Dwayne Curtis DORSEY, Petitioner, v. STATE of Florida, Respondent, 868 So. 2d 1192

PARIENTE, J. The issue we address in this case is a narrow one: whether a party’s observation of a juror’s nonverbal behavior may constitute a genuine, race-neutral reason for a peremptory challenge when the purported behavior is challenged by the opposing party and was neither observed by the trial court nor otherwise supported by the record. In the case before us, Dorsey v. State, 806 So.2d 559 (Fla. 3d DCA 2002), the Third District answered this question in the affirmative, concluding that our holding in Melbourne v.

State, 679 So.2d 759 (Fla.1996), that the focus in ruling on a challenged strike is the genuineness of the explanation, implicitly overruled Wright v. State, 586 So.2d 1024 (Fla.1991), in which this Court disapproved of peremptory challenges based on a juror’s bare looks and gestures that were not observed by the trial judge and confirmed by the judge on the record.

We must determine whether this Court’s holding in Wright remains valid in light of the Court’s subsequent decision in Melbourne Because we conclude that Melbourne did not overrule the core holding in Wright that a reason for a challenge based on nonverbal communication must have record support, we quash the Third District’s decision to the contrary. I. FACTS During jury selection for Dorsey’s trial on a charge of resisting an officer with violence, the defense objected to a peremptory challenge exercised by the State: [PROSECUTOR]: The State would exercise a peremptory challenge on Ms. George.

She appeared disinterested throughout. I was looking at her. She was sort of staring at the wall. [DEFENSE COUNSEL]: Your Hon- or, we would ask for a race neutral reason one for several reasons — Ms. George has four golds on the bottom — I know that because she smiled the whole time I was up there talking — I also noticed when you were doing voir dire, I also saw that it wasn’t that she was disinterested, she listened. She was very attentive, smiled in a lighthearted manner. She is also African-American. Dwayne Dorsey is African-American. THE COURT: State is that the only reason? [PROSECUTOR]: That’s the reason.

To me, she appeared disinterested. She did not — -wasn’t listening to anything. [DEFENSE COUNSEL]: Also, say this — when [defense counsel] asked who was happy to be here on jury duty, [Ms. George] was the only person [to] affirmatively respond she was happy. We are objecting to the State peremptory. It doesn’t [appear] to be any reason. THE COURT: Well, I just must make a finding. It is not contextual [sic]. Her first challenge was against a Hispanic female. Now, we are talking a African-American female.

It is not as if she is trying to single out any particular group. [DEFENSE COUNSEL]: Well, Your Honor especially the test is the genuineness of the reason provided by the State. THE COURT: Absolutely. And a pattern is not controlling. [DEFENSE COUNSEL]: Right. And here, because the reason it’s been produced by the State and what [the prosecutor] says, her only reason, is simply not supported in the record.

Her statement that the juror is disinterested is affirmatively rebutted by the fact that this is the only juror who actually said she wanted — I’m sorry what she said, she was happy when she got her jury document notice. I mean— THE COURT: Ms. [prosecutor], I didn’t notice it but are you telling me as Officer of the Court that that [lack of interest] was your observation of this juror and that is why you wish to have her excused? [PROSECUTOR]: Exactly. THE COURT: I’m going to take [the prosecutor] at her word. I’m going to allow the challenge. Ms.

George did not serve on the jury that found Dorsey guilty as charged. Dorsey asserted in his appeal of the conviction that the trial court erred by permitting the State to exercise the peremptory challenge against Ms. George. The Third District affirmed, concluding that “[t]he trial judge’s assessment of the veracity of the State’s reason was not clearly erroneous.” Dorsey, 806 So.2d at 563.

The district court rejected Dorsey’s argument that reversal was mandated by this Court’s holding in Wright that “a peremptory challenge based on body language would be unacceptable unless observed by the trial judge and confirmed by the judge on the record.” See Dorsey, 806 So.2d at 562. The Third District determined that “the analysis applicable to such a question has changed” with this Court’s subsequent decision in Melbourne v. State, 679 So.2d 759 (Fla.1996). Dorsey, 806 So.2d at 562.

