see also Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990). The
defendant must also renew “the objection prior to the jury being sworn.”


                                      3
Matarranz, 133 So. 3d at 482 (quoting Carratelli v. State, 961 So. 2d 312,
318 (Fla. 2007)).

   “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.” Campbell v. State, 241 So. 3d 877, 879 (Fla. 4th DCA 2018). “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 challenges had
been exhausted.’” Id. (quoting Croce v. State, 60 So. 3d 582, 585 (Fla. 4th
DCA 2011)).

    Here, Salomon properly preserved his cause challenge by moving to
strike Prospective Juror, exercising a peremptory challenge on Prospective
Juror, exhausting all peremptory challenges, requesting an additional
peremptory strike, and identifying an objectionable juror whom he would
have excused. The trial court denied the request for an additional
peremptory strike and recognized Salomon’s continuing objection to the
jury’s composition. Thus, Salomon properly renewed his objection before
the panel was sworn.

   B. Campbell v. State

   We addressed a situation very similar to the instant case in Campbell.
There, one potential juror, a social worker who dealt professionally with
pedophile cases, was asked in voir dire how she assessed the credibility of
child witnesses. 241 So. 3d at 878. She responded that her “experience
has been that kids don’t lie in instances of child abuse and child sexual
abuse.” Id. (emphasis removed). The trial court attempted to rehabilitate
the juror, advising her that “jurors are not supposed to imprint their
experience on jury instructions or the law.” Id. at 878–79. Such
rehabilitation was to no avail, however, because the potential juror later
stated 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.’” Id. at
879.

   The defense attempted to challenge the potential juror for cause, but
the trial court denied the request, explaining it had rehabilitated the jury
pool. Id. The defense ultimately used a peremptory challenge on the
potential juror and requested an additional peremptory challenge against
a specifically identified objectionable juror, in place of the denied cause
challenge. Id. The trial court denied this request, too. Id.



                                      4
    We held that the trial court erred in denying the cause challenge to the
social worker because she could not be impartial, even after rehabilitation.
Id. at 880. Accordingly, we remanded the case for a new trial because the
defense had specifically identified an objectionable juror who would have
been stricken using the additional peremptory challenge when the cause
challenge was improperly denied. Id.

   C. Application of legal precedent to the instant case

    “[T]he trial court has a unique vantage point in the determination of
juror bias . . . [and] is able to see the jurors’ voir dire responses and make
observations which simply cannot be discerned from an appellate record.”
Deviney, 322 So. 3d at 570–71 (second and third alterations in original)
(quoting Ault v. State, 866 So. 2d 674, 683–84 (Fla. 2003)). “Therefore,
‘[t]he decision to deny a challenge for cause will be upheld on appeal if
there is competent record support for the decision.’” Id. at 571 (alteration
in original) (quoting Barnhill v. State, 834 So. 2d 836, 844 (Fla. 2002)).
“There is hardly any area of the law in which the trial judge is given more
discretion than in ruling on challenges of jurors for cause.” Cook v. State,
542 So. 2d 964, 969 (Fla. 1989).

   Nonetheless, this Court has “consistently held that close cases should
be resolved in favor of excusing the juror.” Bell v. State, 870 So. 2d 893,
895 (Fla. 4th DCA 2004); Vega v. State, 182 So. 3d 848, 850 (Fla. 4th DCA
2016). A prospective juror’s reasonable doubt as to whether he could
render a fair and impartial verdict “should [be] resolved in favor of granting
[the] cause challenge.” Burgess v. State, 248 So. 3d 131, 134 (Fla. 4th
DCA 2018).

   As in Campbell, the potential juror at issue in the instant case
expressed his belief that a child “would speak more credibly and honestly
than an adult.” When asked whether he would give a little bit more
credibility to a witness if the witness was a child, Prospective Juror
responded, “[a]bsolutely.” “[A] juror is not impartial when one side must
overcome a preconceived opinion in order to prevail.” Rentas v. State, 237
So. 3d 368, 372 (Fla. 4th DCA 2018) (quoting Reid v. State, 972 So. 2d
298, 300 (Fla. 4th DCA 2008)). “[T]he mind of the proposed juror should
not contain any element of prejudice for or against either party in a cause
to be tried before him.” Matarranz, 133 So. 3d at 484.

