Harrison v. Emanuel

694 So. 2d 759, 1997 WL 163012
CourtDistrict Court of Appeal of Florida
DecidedApril 9, 1997
Docket96-0801
StatusPublished
Cited by5 cases

This text of 694 So. 2d 759 (Harrison v. Emanuel) 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
Harrison v. Emanuel, 694 So. 2d 759, 1997 WL 163012 (Fla. Ct. App. 1997).

Opinion

694 So.2d 759 (1997)

Barclay Gaylan HARRISON, Jr., and Bob Dean Supply, Appellants,
v.
Marcus EMANUEL, Appellee.

No. 96-0801.

District Court of Appeal of Florida, Fourth District.

April 9, 1997.
Rehearing, Rehearing, and Certification Denied June 20, 1997.

George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Lorenzo Williams and Paul P. McMahon of Gary, Williams, Parenti, Finney, Lewis & McManus, P.A., Ft. Pierce, for appellee.

Rehearing, Rehearing En Banc, and Certification Denied June 20, 1997.

STEVENSON, Judge.

This is an appeal from a jury verdict in a personal injury action awarding appellee, Marcus Emanuel, $292,324.63 for injuries sustained in a rear-end automobile accident. The sole issue on appeal is whether the trial court, during voir dire, erred in prohibiting the defense from exercising a peremptory strike against the lone black juror on the venire. We affirm.

JURY SELECTION

During voir dire, defense counsel attempted to remove Lawrence Jenkins, juror # 4, by peremptory challenge. Mr. Jenkins was the only black venireperson. Earlier, Mr. Jenkins explained that he is a retired music teacher. He had served on a jury in a prior civil case. Neither he, nor anyone in his family, has been a party in a lawsuit. When the plaintiff's attorney asked for a show of hands to see who had been involved in an automobile accident, Mr. Jenkins indicated that he had. Mr. Jenkins elaborated: "Oh, brother. It's been some years ago. I can't *760 think of the year. But it was on I-95. I was rear-ended on I-95." There was no more inquiry into this accident.

Later, the following exchange took place:
THE COURT: Now, Mr. Beasley [defense counsel], any peremptory challenges ... ?
[DEFENSE]: Yes. Lawrence Jenkins.
THE COURT: Mr. Jenkins is challenged. Mr. Williams, is there any—is somebody going to make an inquiry? This is our only black juror.
[PLAINTIFF'S COUNSEL]: I was going to ask a reason for the challenge. I was trying to properly phrase it, but you're more direct than me.
I don't see anything out there that he said one way or the other to indicate that he should be removed from this panel.
THE COURT: Mr. Beasley, can you give me a race neutral basis for Mr. Jenkins being excused?
[DEFENSE]: Yes, your Honor.
THE COURT: What is it?
[DEFENSE]: Mr. Jenkins said he was involved in a rear-end accident on I-95. This is also a rear-end accident. He was the one who was rear-ended. I think that would create some sympathy in his mind in this case.
THE COURT: I'm going to deny your peremptory challenge, Mr. Beasley. I don't find that to be a race neutral basis. There is no indication that he had any bias or prejudice in that regard.
[DEFENSE]: I don't have to prove bias or prejudice, Judge. I think that he is a rear-end plaintiff. That's alone enough for me to create my challenge, and that's a race neutral challenge.
THE COURT: I don't find it race neutral. I won't dismiss him.
. . . . .
THE COURT: Let the record reflect that Mr. Jenkins, Lawrence Jenkins, is a juror at this point in time. He's now become juror number three. He is an African American. That the—
[DEFENSE]: Judge, there's been no testimony that he's an African American.
THE COURT: Let the record reflect the Court takes judicial notice that he is a black man, and the plaintiff is a black person, so the record is clear on this issue.

DISCUSSION

In State v. Neil, 457 So.2d 481 (Fla.1984), the supreme court established a procedure for the trial court when the issue of racemotivated peremptory challenges arises. The procedure has evolved since then, and was recently clarified:

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). 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.

Melbourne v. State, 679 So.2d 759, 764 (Fla.1996)(emphasis added).

PROPER OBJECTION?

We reject appellant's contention that the plaintiff never raised a proper objection to the peremptory challenge of juror Jenkins so as to trigger a Neil inquiry. The objection in this case was very similar to the one raised in Melbourne:

[t]he entire text of defense counsel's objection reads as follows: "I would raise a *761 Baxter Johans challenge, JOHANS. He's a black man...."

679 So.2d at 765.

Justice Shaw, writing for the majority in Melbourne, explained that this objection satisfied prongs (a) and (b) of the objecting party's initial burden: "Giving these words their plain meaning, defense counsel seemed to be voicing a general objection on racial grounds to the State's strike." Id. Thus, the supreme court made it clear that no magic words are required so long as the party objecting timely communicates to the court and the opposing side an objection to the allegedly improper use of a peremptory challenge on the basis of race. Likewise, plaintiff's counsel in this case raised a sufficient objection in agreeing that an inquiry was needed into the exclusion of "the only black juror." While the objection in Melbourne was deficient in its failure to include a request for a race-neutral reason for the strike (prong (c)), id., plaintiff's counsel in this case expressly sought "a reason for the challenge."

In concluding that plaintiff's counsel raised an adequate objection, we note that "any doubt concerning whether the objecting party has met its initial burden must be resolved in that party's favor." State v. Holiday, 682 So.2d 1092, 1093 (Fla.1996). Furthermore, the evolution of the Neil procedure has included a streamlining of this initial burden. In State v. Johans, 613 So.2d 1319, 1321 (Fla.1993), the court clearly did away with any burden by the objecting party to demonstrate a prima facie case of a "strong likelihood" of discrimination. Finding this initial burden unmanageable, the supreme court in Johans replaced it with "a procedure that gives clear and certain guidance to trial courts in dealing with peremptory challenges." Id. Thus, Johans held that a Neil inquiry is required whenever an objection is raised that a peremptory challenge is being used in a racially discriminatory manner:

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Cite This Page — Counsel Stack

Bluebook (online)
694 So. 2d 759, 1997 WL 163012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-emanuel-fladistctapp-1997.