In Melbourne, this Court articulated a test for assessing a party’s explanation for a peremptory challenge, focusing on the genuineness, rather than the reasonableness, of the explanation. See 679 So.2d at 764. II. ANALYSIS The issue in this case arises when a reason offered for a peremptory challenge is based on a juror’s nonverbal behavior, such as lack of interest, inattentiveness, or lack of eye contact. In Wright, we characterized this type of nonverbal behavior as “bare looks and gestures.” 586 So.2d at 1029.

When the reason offered for a peremptory challenge is based on a juror’s verbal response to questioning during voir dire, the problem we confront in this case does not occur. The juror’s response is not only witnessed by the court but, if there is any doubt about the validity or genuineness of the challenge or its pretex-tual nature, is also captured by the court reporter and available for the trial court to confirm and the appellate court to review. When the appellate court can discern that the actual responses differ from what was represented to and accepted by the trial court, the court’s ruling is reversed.

See, e.g., McCarter v. State, 791 So.2d 557, 558 (Fla. 2d DCA 2001) (holding that trial court erred in finding reason to be valid where it was refuted by transcript of voir dire); Michelin North America, Inc. v. Lovett, 731 So.2d 736, 742 (Fla. 4th DCA 1999) (holding that the denial of a peremptory challenge constituted clear error where the record refuted the implied finding that the reason given for the strike was not genuine); Overstreet v.

State, 712 So.2d 1174, 1177 (Fla. 3d DCA 1998) (relying on review of transcript in concluding that the trial court erred in sustaining a peremptory challenge because of a “faulty recollection of the responses given during voir dire”). Like verbal responses to questioning, a juror’s lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a strike.

However, the question becomes how to determine the genuineness of the reason based on nonverbal communication when opposing counsel challenges the factual basis for the explanation, the trial court does not observe the behavior, and the record does not otherwise support the reason advanced. To answer this question, we reexamine Wright in light of our subsequent decision in Melbourne. To place both Wright and Melbourne into perspective, we briefly review the precedent on which both decisions rest. In State v.

Neil, 457 So.2d 481, 486 (Fla.1984), this Court held that the exercise of a peremptory challenge solely on the basis of race violates the right of both the defendant and the State to trial by an impartial jury under

article I,

section 16 of the Florida Constitution. This Court delineated a test for trial courts to use in determining whether the exercise of a peremptory challenge is a pretext for racial discrimination. Subsequently, the United States Supreme Court, in its landmark decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that “[ejxclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.” Id. at 85, 106 S.Ct. 1712.

Significantly, the Supreme Court stated that the prosecutor could not justify the peremptory challenge merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections. If these general assertions were accepted as rebutting the defendant’s prima facie case, the Equal Protection Clause would be but a vain and illusory requirement. Id. at 98, 106 S.Ct. 1712 (internal quotation marks, brackets, and citation omitted). Relying on Batson, this Court modified the test for evaluating peremptory challenges under Neil in State v. Slappy, 522 So.2d 18 (Fla.1988).

This Court stated that the test required a “clear and reasonably specific” race-neutral explanation of “legitimate reasons.” 522 So.2d at 22 (quoting Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712). The trial court could not “accept the reasons proffered at face value.” Instead, the trial court should “evaluate those reasons as he or she would weigh any disputed fact.” Id. Under Slappy, the trial court was required to consider two factors in evaluating a proffered reason. The first inquiry was whether the reason was “neutral and reasonable.” Id.

However, “reasonableness is not enough, since the state also must demonstrate a second factor — record support and the absence of pretext.” Id. at 23. The trial court must evaluate both the credibility of the person and the credibility of the asserted reasons. Id. at 22. In Floyd v. State, 569 So.2d 1225 (Fla.1990), issued two years after Slappy, this Court emphasized the necessity of record support for a party’s explanation of its reasons for exercising a peremptory challenge during an inquiry under Neil and Slappy.

In Floyd, we determined that a defense challenge to the trial court’s decision upholding a peremptory challenge was unpreserved because defense counsel did not challenge the accuracy of the explanation for the strike, and explained: It is the state’s obligation to advance a facially race-neutral reason that is supported in the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced.

However, when the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason. Here, the error was easily correctable. Had defense counsel disputed the state’s statement, the court ivould have been compelled to ascertain from the record if the state’s assertion was true.

