DAVID SOTOLONGO

v.

STATE OF FLORIDA

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REEMBERTO DIAZ

AND',IF F[LBD,DISPOSED OF. -. "L Q . . , . Q % T⁰ I-IEARINGON: September 14, 2011. r IN CIRCUITCOURTOFT!-IE' JUDICIAL cmcurr, INANDFORMIAMI-DADE COUNTY,

FLORIDA

APPEIJI%A'I‘EDIVISION cass 1o-mac CASE BELOW: B10-22685 ff 0-. ’a mva....33:: ._’_!! fivmmz u.1 -.-. [*2] . ~ u? _5‘FA' id91 _.;_ _, 7! ~ I '-> :- ‘Q -'0 -'-v - : .,_-2 .19 ~ r~1 Opinionfiled: ‘n1§’ - ,2o11.- ~ On Appeal firom fhb County Courtfor Mlmili-Dado County, Florida, Mary Io Franéia, Judge CarlosJ. Martinez andAmy Wéhcr, Offieeofthe Publicnew“, forAppellant. £T3"fl_.; Q O Katherine FernandezRnndlo and I-Ioloiza Correa, Oflice ofthe State Attumuy, forAppellm. Bcfore LEESFIELD, BUTCHKO, and DIAZ, JJ.

- ,- ’ ’ ‘ wrzgr “°°“‘;¥T='iM'S*I"=~‘*=11 I _...-...-.;.-.-__.J_.--.__.--.- (‘:1 \ [*2] DIAZ, J. . _ '1‘he Appellant, Mr. David Sotolongo challenges his conviction in Miami-Dede County Court for one count of loitering‘ and prowling, a second degree misdemeanor, on the basis of an improperly denied cause challenge ofapotentialjuror. - . . During voir dire, defense counsel asked the jury venire, including the subject juror, Juror Hernandez, several questions about police ofiicers and their testimony. Believing‘ that Mr. Hernandez’s initial responses to these questions would prevent him fiom being impartial, the prosecutor moved to strike him for cause. The trial court engaged Mr. Hernandez in further, one-one one questioning. During questioning, Juror Hernandez explained that he is a civil attorney with an insurance defense practice. ln that capacity, he has prepared various police oficers to testify for his clients in civil cases. When the parties inquired as to whether this experience would affect his ability tojudge the facts ofthe case, he responded in the affirmative. He explained: " - I mean, it’s just - you know, officers do things in ‘ai certain way, and I know about their policies and their procedures, and the reasons they do things, and the reasons p I that they don't do things. ' ' V ' I ' " " ‘ F Will that affect my judgment? I'm sure it will. I’m sure I'll use my experience to bring an opinion, you know, to my fellowjurors. l " ' - ' After hearing this response, the court explained to Mr. Hernandez how hisinability to disregard his extrinsic knowledge regarding police practices would likely disqualify him trom serving. Mr. I-Iernsndez then responded, as follows: - V ‘ ‘ _ i “This is why I never get picked for thejury. I do this ._.. Ido this alter year, and I never get picked." “Pm not going to bring extraneous information and say ‘Oh, that's not the way it's supposed to be done.’ -_I'll try not to bring anything else in.” The Court questioned Juror Hernandez fiuther, regarding his potential partinlity, at which time Juror Hernandez indicated his ability and intention to be The State, in response to the court's observation that the State initially asked for a cause. challenge as well, explained that Mr. Hernandez was rehabilitated when “[Mr. Hernandez] specifically stated he wouldn’t bring any ofthat . '1- -1. [*3] I E I: 44‘A-.1:-.-.|. i f‘ -_»-nwu-'.-.‘Ja- I l I i I i [extraneous information] in, and then explained that his experiences with police officers are both bad andgood.” ' _ ' ' l ' ‘ Defense counsel challenged Mr. Hemandez for cause, arguing that his responses indicated that \ . he could not be a fair and impartial juror, and decide the case based exclusively on the evidence presented. Instead, he would bring his outside knowledge ofpolice practices to bear on his assessment ofthe credibility ofthe witnesses and weight oftlreevidence. ‘ i ‘ Although the court acknowledged that a loitering and ‘prowling case would rest exclusively on ofiicer testimony and is a “technical uhtitgethat-has to do with their policies andprocedures,” the court nevertheless denied the challenge for cause. The court, noting that Mr. Hernandez did not know any of theparticular officers involved in the case, denied Defendant’s cause challenge, but welcomed Defense counsel to use a peremptory challenge for Mr. Hernandez. Sotolongo’s attorney used