Howell v. State

District Court of Appeal of Florida

Howell v. State

1 So. 3d 322, 2009 Fla. App. LEXIS 326, 2009 WL 127864

CourtDistrict Court of Appeal of Florida

DecidedJanuary 21, 2009

Docket3D07-1166

StatusPublished

This text of 1 So. 3d 322 (Howell 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

Howell v. State, 1 So. 3d 322, 2009 Fla. App. LEXIS 326, 2009 WL 127864 (Fla. Ct. App. 2009).

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Opinion

RAMIREZ, J.

Andre Howell challenges his conviction on the basis of an error that occurred during jury selection. Because Howell’s reason for the peremptory challenge was based on how the juror was looking at him and the court did not observe this, under Dorsey v. State, 868 So.2d 1192 (Fla.2003), the stated reason was not supported by the record and was properly denied.

When Howell attempted to exercise a peremptory challenge of juror Maria Ber-mudez, the prosecutor requested a gender neutral reason. The trial court added that the juror was Hispanic. Defense counsel stated that their client expressed discomfort with the way the juror was looking at him. The judge said that he did not see that. As in Brown v. State, 995 So.2d 1099 (Fla. 3d DCA 2008), that meant such nonverbal communication cannot support the strike, relying on Dorsey. In Dorsey, the Florida Supreme Court held 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.” Id. at 1202. Here, as in Dorsey, the defense relied on nonverbal conduct which neither the judge nor the prosecutor could confirm and is not supported by the record. Consequently, the proffered reason was not gender, or ethnically, neutral and the judge properly denied the challenge.

We therefore affirm.

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RAMIREZ, J.

Andre Howell challenges his conviction on the basis of an error that occurred during jury selection. Because Howell’s reason for the peremptory challenge was based on how the juror was looking at him and the court did not observe this, under Dorsey v. State, 868 So.2d 1192 (Fla.2003), the stated reason was not supported by the record and was properly denied.

When Howell attempted to exercise a peremptory challenge of juror Maria Ber-mudez, the prosecutor requested a gender neutral reason. The trial court added that the juror was Hispanic. Defense counsel stated that their client expressed discomfort with the way the juror was looking at him. The judge said that he did not see that. As in Brown v. State, 995 So.2d 1099 (Fla. 3d DCA 2008), that meant such nonverbal communication cannot support the strike, relying on Dorsey. In Dorsey, the Florida Supreme Court held 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.” Id. at 1202. Here, as in Dorsey, the defense relied on nonverbal conduct which neither the judge nor the prosecutor could confirm and is not supported by the record. Consequently, the proffered reason was not gender, or ethnically, neutral and the judge properly denied the challenge.

We therefore affirm.

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Bluebook (online)

1 So. 3d 322, 2009 Fla. App. LEXIS 326, 2009 WL 127864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-state-fladistctapp-2009.

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