Had the court determined that there was no factual basis for the challenge, the state’s explanation no longer could have been considered a race-neutral explanation, and [the juror] could not have been peremptorily excused. Id. at 1229-30 (emphasis supplied). Floyd’s statement that a trial court must establish record support for an explanation challenged by the opponent of the strike is consistent with our holding in Wright that a peremptory challenge based on bare looks and gestures cannot be sustained unless the looks and gestures have record support.

We again highlighted the importance of record support for a reason proffered for a peremptory challenge in Wright, which was issued less than a year after Floyd. The defendant in Wright alleged that the prosecutor unconstitutionally exercised a peremptory challenge for racial reasons. See 586 So.2d at 1027. In attempting to justify the peremptory challenge, the prosecutor first explained that the challenged venireperson would be likely to identify himself with the defendant because they were both black males of similar ages. See id. at 1028.

The prosecutor then offered the alternative ground that the challenged venireperson did not maintain eye contact with the prosecutor and that the prosecutor was uncomfortable with that. See id. This Court, relying on Sloppy, reversed the appellant’s convictions and stated that these facts established a “clear violation of Neil and Batson.” Id.

Regarding the second reason offered by the prosecutor, this Court concluded that the reason was “merely pretextual” and then held, in language significant to this case, that “[peremptory challenges based on bare looks and gestures are not acceptable reasons unless observed by the trial judge and confirmed by the judge on the record.” Id. at 1029. The United States Supreme Court revisited its Batson decision and focused on the reason given by the proponent of a peremptory challenge in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

The Court stated that the explanation must be nondiscriminatory on its face and have record support: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.

The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” [Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)].

In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are “not fairly supported by the record.” 28 U.S.C. § 2254(d)(8). Here the Court of Appeals did not conclude or even attempt to conclude that the state court’s finding of no racial motive ivas not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive.

It gave no proper basis for overturning the state court’s finding of no racial motive, a finding which turned primarily on an assessment of credibility. Id. at 767-69, 115 S.Ct. 1769 (citations omitted) (emphasis supplied). Purkett also reaffirmed the principle of Batson that a prosecutor could not satisfy his burden by “merely denying that he had a discriminatory motive or by merely affirming his good faith.” Id. at 769, 115 S.Ct. 1769 (emphasis supplied).

This language reflects the United States Supreme Court’s continued adherence to Batson’s fundamental precept that affirmations of good-faith motives will not suffice. Our decision in Melbourne, issued one year after Purkett, focused solely on the procedural refinements adopted in Purkett and the practical difficulty encountered by some Florida courts in applying Neil and its progeny. Specifically, this Court adopted guidelines for trial courts to follow in resolving challenges to peremptory challenges on racial grounds. See 679 So.2d at 764.

The step-by-step guidelines established in Melbourne provide: A party objecting to the other side’s use of a peremptory challenge on racial grounds must:

a) make a timely objection on that basis,

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. [2] If these initial requirements are met ... the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. ... [3] If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. ... 679 So.2d at 764 (footnotes omitted).

We emphasized that in applying these guidelines, the trial court’s focus “is not on the reasonableness of the explanation” for the exercise of a peremptory challenge “but rather its genuineness.” Id. In Melbourne, we receded from Slappy’s requirement of a “reasonable” rather than a “genuine” race-neutral explanation for the strike, while acknowledging that “[rjeasonableness is simply one factor that a court may consider in assessing genuineness.” Id. at 764-65 & n. 9.

However, we did not address the impact of our holding in that case on the rule established in Wright that bare looks and gestures cannot be accepted as race-neutral reasons for peremptory challenges unless observed by the trial court. The State contends that because the sole focus under Melbourne is now on the genuineness of the explanation, rather than its reasonableness, it is no longer necessary for bare looks and gestures to be observed by the trial court, as required by Wright, or otherwise supported by the record. We disagree.

We did not expressly recede from Wright in Melbourne, and this Court does not intentionally overrule itself sub silentio. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002). Moreover, this Court adheres to the doctrine of stare decisis. See id. Although we recognize that the doctrine of stare decisis is not absolute, it yields only upon a significant change in circumstances after the adoption of the legal rule, or when there has been an error in legal analysis. See id.

