Cobb v. State

825 So. 2d 1080, 2002 WL 31059829
CourtDistrict Court of Appeal of Florida
DecidedSeptember 18, 2002
Docket4D01-289
StatusPublished
Cited by17 cases

This text of 825 So. 2d 1080 (Cobb v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobb v. State, 825 So. 2d 1080, 2002 WL 31059829 (Fla. Ct. App. 2002).

Opinion

825 So.2d 1080 (2002)

George COBB, Appellant,
v.
STATE of Florida, Appellee.

No. 4D01-289.

District Court of Appeal of Florida, Fourth District.

September 18, 2002.

*1081 Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

George Cobb appeals from a judgment of conviction for selling a counterfeit controlled substance. We affirm on all three *1082 points raised on appeal, but find that one issue merits discussion. Appellant contends that the trial court erred during jury selection in allowing the state's peremptory strike of a black prospective juror. We affirm, because the trial court's ruling was not clearly erroneous.

The prospective juror in question was Zeinab Osman, a twenty year-old black female college student. When the state peremptorily struck Osman, appellant objected and requested a race-neutral reason.[1] The state responded:

My reason is that, she is a 20 year old student. I think that college has a drawing environment. I don't think that she is old enough or responsible enough to understand what's going on, because of her environment with drugs [sic] cultures and colleges.

The prosecutor further explained that, based on her experience as a juvenile prosecutor, she believed younger people were more tolerant of drugs. For that reason, she said, she would try to strike anyone under the age of twenty-eight from the jury. Insisting that her reason for striking Osman had "nothing to do with the fact that she is black," the prosecutor said that she did not want "a young college kid, whoever they may be" on the jury.

Appellant pointed out that Osman's comments during voir dire did not show that she had a higher tolerance for drug use; on the contrary, her responses to the prosecutor's questions showed that she did not. During voir dire, the prosecutor had asked the members of the venire how they felt about the legalization of drugs. The following conversation took place between the prosecutor and Osman:

MS. ROBERTS: Ms. Osman, as a student, there is probably a lot of people at the college that might use drugs, how do you feel about the legalization of drugs?
MS. OSMAN: No, I don't feel that they should legalize drugs because everybody else is using them.
MS. ROBERTS: Could you sit in judgment, maybe knowing that other people use drugs, and they are not caught, can you sit in judgment and apply the law in this case?
MS. OSMAN: Yes, I could.

Based upon the above exchange, appellant urged the trial court to deny the challenge. He argued that the record did not support the state's proffered reason that Osman had a higher tolerance for drug use. He also requested that the state question Osman further concerning her views on drugs. However, the state declined, maintaining that further questioning of Osman would be futile since nothing would change her mind about the juror.

The record shows that the trial judge initially viewed the state's reasons for striking Osman with skepticism, stating: "I don't see anything that she said that you can hang your hat on." The prosecutor responded that the court had to view the strike from her perspective and statements, not from the prospective juror's responses. This echoed the state's earlier remarks during jury selection that a race-neutral reason is "what it appears to me, it is not what it appears to a reasonable person or anybody else." Though the trial judge observed that Osman gave the "right answer" to the prosecutor's questions, he allowed the strike over defense counsel's objections.

*1083 Whether or not an explanation proffered by the proponent of a peremptory strike is race-neutral and genuine is a determination to be made by the trial judge. Melbourne v. State, 679 So.2d 759 (Fla.1996). In making this determination, the trial judge is not bound to accept the reasons proffered by the proponent at face value, but must evaluate the reasons as a trial judge would weigh any disputed fact. State v. Slappy, 522 So.2d 18, 22 (Fla. 1988), receded from on other grounds, Melbourne, 679 So.2d at 765. The court must examine "all the circumstances surrounding the strike" to satisfy itself that the strike is not a pretext. Melbourne, 679 So.2d at 764; Jones v. State, 787 So.2d 154, 156 (Fla. 4th DCA 2001).

Under Melbourne, the following procedure must be followed when peremptory strikes are challenged as discriminatory:

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. If these initial requirements are met (step 1), 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 (step 2). 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 (step 3).

679 So.2d at 764 (footnotes omitted). Melbourne further explains that:

The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Id. (Footnotes omitted).

In this case, the prosecutor completed step 2 of the Melbourne analysis by coming forward with a facially race-neutral reason for striking Osman. She explained that she did not want Osman on the jury of this drug case because Osman, a young college student, might have liberal drug attitudes due to her age and greater exposure to drug use in college. Although appellant claims that these reasons were not race-neutral, we disagree. "Liberalism" has been upheld as a valid race-neutral reason for a peremptory strike. See Slappy, 522 So.2d at 23. Step 2 "does not demand an explanation that is persuasive, or even plausible." Johnson v. State. 706 So.2d 401, 403 (Fla. 3d DCA 1998)(quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). Johnson explains:

There is no specific threshold of neutrality that must be satisfied by the party explaining the peremptory strike at step 2 of the Melbourne analysis. At this second step there are only race-neutral reasons and those that are race-based.

Id.

In step 3 of the Melbourne analysis, the trial court must evaluate the "circumstances surrounding the strike" in order to decide whether a reason given for a peremptory challenge is genuine and nonpretextual. Melbourne, 679 So.2d at 764 n. 8; Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999); Overstreet v. State, 712 So.2d 1174 (Fla. 3d DCA 1998). In Slappy, the supreme court provided a nonexclusive list of five factors, the presence of any of which will tend to show that the proffered reason is a pretext:

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Bluebook (online)
825 So. 2d 1080, 2002 WL 31059829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-state-fladistctapp-2002.