Carratelli v. State (961 So. 2d 312, 2007)

CANTERO, J.

In this case, we explain the standard that courts should apply in deciding whether a trial counsel’s failure to preserve a challenge to a potential juror constitutes ineffective assistance of counsel. In doing so, we resolve a conflict concerning the application of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the case we review, the Fourth District Court of Appeal held that a defendant establishes prejudice under Strickland by proving that a biased juror served on the jury. See Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005) (en banc) (Carratelli II). The court certified conflict with Austing v. State, 804 So.2d 603 (Fla. 5th DCA 2002). That case held that the defendant must show only that a reasonable doubt existed about the juror’s impartiality, which is the same standard used on direct appeal. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; see also Carratelli v. State, 935 So.2d 499 (Fla.2006) (granting review). We agree with the Fourth District. Below we (I) summarize the facts and holdings of the cases in conflict; (II) discuss the different standards applicable on appeal and in the postconviction context; (III) analyze whether the trial or the appeal should be the focus of the prejudice analysis; and (IV) define and apply the test for demonstrating whether counsel’s failure to preserve a juror challenge resulted in prejudice to the defendant.

I. THE CASES IN CONFLICT

The petitioner, Robert Carratelli, was charged with six counts of vehicular homicide stemming from an automobile collision. Media coverage of the case rendered impaneling a jury difficult. During jury selection, defense counsel moved to strike several jurors for cause, alleging that they could not be impartial. When his chai-lenges were denied, Carratelli struck three of the potential jurors (Johnson, Lott, and Nesbitt) with peremptory challenges. When the trial court denied his cause challenge to juror Inman, however, Carratelli used his remaining peremptory strike on another person; thus, Inman remained on the jury. The jury subsequently convicted Carratelli on all counts.

On appeal, Carratelli alleged that the trial court erred in denying his challenges for cause. Carratelli v. State, 832 So.2d 850, 852 (Fla. 4th DCA 2003) (Carratelli I). Citing relevant excerpts from the voir dire transcript, the Fourth District agreed that the trial court abused its discretion in denying challenges to the three jurors whom the defendant struck with peremptory challenges:

Here, the record demonstrates reasonable doubts concerning Nesbitt’s, Johnson’s, and Lott’s abilities to be fair and impartial. Those doubts were not dispelled during subsequent questioning. Each of these jurors expressed significant reservations about their suitability to sit as jurors in this case. While a prospective juror’s own perception of his or her unfitness to sit as a fair and impartial juror in a particular case does not end the inquiry, such an assessment cannot easily be disregarded. Because Nesbitt’s, Johnson’s, and Lott’s responses created a reasonable doubt as to their ability to sit as fair and impartial jurors, the trial court abused its discretion in denying appellant’s challenges for cause to this trio.

Id. at 854-55. Despite finding error as to these three, however, the district court denied Carratelli a new trial because his defense counsel failed to preserve the claim. Id. at 856. The district court found that counsel’s statement to the trial court after the State accepted the jury “was neither a motion nor a request for additional peremptory challenges,” and that even if the statement was deemed to be such, counsel failed to obtain a ruling on it. Id. Accordingly, the court found the errors had not been preserved. Although Carratelli also appealed the denial of his cause challenge to juror Inman, the Fourth District did not address the claim, and thus affirmed the denial of the cause challenge as to Inman as well.

Carratelli then filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He alleged that trial counsel was ineffective for failing to preserve the denial of the cause challenges. Carratelli II, 915 So.2d at 1258. Carratelli alleged that he was prejudiced because his convictions would have been reversed on appeal and because one juror — Inman—“who was biased against [him] and who should have been excused for cause, actually served on the jury.” The circuit court denied the motion, and Carratelli appealed.

The Fourth District equated the failure to preserve a challenge for cause with the failure to raise one. Both, the court said, “result in an issue not properly presented to the trial court for a ruling.” Id. Focusing on the prejudice prong of Strickland, the district court said:

Where a lawyer’s incompetence involves the failure to exercise or preserve a cause challenge, the proper inquiry for deciding whether prejudice under Strickland has occurred is not to ask whether the trial court would have sustained the challenge had it been made at trial, or whether the appellate court would have reversed the conviction had the objection been preserved. The Strickland requirement of actual prejudice imposes a stringent test for granting postconviction relief based on the failure to preserve a cause objection to a juror.