Because the important policy and constitutional underpinnings of Wright continue to compel adherence to that decision, we determine that the essential holding in Wright survives, and is consistent with, our decision in Melbourne. The principle that emerges from Wright and Melbourne, in tandem, is that the proponent of a strike based on nonverbal behavior may satisfy its burden of production of a race-neutral reason during the second step of the process described in Melbourne only if the behavior is observed by the trial court or otherwise has record support.

Once this burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine. Wright’s requirement of record support intersects with Melbourne’s focus on the genuineness of a proffered explanation during the second of the three steps set out in Melbourne. If, during this second step, the parties disagree as to whether nonverbal behavior, as discussed in Wright, 586 So.2d at 1029, constitutes a “fact ... existing in the record,” Floyd, 569 So.2d at 1229, the proponent must substantiate its observation. As then-judge Quince observed in Daniel v.

State, 697 So.2d 959, 961 (Fla. 2d DCA 1997), the “case law is clear that a ‘feeling’ about a juror is not a valid, neutral reason to exercise a strike, absent support in the record.” (Emphasis supplied.) Without a basis apart from one party’s perception to substantiate the bare look and gesture— whether it is the lack of eye contact in Wright or the purported lack of interest of the juror here — there is no support for the explanation, and the proponent of the strike has not satisfied its burden under Melbourne.

If we were to conclude that the second step of Melbourne is satisfied by the assertion of a race-neutral reason that is disputed by the opposing party and is neither observed by the trial court nor otherwise supported by the record, the trial court would be handicapped in fulfilling the third step of Melbourne, which is the evaluation of the proffered reason.

When a verbal response is relied upon to justify a peremptory challenge, an opposing party can easily point out that other venire members gave the same response as the stricken juror, and the appellate court can look to the record to review the trial court’s resolution of the dispute. This assessment is hardly possible when a subjective impression based on nonverbal behavior is offered as a reason for the strike and the behavior is neither observed by the trial court nor otherwise supported by the record.

Further, if the proponent of a strike were permitted to meet its burden of production based solely on an attorney’s subjective, uncorroborated, and disputed impression of a juror’s demeanor, the appellate court would have no basis to determine if the trial court’s decision to accept the explanation was clearly erroneous. The trial court’s choice to credit one attorney’s observations, with no rationale for distinguishing one good-faith representation from the other, would render that decision virtually unreviewable. In contrast, our decision today allows for meaningful appellate review.

We held in Melbourne that the trial court’s decision in ruling on the genuineness of the race-neutral basis for a peremptory challenge should be affirmed unless clearly erroneous. See 679 So.2d at 764. We reaffirm that principle. We have continuously deferred to “the superior vantage point of the trial judge, who is present, can consider the demeanor of those involved, and can get a feel for what is going on in the jury selection process.” Files v. State, 613 So.2d 1301, 1305 (Fla.1992).

However, as recently stated by the United States Supreme Court in the highly deferential context of federal habeas review of a state court’s determination on a claim of discrimination in the exercise of peremptory challenges, “deference does not imply abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003). An example of the balance between deference and meaningful appellate review is Francis v.

State, 808 So.2d 110 (Fla.2001), cert. denied, 537 U.S. 1090, 123 S.Ct. 696, 154 L.Ed.2d 635 (2002), in which the prosecutor sought to strike a juror who had laughed at the accusation that two people were killed. Although the fact of the juror’s laughing was not explicit in the record, we were able to review the record to find support for the conclusion: While the transcript does not explicitly indicate that Ms. Bennett laughed, it does indicate that she thought “nothing at all” about the accusation that an individual had killed two people.

Given her light-hearted response to such a serious question, it is understandable that the trial court would be particularly attuned to the surrounding circumstances. Id. at 124. The Court also pointed to the more thoughtful responses of other jurors as support for the prosecution’s reason.

In contrast to Francis, there is virtually nothing upon which to base meaningful appellate review when the trial court does not observe the nonverbal behavior, the record does not otherwise support the observation, and the trial court does nothing more than accept as a race-neutral reason an attorney’s assertion of a juror’s lack of interest because the attorney is an officer of the court.