    In the instant case, per Prospective Juror’s statements regarding the
reliability of children’s testimony (“I believe a child . . . would speak more
credibly and honestly than an adult”), a reasonable doubt exists that
Prospective Juror could render an impartial verdict against Salomon

                                      5
because he would have given more credibility to the child Victim than the
adult defendant. See Matarranz, 133 So. 3d at 484; § 913.03(10), Fla.
Stat. (2021).

   “Procedurally, when a prospective juror’s answers suggest
incompetency to be a juror, rehabilitation is generally the proper next
step.” Sears v. State, 307 So. 3d 746, 751 (Fla. 4th DCA 2020); see also
Rentas, 237 So. 3d at 372 (“[A] juror who can lay aside any bias or
prejudice, and render a verdict solely on the evidence presented and the
instructions on the law given by the court, may be permitted to serve on
the case.”); Matarranz, 133 So. 3d at 486 (“Concerns that stem from
misinformation and confusion concerning the law or process are ripe for
discussion and redress through rehabilitation.”). Here, the trial court did
not rehabilitate or even attempt to rehabilitate Prospective Juror.

   As detailed above, Salomon has established that the trial court’s rulings
at issue were prejudicial as “[a] court errs when it ‘force[s] a party to
exhaust his peremptory challenges on persons who should have been
excused for cause. . . .’” Matarranz, 133 So. 3d at 482 (alteration and
omission in original) (quoting Leon v. State, 396 So. 2d 203, 205 (Fla. 3d
DCA 1981)).

   D. The failure to strike a juror for cause in criminal cases is per se
reversible error

    Our supreme court has commanded and adhered to the rule that “it is
reversible error for a court to force a party to use peremptory challenges
on persons who should have been excused for cause, provided the party
subsequently exhausts all of his or her peremptory challenges and an
additional challenge is sought and denied.” Hill v. State, 477 So. 2d 553,
556 (Fla. 1985); accord Matarranz, 133 So. 3d at 483; Kopsho v. State, 959
So. 2d 168, 173 (Fla. 2007); Busby v. State, 894 So. 2d 88, 96–97 (Fla.
2004); Trotter, 576 So. 2d at 693, 693 n.6. To this day, the supreme court
has not permitted a harmless error standard to apply to the failure to
strike a juror in the criminal context.

   As the dissent correctly notes, the Florida supreme court recently
applied the harmless error standard articulated in Special v. West Boca
Medical Center, 160 So. 3d 1251 (Fla. 2014), to the erroneous denial of a
cause strike, but it did so only in the civil context. See Seadler v. Marina
Bay Resort Condo. Ass’n, 376 So. 3d 659, 664–65 (Fla. 2023). In Seadler,
the court held, “harmless error is the appropriate standard for reviewing
the erroneous denial of a properly preserved cause challenge.” Id. at 665.
But the court recognized that because its “analysis in the criminal context

                                     6
has specifically relied on the rights of criminal defendants, we consider the
issue presented here one of first impression and limit our holding to civil
cases.” Id. (emphasis added). The court also opined that its “precedent
regarding the effect of erroneously denied cause challenges in criminal
cases does not apply with equal force in civil cases.” Id. at 664.

  Interestingly, Seadler concluded that the trial court error in that case
was not harmless:

      Florida Rule of Civil Procedure 1.431(d) entitles parties to
      peremptory challenges and is structured to establish parity as
      to the number of peremptory challenges granted to each side
      of a case. Because of established precedent relating to
      preservation of error, the erroneous denial of a cause
      challenge necessarily results in the loss of one of these
      peremptory challenges. Here, had Seadler not expended the
      peremptory challenge on Juror 16, his claim of error would
      have been barred from review. Because he was forced to use
      the peremptory challenge in this manner, he therefore lacked
      the ability to strike Juror 22. And Marina Bay cannot, and
      has not attempted to, demonstrate there is no reasonable
      possibility that Juror 22 did not contribute to the verdict. Its
      theory to the contrary is predicated on its argument that
      jurors are fungible (i.e., that there is no difference between the
      subjectively objectionable Jurors 12 and 22) and does not
      account for the tactical latitude afforded to parties in
      exercising peremptory challenges.

      For this reason, under the facts of this case, we cannot say
      beyond a reasonable doubt that the loss of a peremptory
      challenge did not contribute to the verdict. Thus, applying the
      appropriate harmless error standard, Seadler is entitled to a
      new trial, and we quash the First District’s opinion holding to
      the contrary.

Seadler, 376 So. 3d at 666.