all three of his. , peremptory challenges on_ Mr. Peres, Mr. Lima, and» one to" strike Mr. I-Iernandez from the panel. Defense counsel requested an additional peremptory because the cause challenge on Mr. Hernandez had been denied. Counsel indicated that, if granted, Mn? Sotolongo would use the additional peremptory challenge to strike Juror Fisher. The court denied the additional peremptory challenge, noting that Defense counsel had no legal basis for their claim that Mr. Hernandez should be considered an “expertjuror.” Both Juror Fisher and Juror Hemandez served on the panel. Prior to accepting the panel, defense counsel renewed all ofherprevious motions and objections. At trial, the State called only two witnesses, both ‘of“vi/hem: were police officers. The central dispute in the case centered onthe credibility of these officers. Counsel for Mr. Sotolongo repeatedly questioned the practices of these ofiicers, including one officcrs’ claim that he sat and observed Mr. Sotolongo for a period oftime instead of intervening to prevent his supposed criminal conduct, and both officers’ assertions that Mr. Sotolongo engaged in irrcr-iniinitting behavior and made incriminating statements that were never recorded in the police reports. After‘nearly three hours ofdeliberation, the . i [*4] i _.__.__._-,_-1_.i,-.-_q__.._. 44_....,....-_. I jury returned a verdict ofguilty. The court sentenced Mr. Sotolongo to 60 days injail, with 60 days of credit time served. - ' . t - - .- Where an appellant seeks reversal ofhis conviction based on an alleged error by the trial court denying a cause challenge, the appellant has the burden ofsatisfying a two-prong test: (a) that the trial court committed manifest error in denying the cause challenge, and (b) that the denial ofthe challenge causes prejudice. Carratelli v. State, 961 So. 2d 312, 319 (Fla. 2007) (citing Condo v.'S!are, 860 So. 2d 930, 941 (Fla; 2003). The test to determine aju1'or’s competencyis whether thatjuror can set aside any bias or prejudice, and render a verdict solely-on the evidence presented and the instructions on the law given by the court. Carratelli, 961 So. 2d at 318; Martinez v. State, 795 So. 2d 279 (Fla. 3d DCA 2001). - “[l]f there is basis for any reasonable doubt as to any jurot’s'possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the ' .- ,1, p. _ law announced at the trial, he should be excused on motion ‘of a party, or by the court on its own motion." Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1958); accord Carrratelll, 961 So. 2d at 318. Close cases involving challenges to the "impartiality ofpotential jurors should be resolved in favor of excusing the potentialjuror rather than leaving doubt as to th‘e‘member’s impartiality. Carraielli, 961 So; Zd at 318; Martinez, 795 So. 2d at 282. “The trial court has broad discretion in determining whether to grant a challenge for cause, and the decision will not be overturned on appeal absent manifest error.” Kopsko v. Stare, 959 So. 2d 168, 170 (Fla: 2007); Overton v. State, 801 So. 2d 877, s90(1=n. 2001). ' - ' V ' Here, Juror Hernandez expressed that he had opinions about proper police practices and procedures that he had developed through his legal practice, preparing police oflicers to testify at trial. He candidly admitted that he would bring that knowledge to the deliberations, and discuss those beliefs with other jurors. This‘ Court finds that Juror Hernandez’s'initial comments were not satisfactorily rehabilitated during the trial court's ‘questioning. Some ofhls responses during voir dire clearly . [*5] it , I I t I “"‘~'*<'_"“—;r't'_—.*--.- I1 ': ! t i L 5' !. II : I ! indicated that he would not “render a- verdict solely on the evidence presented" in court. Tabares v. State, 24 So. 3d 1205, 1207 (Fla. 3d DCA 2009). ‘ - ' This _Com-t finds that it was manifest error to deny the defense challeitge ofMr. Hernandez for cause. Further, we find that this denial ofthe challenge caused prejudice. Thus, reversal is required. As such, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion. i _ ' ' ~ LEESFIELD and BUTCI-IKO, JJ,mm. i |

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