This is why our statement in Floyd, which we have recently reaffirmed, remains the basis for the trial court’s decision and appellate review: “It is the state’s obligation to advance a facially race-neutral reason that is supported by the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced.” Rimmer v. State, 825 So.2d 304, 320 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002) (quoting Floyd, 569 So.2d at 1229) (emphasis supplied).

In addition, sustaining a peremptory challenge based solely on the good faith of the proponent of the strike would squarely collide with the clear holdings of Batson and Purkett that merely affirming a good-faith motive is insufficient to satisfy the proponent’s burden of production. See Purkett, 514 U.S. at 769, 115 S.Ct. 1769; Batson, 476 U.S. at 98, 106 S.Ct. 1712.

We make these observations not to impugn the good faith of attorneys or judges, but out of concern that approval of the Third District decision in this case would undermine the goal of “the elimination of racial discrimination in the exercise of peremptory challenges.” Melbourne, 679 So.2d at 764. The dissent suggests we are ignoring or abandoning the “overarching principle” of Melbourne and quotes the following statement from Hernandez v.

New York, 500 U.S. 352, 374, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (O’Connor, J., concurring in the judgment), for support: “Absent intentional discrimination violative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason, or no reason at all.” Dissenting op. at 1207. The exception in this statement is crucial; in fact, it lies at the heart of all United States Supreme Court precedent arising from and including Bat-son.

Batson, Neil and their progeny, including Melbourne, concern the means for discerning and eliminating intentional discrimination in the exercise of peremptory challenges. The Court in Batson specifically rejected the argument that “the privilege of unfettered exercise of the challenge is of [such] vital importance to the criminal justice system” that a prosecutor’s reasons for the exercise of an individual strike could never be questioned. 476 U.S. at 98, 106 S.Ct. 1712.

We leave undisturbed the principle of our precedent dating back to Neil, 457 So.2d at 486, that “[t]he initial presumption is that peremptories will be exercised in a nondiscriminatory manner.” See also Windom v. State, 656 So.2d 432, 437 (Fla.1995) (reiterating statement in Neil); State v. Johans, 613 So.2d 1319, 1322 (Fla.1993) (stating that “the presumption of validity of peremptory strikes established in Neil is still the law in Florida”).

However, we note that the State is not entitled to this presumption unless the existence of its proffered reason is either confirmed by the trial court or otherwise supported by the record. Just as the failure to offer any reason whatsoever would be inadequate to sustain a strike, equally inadequate is an unconfirmed subjective impression that cannot be confirmed by the trial court or reviewed by the appellate court because there is no record support.

Therefore, we adhere to the essential principles of both Wright and Melbourne by holding that a potential juror’s nonverbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race neutral. III.

THE INSTANT CASE In this case the prosecutor’s asserted reason for the peremptory challenge — -the juror’s lack of interest — was unobserved by the trial court, unsupported by the record, and directly contradicted by defense counsel’s identification of facial expressions and record responses given by the venireperson indicating an interest in serving. In response to the prosecutor’s contention that the venireperson, Ms.

George, was “disinterested,” defense counsel countered with his observation that the African-American juror was “very attentive [and] smiled in a lighthearted manner.” Defense counsel further observed that when asked who was happy to be here on jury duty, Ms.

George was the only person to “affirmatively respond” that “she was happy when she got her jury document notice.” Despite these conflicting views by the attorneys of the juror’s responses and demeanor, the trial court took the prosecutor’s statement that the juror was uninterested at “her word.” Thus, the trial court not only ruled in the prosecutor’s favor without confirming the purported lack of interest, but did so without explaining why he chose the representation of one “officer of the court” over that of another.

This scenario underscores the problem in accepting an attorney’s assertion of good faith as a basis for allowing a peremptory challenge. Although the dissent acknowledges that “[e]very trial court judge must closely observe the venire process and assiduously provide record support for the denial of any objection to a peremptory challenge,” dissenting op. at 1211, it is inescapable that there was no record support in this case. Moreover, Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.

Thus, the trial court’s acceptance of the prosecutor’s word “as an officer of the court,” in this case without determining why the defense counsel’s contrary observation was less credible essentially resulted in no factual determination by the trial court.