                                Conclusion

   The dissent maintains “‘harmless error is the appropriate standard’ for
determining whether ‘the erroneous denial of a properly preserved cause
challenge’ requires reversal” in both criminal and civil cases. This
sentiment may be in line with Blackstone’s eighteenth-century
commentaries, but it is inapposite to recent Florida supreme court rulings

                                      7
clearly to the contrary. We are bound to apply the express holdings of the
supreme court, not Blackstone. See State v. Morris, 297 So. 3d 594, 597
(Fla. 4th DCA 2020) (“We cannot overlook the rulings of the supreme court
and are required by the rule of law to abide by its holdings.”); Felder v.
King Motor Co. of S. Fla., 110 So. 3d 105, 108 (Fla. 4th DCA 2013) (“It is
axiomatic that stare decisis obligates this court to follow Florida Supreme
Court precedent.” (citation omitted)).

    Here, we cannot conclude that Salomon was judged by a fair and
impartial panel of his peers based on Prospective Juror’s responses during
voir dire, which started a chain of events necessitating the defense’s use
of a peremptory challenge that would otherwise have been utilized to
remove another juror whom the defense found objectionable. Because
“[t]he failure to strike a juror for cause is not subject to a harmless error
analysis,” we reverse the judgment and sentence imposed and remand for
a new trial. Campbell, 241 So. 3d at 879.

   Reversed and remanded.

KLINGENSMITH, C.J., concurs.
ARTAU, J., dissents with opinion.

ARTAU, J., dissenting.

    I respectfully dissent because, in my view, the “per se” error rule first
established by Trotter v. State, 576 So. 2d 691 (Fla. 1990), which this court
followed in Campbell v. State, 241 So. 3d 877, 879-80 (Fla. 4th DCA 2018),
and the majority now applies in this case, cannot be squared with either
the English common law origins of the peremptory challenge or our
supreme court’s holding in Seadler v. Marina Bay Resort Condominium
Association, Inc., 376 So. 3d 659, 665 (Fla. 2023), that “harmless error is
the appropriate standard” for determining whether “the erroneous denial
of a properly preserved cause challenge” requires reversal. While Seadler
limited its holding to civil cases, its reasoning should be applied to the
erroneous denial of a cause challenge in a criminal case where a court’s
denial of a defendant’s cause challenge does not result in a legally
objectionable juror.

   “The peremptory challenge has very old credentials.” Busby v. State,
894 So. 2d 88, 97 (Fla. 2004) (quoting Swain v. Alabama, 380 U.S. 202,
212 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986)). In fact,
cause and peremptory challenges both have their roots in English common
law. See 4 William Blackstone, Commentaries *346-47 (discussing the use
of both cause and peremptory challenges); see also Busby, 894 So. 2d at

                                     8
97-98 (“The right to peremptory challenges became the settled law of
England in the middle ages[.]”).

    At common law, both the Crown and the criminal defendant could
exercise an unlimited number of cause challenges against potential jurors
who were unqualified, including those lacking in impartiality. See 4
William Blackstone, Commentaries *346 (expounding upon the
requirements of jurors, including that of impartiality, and stating that
“challenges for cause . . . may be without stint in both criminal and civil
trials”). But only the criminal defendant could exercise peremptory
challenges, with the Crown being denied any such corresponding right.
See id. at *346-47 (explaining that “the prisoner” was allowed “a certain
number” of “an arbitrary and capricious species of challenge to a certain
number of jurors, without showing any cause at all,” known as “a
peremptory challenge,” with such privilege being “denied to the king by
statute”).

   However, even at common law, it was recognized that “[t]he peremptory
challenges of the prisoner must . . . have some reasonable boundary[,]”
which was initially set at “the number of thirty five.” Id. at *347. The
number of permissible peremptory challenges in a criminal case was later
reduced by statute to no more than twenty. Id. at *348. Even then, if a
criminal defendant attempted to use a twenty-first peremptory challenge,
such challenge was merely “disregarded and overruled.” Id. Thus, under
both English common and statutory law, a criminal defendant could never
exercise more peremptory challenges than he or she was allotted by law.

