Florida Case Law

MOORE v. STATE, 3D05-875 (Fla.App. 3 Dist. 10-4-2006) JIMMY
LEWIS MOORE, Appellant, v. THE STATE OF FLORIDA, Appellee.
Case No. 3D05-875. District Court of Appeal of Florida,
Third District. Opinion filed October 4, 2006.

An Appeal from the Circuit Court for Miami-Dade County,
David C. Miller, Judge, Lower Tribunal No. 04-327.

Bennett H. Brummer, Public Defender, and Robert Kalter,
Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Robin F.
Hazel, Assistant Attorney General, for appellee.



The defendant appeals his convictions for burglary, petit
theft, and resisting arrest without violence. We affirm.

The defendant contends on appeal that he was deprived of a
fair trial because the State asked the venire hypothetical
questions he deems irrelevant, and because the trial court
struck several jurors for cause based on their responses to
the hypothetical questions. He seeks reversal of his
convictions and retrial. The State asserts that the
convictions should be affirmed because the hypothetical
questions were proper and the trial court only struck
potential jurors who were unwilling to follow the law.

The defendant was arrested when he allegedly reached under
the partially opened door of a scrap metal business a few
minutes after closing time and grabbed four metal
radiators. The owner chased the defendant until the
defendant dropped the items. An off-duty officer happened
to witness the chase and arrested the defendant. At the
police station, the defendant waived his Miranda[fn1]
rights and admitted he was in possession of the radiators.

At trial, the prosecutor explained during voir dire the
difference between testimonial and physical evidence, and
asked the venire whether it would require the State to
produce a specific type of evidence. To illustrate the
point, the prosecutor described a hypothetical situation
involving a purse snatching. The jurors agreed that a case
involving the victim’s testimony along with physical DNA
and fingerprint evidence would be a solid case. The
prosecutor then asked whether the venire would be satisfied
solely with testimony if the witness was credible and the
testimony proved the case beyond a reasonable doubt.
Several potential jurors explained that they simply could
not convict without physical evidence. The trial court then
addressed the venire to explain that no specific type of
evidence was necessary. The trial court struck for cause
those potential jurors who stated they could not convict
without physical evidence.

The purpose of voir dire is to “obtain a fair and
impartial jury, whose minds are free of all interest, bias,
or prejudice.” Pope v. State, 94 So. 865, 869 (Fla. 1922).
A trial court may exercise its discretion to permit
hypothetical questions if they make a “correct reference to
the law of the case that aid in determining whether
challenges for cause, or peremptory are proper. . . .”
Pope, 94 So. at 869; Pait v. State, 112 So. 2d 380 (Fla.
1959) (accord). Hypothetical questions, “designed to
determine whether the jurors could correctly apply the law,
are permissible.” Williams v. State, 931 So. 2d 999 (Fla.
3d DCA 2006). A trial court’s decision to grant or deny a
cause challenge is reviewed for an abuse of discretion.
Still v. State, 917 So. 2d 250 (Fla. 3d DCA 2005).

We affirm because the alleged voir dire error is both
unpreserved and without merit. As a preliminary matter, the
argument on appeal is unpreserved for appellate review
because defense counsel failed to make a contemporaneous
objection below. Steinhorst v. State, 412 So. 2d 332 (Fla.
1982). On the merits, the trial court did not abuse its
discretion by permitting hypothetical questions or by
striking the jurors at issue for cause. The hypothetical
questions did not pretry the case, but tested the venire’s
ability to accept both testimonial and physical evidence.
The hypothetical scenario did not relate to the facts of
the case, and did not ask the jurors to commit to a
verdict. Instead, it merely explored whether certain venire
members would require the State to produce a certain kind
of evidence. Indeed, the questioning revealed that certain
potential jurors held such a bias and refused to accept
testimony alone even if it was credible and satisfied the
burden of proof.

Therefore, the trial court did not err by permitting or
participating in this line of questioning, and striking the
jurors in whom bias was shown. Williams v. State, 931 So.
2d 999 (Fla. 3d DCA 2006) (holding that the trial court did
not abuse its discretion by permitting the state to pose
various hypothetical scenarios to inquire whether the
jurors would find reasonable doubt based on sympathy rather
than the hypothetical fact pattern).



[fn1] Miranda v. Arizona, 384 U.S. 436 (1966).