On this record, the trial court’s decision to allow the prosecutor’s peremptory challenge to an African-American juror based solely on the prosecutor’s “word,” which was contradicted by defense counsel and was otherwise without record support, is exactly the type of good faith affirmation that the United States Supreme Court in Batson and Purkett found would render the requirements of a race-neutral explanation “vain and illusory,” and therefore insufficient to satisfy equal protection.

In light of the disagreement of the prosecutor and defense attorney as to the juror’s demeanor, and the trial court’s inability to confirm the prosecutor’s impressions, Wright required that the strike be disallowed. Melbourne’s holding that the focus of the inquiry is on the genuineness of the explanation does not require a different result because in this case the State never satisfied its burden of production by proffering a race-neutral reason that was either observed by the trial court or otherwise supported by the record.

Accordingly, the decision of the district court below is quashed to the extent that it is inconsistent with this opinion. It is so ordered. ANSTEAD, C.J., and LEWIS and QUINCE, JJ., concur. WELLS, J., dissents-with an opinion. BELL, J., dissents with an opinion, in which WELLS and CANTERO, JJ., concur. . We have jurisdiction based on express and direct conflict with Wright. See art. V, § 3(b)(3), Fla. Const. .

Because the conflict created by the Third District’s decision is on an important issue that is likely to recur and therefore should be resolved for benefit of bench and bar, we decline to dismiss this case as moot on the grounds that Mr. Dorsey is now deceased. See State v. Clements, 668 So.2d 980 (Fla.1996) (holding that upon the death of a criminal defendant, an appeal of his or her conviction may be dismissed); but see Holly v.

Auld, 450 So.2d 217, 218 n. 1 (Fla.1984) ("It is well settled that mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur.”). . As we explain below, this issue does not arise where the opponent does not dispute the observation proffered as the reason for the strike. See, e.g., Watson v. State, 841 So.2d 659, 661 (Fla. 4th DCA 2003) (affirming trial court decision upholding peremptory challenge in case in which defense counsel did not contend State was wrong about the juror’s claimed lack of interest); Carter v.

State, 762 So.2d 1024, 1026-27 (Fla. 3d DCA 2000) (finding issue unpreserved where State explained that it exercised strike because juror had difficulty with concept of reasonable doubt and defendant did not point out to trial court that juror correctly answered questions on reasonable doubt). .

Article I,

section 16(

a) of the Florida Constitution presently provides in pertinent part: “In all criminal prosecutions the accused ... shall have the right ... to have a speedy and public trial by impartial jury....” .In Neil we stated that [t]he initial presumption is that perempto-ries will be exercised in a nondiscriminatory manner. A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged because of their race.

If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. 457 So.2d at 486 (footnote omitted, emphasis supplied). In State v. Johans, 613 So.2d 1319, 1321 (Fla.1993), this Court receded from Neil's determination that an inquiry is compelled only when the opponent of the strike demonstrates a "strong likelihood” of discrimination, and held that an inquiry is compelled whenever a party objects and asserts that the strike is made solely on the basis of race. .

We have recently reaffirmed our statement in Floyd regarding the need for record support for a challenged peremptory strike. See Rimmer v. State, 825 So.2d 304, 320-21 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002). . Although our phraseology in Wright may suggest that the trial court's observation and confirmation of the nonverbal behavior are distinct actions, for purposes of the record on appeal the first does not exist without the second. The trial judge’s confirmation makes the observation of the nonverbal behavior a matter of record for appellate review. .

In response to the dissent’s suggestion that this holding applies to jurors of a "particular gender, occupation or ’ profession or other economic, social, religious, political, or geographic group,” dissenting op. at 1204 n. 11, we note that this Court has not extended Neil’s protections beyond peremptory challenges based on race, gender, and ethnicity. See Muhammad v. State, 782 So.2d 343, 352 n. 4 (Fla.2001); Abshire v. State, 642 So.2d 542, 543-44 (Fla.1994); State v. Alen, 616 So.2d 452, 454 (Fla.1993). .

A party may generate record support for a strike based on a juror’s perceived lack of interest or inattentiveness by alerting the trial court to the behavior during voir dire. See State v. Metts, 829 S.W.2d 585, 588 (Mo.Ct.App.1992) ("We note ... that in future cases, the State should inform the court of any perceived 'inattentiveness’ on the part of a venire member.”).