A prosecutor’s reason for striking a Black juror was pretext when it applied equally to a non-Black juror who stayed on the jury, the Third District Court of Appeal held on October 28, 2026. In Mesamours v. State, No. 3D24-1485, the court reversed Marvin Mesamours’s conviction for resisting an officer without violence and remanded for a new trial. Judge Miller wrote the majority opinion. Chief Judge Scales concurred in the result, and Associate Judge Koenig dissented. The opinion replaces one filed May 27, 2026: the panel granted rehearing, withdrew that opinion and substituted this one. It is not final until any timely rehearing motion is decided.
The facts
Mesamours was charged with fleeing and eluding a law enforcement officer and resisting without violence after a police chase. At trial, defense counsel asked prospective jurors whether police officers are any more or less likely to tell the truth than anyone else. One juror, a Black woman, said officers “can lie just the same. Their profession doesn’t make a difference.” The defense also told the venire that the officers in the case were the subject of an open misconduct investigation relating to a shooting.
The State used its first peremptory strike on that juror. The defense objected under Melbourne v. State, 679 So. 2d 759 (Fla. 1996), and the prosecutor had to give a race-neutral reason.
Two reasons, and a pivot
The prosecutor first said the juror had indicated that the officers’ credibility would be in question. When the defense disputed that, the trial judge offered a readback of the voir dire. The prosecutor declined and offered a different reason: the juror had previously served on a jury that reached a decision in a criminal case. The defense answered that this applied equally to a seated juror who was not a Black woman. The trial judge found the second reason race-neutral and genuine and said of the first, “I just don’t know. I don’t have a note.” The strike was allowed.
Why the Third District reversed
The court confined its review to the reason the trial court actually accepted, prior jury service. That reason applied equally to a non-Black male juror who was seated. The State also held five unused peremptory challenges when it struck her. The court found two more of the factors from State v. Slappy, 522 So. 2d 18 (Fla. 1988): the reason had nothing to do with the facts of the case, and the juror was asked only one question, about the color of police lights, on a subject unrelated to her prior jury service. The State did not try to distinguish the two jurors. Under Overstreet v. State, 712 So. 2d 1174 (Fla. 3d DCA 1998), the court said, “this scenario warrants a finding of pretext.”
The majority also noted that other Florida courts treat disparate treatment of similarly situated jurors as dispositive, while the Third District treats it as “a significant factor.” It said the trial court “could have” credited other considerations, but “could have” does not equate with “did.” And it refused to affirm on the first reason, which the trial court never ruled on and the State did not defend: otherwise, it said, “the genuineness inquiry becomes a mere formality.”
The concurrence and the dissent
Chief Judge Scales agreed that Overstreet controls on the second reason. He wrote that the State’s first reason, the juror’s view of police credibility, “likely satisfied” Melbourne, but that deciding whether it was genuine is the trial court’s job in the first instance, and he was uncomfortable having the appellate court do it. Associate Judge Koenig dissented. He would affirm, reasoning that the State gave two race-neutral reasons, one of them unique to this juror, and that the record does not show the trial court clearly erred.
Two notes on what the opinion does not say. It addresses only the jury-selection issue, because that issue was dispositive, and it does not decide Mesamours’s other claims. And the opinion reports the jury’s guilty verdict only on the resisting charge.
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