Case Notes

Case Note-Inattentiveness of a juror is enough to satisfy a racially neutral reason for a peremptory strike.

Travelers Home and Marine Ins. Co., v. Gallo, 2018 WL 2448799 (Fla. 5th DCA, June 1, 2018)

By: Kimberly NuñezEsq.


The Fifth District Court of Appeal’s ruling in Travelers Home and Marine Ins. Co., v. Gallo, 2018 WL 2448799 (Fla. 5th DCA, June 1, 2018) helps explain how a juror’s nonverbal behavior, such as inattentiveness, can serve as a proper basis to sustain a peremptory strike even after it has been challenged on the basis of race discrimination.

Travelers Home and Marine Insurance Company (“Travelers”) appealed a final judgment entered against it and in favor of its insured, Michael J. Gallo (“Gallo”) after a jury returned a verdict in favor of Gallo’s uninsured/underinsured motorist claim. The issue in Travelers centered around whether the trial court erred in disallowing one of Travelers’ peremptory challenges. The Fifth District Court of Appeal found that it did and reversed and remanded for a new trial. The Court held that a juror’s lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a peremptory strike.

Following voir dire of the venire, Travelers used one of its peremptory challenges to strike an African-American female as a juror. Gallo’s counsel objected to the peremptory challenge on the grounds that it was being exercised in a racially discriminatory manner. Travelers’ counsel explained that he was striking her because she was inattentive and did not appear engaged in the jury selection process, thus raising concern that she would not be focused, pay attention, and consider the evidence at trial. The trial court found the strike to be legally insufficient and disallowed it. The African-American female was sworn in as a juror.

The Fifth District Court of Appeal reiterated the 3-step process established by the Florida Supreme Court in Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), that the trial court must follow in order to determine whether the strike is being exercised in a purposely discriminatory manner. The 3-step process is as follows:

  • An opponent of the strike must: (a) make a timely objection on the basis that the peremptory challenge is being used on racial grounds/exercised in a purposely discriminatory manner; (b) show that the venireperson is a member of a distinct racial group; and (c) request that the court ask the striking party its reason for the strike;
  • A proponent of the strike must then proffer a racially neutral reason for the peremptory strike;
  • The court must then determine whether the proponent’s explanation/reason is genuine.


However, when the proffered reason is the venireperson’s nonverbal behavior and an opponent disputes the behavior, then an additional analysis must be made. In this instance, the proponent can satisfy its burden “if the behavior is observed by the trial court or otherwise has record support.” Citing Dorsey v. State, 868 So. 2d 1192, 1199 (Fla. 2003). If the behavior is neither observed by the trial court nor otherwise supported by the record, then the nonverbal behavior is not a proper basis under Step 2 of Melbourne to sustain a peremptory challenge as genuinely race neutral.

In Travelers, the trial court specifically agreed with Travelers’ counsel’s observation that this juror was “not particularly engaged” and that Travelers’ belief was genuine; however, the trial court found this to be irrelevant to evaluating whether it was a race-neutral for the strike. The Fifth District Court of Appeal disagreed and found that this was enough for Travelers to satisfy Step 2 of Melbourne, and Travelers was entitled to the presumption that its proffered reason for the strike was genuine. In doing so, the Fifth District Court of Appeal emphasized that a preemptory challenge is presumed to be in a nondiscriminatory manner and it is the opponent of the strike to prove purposeful racial discrimination.

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