   Peremptory challenges were also historically regarded as a means “to
correct judicial error” on the question “of juror-bias”—that is, the
erroneous denial of cause challenges—“when there was no appeal from a
criminal conviction[.]” United States v. Martinez-Salazar, 528 U.S. 304,
319 (2000) (Scalia, J., concurring in judgment) (citing Bessette v. W.B.
Conkey Co., 194 U.S. 324, 335-36 (1904)). In other words, “if the
defendant did not correct the error by using one of his peremptories, the
error would not be corrected at all.” Id.; see also Busby, 894 So. 2d at 112
(Bell, J., concurring in part and dissenting in part) (noting “the historical
fact that correcting judicial errors ‘on the spot’ is a primary reason
peremptories were originally granted to parties”). But “the institution of
appeals” did not “exempt[] defendants from using peremptories for this
original purpose, thereby giving them (in effect) additional challenges.”
Martinez-Salazar, 528 U.S. at 319 (Scalia, J., concurring in judgment); see
also Amicus Brief of the State of Florida in Support of Respondent at 9,
Seadler v. Marina Bay Resort Condo. Ass’n, Inc., 376 So. 3d 659 (Fla. 2023)
(No. SC2022-0984) (Because peremptory challenges “cure what [a party]

                                     9
believe[s] to be the erroneous denial of a cause challenge[,]” they “enable
[a party] to cure jury-selection errors before those errors poison the verdict,
thus avoiding the need for costly retrials.” (first citing Busby, 894 So. 2d
at 96-97; and then citing Skilling v. United States, 561 U.S. 358, 395 n.31
(2010))).

   “[I]n Florida, the use of peremptory challenges in criminal trials is a
statutory creation.” Deviney v. State, 322 So. 3d 563, 584 (Fla. 2021)
(Lawson, J., concurring in part and concurring in result); see § 913.08,
Fla. Stat. (2021) (establishing a statutory right to peremptory challenges
in criminal cases); see also Fla. R. Crim. P. 3.350(e) (providing that a “trial
judge may exercise discretion to allow additional peremptory challenges
when appropriate.”). As such, “the loss of a peremptory challenge, without
more, does not violate the right to an impartial jury.” Busby, 894 So. 2d
at 102 (majority opinion) (emphasis added).

   But as the majority points out, Trotter’s “per se” error rule established
that the “expenditure of a peremptory challenge to cure [a] 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” because of the trial
court’s refusal to grant “the same number of additional peremptories as
cause challenges that were erroneously denied.” Busby, 894 So. 2d at 96-
97 (majority opinion) (citing Trotter).

   “Under Trotter, however, ‘objectionable’ does not mean legally
objectionable—a juror who is biased or partial.” Deviney, 322 So. 3d at
585 (Lawson, J., concurring in part and concurring in result). Instead, as
our supreme court explained in Trotter, the juror whom the defendant
specifically identifies as being the one whom the defendant “otherwise
would have struck peremptorily,” if the request for additional peremptories
had been granted, need only be someone whom “the defendant either
challenged for cause or attempted to challenge peremptorily or otherwise
objected to after his [or her] peremptory challenges [were] exhausted.”
Trotter, 576 So. 2d at 693. That is, “[u]nder this standard, a defendant
could object to a clearly neutral or even a defense-friendly juror and still
be entitled to a new trial.” Busby, 894 So. 2d at 109 (Bell, J., concurring
in part and dissenting in part); see also Deviney, 322 So. 3d at 578
(Lawson, J., joined by Canady, C.J., and Grosshans, J., concurring in part
and concurring in result) (observing that “Trotter’s per se rule is clearly
erroneous” as it is inconsistent “with the harmless error standard set forth
in section 924.33, Florida Statutes,” and “thoroughly examined” in
DiGuilio).


                                      10
   Indeed, per se reversal for an error in denying a peremptory strike
would seemingly conflict with our Legislature’s directive to limit reversals
to “error that [has] injuriously affected the substantial rights of the
appellant” or has “resulted in a miscarriage of justice.” § 924.33, Fla. Stat.
(2021) (“No judgment” in a criminal case “shall be reversed unless the
appellate court is of the opinion, after an examination of all the appeal
papers, that error was committed that injuriously affected the substantial
rights of the appellant,” and mandating that “[i]t shall not be presumed
that error injuriously affected the substantial rights of the appellant”); §
59.041, Fla. Stat. (2021) (“No judgment shall be set aside or reversed, or
new trial granted by any court of the state in any cause, civil or
criminal, . . . unless in the opinion of the court to which application is
made, after an examination of the entire case it shall appear that the error
complained of has resulted in a miscarriage of justice.”).

