STATE OF FLORIDA, Petitioner, v. SHAWNEST ANGELO IVEY, Respondent. Supreme Court of Florida. Case No. SC18-372. 44 Fla. L. Weekly S269a. December 5, 2019

The Florida Supreme Court recently issued a significant ruling concerning standing objections. In Ivey, the court held that a request for a standing objection to nonspecific things, previously objected to in preliminary proceedings, does not renew a specific objection to a peremptory challenge when the defense has, prior to that request, accepted the jury without reservation.

At trial, after the close of voir dire, but before the jury was finalized, the State moved to peremptorily strike a prospective juror. Noting that this juror was the only African American member of the jury panel, defense counsel asked the State to produce a race-neutral reason for the challenge. The prosecutor explained that she made a joke about the prospective juror during a break without realizing the prospective juror was still in the room. The prospective juror then gave the prosecutor “a look” indicating she heard the joke and would be biased as a result. The trial court accepted this and removed the prospective juror from consideration. The trial court next read the names of the selected jurors and asked if the parties were “agreeable” to the jury. Defense counsel replied, “Yes, your honor.” He explained that he had “gone over the entire panel” with the Defendant, who “agrees and accepts this jury.” The trial court then asked if the parties objected to excusing “any of the individual[s]” who had not been selected for the jury. Neither the State nor the Defense raised an objection. The next morning, before swearing the jury, defense counsel asked that any objections he made in preliminary proceedings be considered continuing objections. The trial court agreed that defense counsel’s objections, to any rulings the judge already made, would be continuing objections. The jury was then sworn, and the case proceeded to trial.

On appeal, the court found that the trial judge’s substantive ruling on the State’s peremptory strike was in error and that a juror's nonverbal behavior must have been “observed by the trial court or otherwise ha[ve] record support” in order to constitute a race-neutral reason for a peremptory strike. The First DCA rejected the State’s claim that the Defendant failed to renew his objection prior to the jury being sworn. The Florida Supreme Court agreed, finding that the objection was not properly renewed and thus not preserved. Although Defense counsel first objected to the State’s peremptory challenge, he later unequivocally accepted the jury panel that excluded the subject juror. He did not mention the prior objection or otherwise indicate that he “still believed reversible error had occurred.” His “action in accepting the jury” in this manner “led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection.” Defense counsel similarly declined to address the issue at an additional opportunity provided by the trial court.

The Florida Supreme Court noted that, when asked by the trial court whether the parties were “agreeable” to the jury, defense counsel should have accepted the jury, subject to his earlier objection. “Doing so would have preserved the issue for review.” Furthermore, defense counsel’s request for a continuing objection lacked the necessary specificity, and thus, he failed to resurrect his objection to the State’s peremptory challenge.