The test is whether the failure to preserve a challenge to a juror by sufficiently bringing the objection to the trial judge’s attention “resulted in a biased juror serving on the jury.”

Id. at 1260 (quoting Jenkins v. State, 824 So.2d 977, 982 (Fla. 4th DCA 2002)). The court then applied this standard to Carra-telli’s case. Noting that three of the four challenged jurors did not serve on the jury, the district court examined the voir dire statements of the remaining juror and held that “juror Inman’s slight familiarity with the case did not rise to that level of actual bias necessary for postconviction relief.” Id. at 1261. The court certified conflict with Austing. Id. at 1263.

In Austing, it was the State that challenged defense counsel’s peremptory strike. The trial court ruled that defense counsel’s response to the State’s challenge was not race-neutral. Austing, 804 So.2d at 604. Defense counsel failed to preserve the error by renewing the objection before the jury was sworn. Id. n. 1. Aust-ing later filed a postconviction motion alleging that his counsel was ineffective. The circuit court denied it, holding that Austing had not established prejudice by showing that with a different juror the outcome of the trial would have been different. The Fifth District reversed. The court addressed the prejudice prong of Strickland, stating that “there can never be a showing as to what would have occurred with a different jury,” id., and concluded:

The trial court’s erroneous denial of Austing’s peremptory challenge was per se reversible error, and, if properly preserved, would have resulted in a reversal by this court on direct appeal. Therefore, it is apodictic that the result would have been different-ie., reversal on appeal-had trial counsel been effective; therefore, the two-pronged Strickland test has been met.

Id. at 605 (citations omitted).

Therefore, Carratelli and Austing conflict on which standard to apply for determining prejudice when a defendant claims that defense counsel was constitutionally ineffective for failing to preserve a juror challenge. The Fourth District held that the defendant must demonstrate that someone actually biased against him served as a juror. The Fifth District, on the other hand, looked to the outcome of the appeal — not the trial — to determine prejudice. In that district, a defendant establishes prejudice if the error that counsel failed to preserve would have resulted in reversal on appeal — that is, if the defendant could establish a reasonable doubt concerning the potential juror’s impartiality.

II. REVIEWING JUROR CHALLENGES ON APPEAL AND POSTCONVICTION

“[T]he test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance.” Sanders v. State, 847 So.2d 504, 506 (Fla. 1st DCA 2003) (en banc) (quoting Hill v. State, 788 So.2d 315, 318 (Fla. 1st DCA 2001)), approved, 946 So.2d 953 (Fla.2006). On direct appeal, to obtain a new trial a defendant alleging the erroneous denial of a cause challenge must show only that preserved error occurred. See Goodwin v. State, 751 So.2d 537, 544 (Fla.1999). To obtain postconviction relief, however, the standard is much more strict.

A. Demonstrating Reversible Error on Appeal

The decision whether to excuse a juror for cause is a mixed question of fact and law that falls within the trial court’s discretion. Busby v. State, 894 So.2d 88, 95 (Fla.2004), cert. denied, 545 U.S. 1150, 125 S.Ct. 2976, 162 L.Ed.2d 906 (2005); Singer v. State, 109 So.2d 7, 22 (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.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984) (citing Singer, 109 So.2d at 24). When a party seeks to strike a potential juror for cause, the trial court must allow the strike when “there is basis for any reasonable doubt” that the juror had “that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.” Singer, 109 So.2d at 23-24; see also Ault v. State, 866 So.2d 674, 683 (Fla.2003) (same). Courts have held that ambiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror. See Cottrell v. State, 930 So.2d 827, 829 (Fla. 4th DCA 2006) (quoting Huber v. State, 669 So.2d 1079, 1081 (Fla. 4th DCA 1996) (“This court has held that it is error not to grant a challenge for cause when there is a basis for any reasonable doubt as to the juror’s ability to render an impartial verdict, and that close cases should be resolved in favor of excusing the juror rather than leaving doubt.”)); Smith v. State, 907 So.2d 582, 585 (Fla. 5th DCA 2005) (same).

Under our cases, the preservation of a challenge to a potential juror requires more than one objection. When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn. See 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.” Id.