   Moreover, the United States Supreme Court has held that if a criminal
defendant “elects to cure” a trial court’s erroneous denial of a cause
challenge “by exercising a peremptory challenge,” and that defendant “is
subsequently convicted by a jury on which no biased juror sat,” no
deprivation “of any rule-based or constitutional right” can be shown.
Martinez-Salazar, 528 U.S. at 307 (majority opinion); see also Ross v.
Oklahoma, 487 U.S. 81, 88 (1988) (“[W]e reject the notion that the loss of
a peremptory challenge constitutes a violation of the constitutional right
to an impartial jury” because such challenges are simply “a means to
achieve the end of an impartial jury,” meaning that “[s]o long as the jury
that sits is impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment was
violated.”).

   In Seadler, our supreme court held, as previously noted, “that harmless
error is the appropriate standard for reviewing the erroneous denial of a
properly preserved cause challenge” in civil cases. 376 So. 3d at 665 (“[W]e
cannot say that the erroneous denial of a cause challenge is always
harmful[.]”). In reaching this holding, our supreme court explained, with
reference to its prior decision in the criminal case of Davis v. State, 347
So. 3d 315 (Fla. 2022), that “in determining whether a ‘per se’ or a
harmless error standard applies,” the default position must always be “to
the harmless error test, reserving the ‘per se’ rule ‘only for those errors
that always vitiate the right to a fair trial and therefore are always
harmful.’” Seadler, 376 So. 3d at 665 (quoting Davis, 347 So. 3d at 323).

   As our supreme court explained in Seadler, “rather than reflexively
reversing in every case that presents this type of error,” appellate courts
in civil cases are now required to apply “a fact-specific harmless error

                                     11
analysis” when determining whether reversal based on the erroneous
denial of a cause challenge is required. Id. at 667. In so doing, the
supreme court declined to “align itself” in the civil context with those
“federal courts and other state courts that have concluded that any error
in denying a cause challenge is cured, and therefore not reversible error,”
simply because “a party removes the juror utilizing a peremptory
challenge.” Id. Our supreme court reasoned that “[n]either the federal
courts nor the other state courts adopting that standard apply both
Florida’s unique preservation rules in this context and our harmless error
standard as announced in Special [v. West Boca Medical Center, 160 So.
3d 1251 (Fla. 2014)].” Seadler, 376 So. 3d at 667.

   In Special, our supreme adopted a unique harmless error standard for
use in civil appeals that, while based on the harmless error standard
applicable in criminal cases as stated in State v. DiGuilio, 491 So. 2d 1129
(Fla. 1986), was slightly modified for use “in the civil context.” Special,
160 So. 3d at 1256. Under this modified harmless error standard, “the
beneficiary of the error has the burden to prove that the error complained
of did not contribute to the verdict,” or, “[a]lternatively stated, the
beneficiary of the error must prove that there is no reasonable possibility
that the error contributed to the verdict.” Id. This standard differs from
the harmless error test employed in federal court where “the party that
‘seeks to have a judgment set aside because of an erroneous ruling carries
the burden of showing that prejudice resulted.’” Shinseki v. Sanders, 556
U.S. 396, 409 (2009) (quoting Palmer v. Hoffman, 318 U.S. 109, 116
(1943)).

   But in the criminal context, there is no difference between Florida’s
harmless error standard, the federal harmless error standard, and the
common law harmless error standard. Compare Chapman v. California,
386 U.S. 18, 24 (1967) (adopting “the original common-law harmless-error
rule [that] put the burden on the beneficiary of the error either to prove
that there was no injury or to suffer a reversal of his erroneously obtained
judgment”), with DiGuilio, 491 So. 2d at 1135 (“The harmless error test, as
set forth in Chapman and [its] progeny, places the burden on the state, as
the beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed to
the conviction.” (emphasis added)).

    Thus, I dissent from the majority’s application of a “per se” error rule
here without certifying its application to our supreme court as being a
question of great public importance. Accordingly, I would certify the
following question as one of great public importance:

                                     12
  Whether the “per se” error rule first established in Trotter v.
  State, 576 So. 2d 691 (Fla. 1990), and applicable when a
  criminal defendant requests and is denied an additional
  peremptory strike after using such a challenge to cure an
  alleged erroneous cause challenge denial, requires reversal
  even if the denial of the cause challenge and denial of the
  additional peremptory strike is harmless or does not result in
  a legally objectionable juror that is biased or prejudiced
  serving on the defendant’s jury.

                       *         *        *

Not final until disposition of timely filed motion for rehearing.




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