The rule is not a mere technicality designed to place onerous burdens on overstressed trial counsel. In Joiner v. State, 618 So.2d 174 (Fla.1993), we explained its purpose:

We agree with the district court that counsel’s action in accepting the jury led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection. It is reasonable to conclude that events occurring subsequent to his objection caused him to be satisfied with the jury about to be sworn. We therefore approve the district court to the extent that the court held that Joiner waived his Neil objection when he accepted the jury. Had Joiner renewed his objection or accepted the jury subject to his earlier Neil objection, we would rule otherwise. Such 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.

Id. at 176; see also Zack v. State, 911 So.2d at 1204 (reaffirming Joiner and holding that a Neil issue “is not preserved for appellate review if the party objecting to the challenge fails to renew the objection before the jury is sworn”). In other words, renewing an objection before the jury is sworn gives the trial 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. Without such a requirement, the defendant “could proceed to trial before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial.” Joiner; 618 So.2d at 176 n. 2; see also Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (noting that these requirements exist so that “[t]he defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial”).

If the issue has been preserved, courts review the trial court’s discretionary decision for manifest error. The appellate court examines the record, keeping in mind that the trial court “has a unique vantage point in the determination of juror bias” that is unavailable to us in the record. Smith v. State, 699 So.2d 629, 635-36 (Fla.1997). When a defendant preserves a cause challenge, he must demonstrate on appeal both that the trial court erred in determining the juror’s competency and that the denial of the challenge caused prejudice. See Conde v. State, 860 So.2d 930, 941 (Fla.2003). Where the record demonstrates a reasonable doubt about a juror’s ability to be impartial, the trial court abused its discretion in denying the cause challenge. See Busby, 894 So.2d at 95; see also Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004) (“While the decision to accept or dismiss a putative juror is considered an exercise in discretion, we view the seating of a juror as to whom there is a reasonable doubt concerning impartiality an abuse of discretion and thus ‘manifest error.’ ”).

Having demonstrated error, the defendant must then show that the error requires reversal. The “expenditure 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, 894 So.2d at 96-97. The juror who served need not have been “legally objectionable” — that is, excusable for cause. Id. A defendant need only show “the same type of harm [peremptory] challenges are intended to cure — the seating of a juror whom the defendant suspects, but cannot prove, is biased.” Id. at 100-01.

Even where the reviewing court concludes that a juror who actually served on the jury should have been stricken, however, the court will not reverse for a new trial if the error has not been preserved. See Singer, 109 So.2d at 19 (finding reasonable doubt as to one juror’s impartiality, but refusing relief on this claim because it was not preserved for review).

B. Demonstrating Prejudice in the Postconviction Context

As demonstrated above, the standard for obtaining a reversal upon the erroneous denial of a cause challenge is relatively lenient: a defendant need only show that an objectionable juror — whether or not actually biased — sat on the jury. Our consideration of postconviction claims, however, is more restrictive. As we recently reiterated:

We have emphasized that “once a conviction has been affirmed on direct appeal ‘a presumption of finality and legality attaches to the conviction and sentence.’ ” ... “[T]he test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance.”

Sanders, 946 So.2d at 959 (citations omitted) (quoting Goodwin v. State, 751 So.2d 537, 546 (Fla.1999), and Sanders, 847 So.2d at 506). A defendant’s claim that his counsel offered ineffective assistance at trial, for whatever reason, must be analyzed under the standard the Supreme Court enunciated in Strickland. The purpose of the right to the effective assistance of counsel is to “ensure a fair trial,” Strickland, 466 U.S. at 686, 104 S.Ct. 2052, defined as “one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Id. at 685, 104 S.Ct. 2052. The Supreme Court established the following standard for determining when counsel has provided ineffective assistance warranting postconviction relief:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052.

Specifically, the Court stressed that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Therefore, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Witt v. State, 387 So.2d 922, 925 (Fla.1980) (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)).

III. WHICH IS THE RELEVANT PROCEEDING: THE TRIAL OR THE APPEAL?

Both the district court below and the court in Austing agree that the Strickland prejudice standard applies. The courts disagree, however, on which forum should be the focus of the analysis. The standard requires the postconviction court to consider whether there is a reasonable probability that the result of the proceeding would have been different. In these circumstances, the question becomes, which is the “proceeding” whose potential result should be scrutinized — the trial (as Carratelli II holds) or the appeal