Joseph v. State

636 So. 2d 777, 1994 WL 137749
District Court of Appeal of Florida·Decided April 19, 1994·No. 93-264·Published·Cited by 16 cases

Opinion

636 So.2d 777 (1994)

Simon JOSEPH, Appellant,
v.
The STATE of Florida, Appellee.

No. 93-264.

District Court of Appeal of Florida, Third District.

April 19, 1994.

*778 Bennett H. Brummer, Public Defender and Rosa Figarola, Asst. Public Defender, and Ronald S. Lowy, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before NESBITT, JORGENSON and LEVY, JJ.

*779 LEVY, Judge.

This case presents the question of whether exercising a peremptory challenge of a Jewish venireperson, based solely upon the venireperson being Jewish, is constitutionally impermissible.

Simon Joseph, the defendant, was charged with battery on a law enforcement officer, after a confrontation with a Miami Beach parking enforcement officer, who had ticketed the defendant's parked taxi cab.

During voir dire at the defendant's trial, the State sought to excuse juror Marjorie Friedman by using a peremptory challenge. The following exchange then ensued:

DEFENSE COUNSEL: Judge, I'm going to ask — there is this line of cases that the State cannot excuse on the basis of prejudice.
THE COURT: I think the line you're referring to is the Neal/Slappy [sic] (phonetic) case. So far, I think that case only applies to black [sic] and Latins.
DEFENSE COUNSEL: What's been before, I don't know, but what I'm observing today is what I'm observing today. In the spirit of those cases, I perceive the only reason they're striking Ms. Friedman is they're perceiving her as being Jewish, and somehow identifying with the defendant, and on the basis of that, I would like for them to justify the strike of Ms. Friedman.
PROSECUTOR: I don't think this is a Neal/Slappy [sic].
THE COURT: Well, I'm not going to do that. I will deny your request. I don't think that line of cases has ever been upheld or applied to any other minority groups, but for the exception of Latins and blacks. I understand your point, and I think it should be preserved for appeal. You may be correct, but I will overrule it.

Ms. Friedman was excused from the jury. The trial proceeded and the defendant was convicted. The defendant now appeals, claiming that the trial court erred in overruling his objection to the State's peremptory challenge of Ms. Friedman.

In State v. Neil,[1] the Florida Supreme Court held that peremptory challenges may not be used to challenge potential jurors solely based upon the juror's race. Neil, 457 So.2d at 486. While Neil involved racial discrimination, the Supreme Court recognized that discrimination could be based upon other factors, such as religious, ethnic, and sexual differences, and specifically stated that "[t]he applicability [of this decision] to other groups will be left open and will be determined as such cases arise." Neil, 457 So.2d at 487. Recently, the Supreme Court extended Neil to apply to Hispanics. State v. Alen, 616 So.2d 452 (Fla. 1993), approving, 596 So.2d 1083 (Fla. 3d DCA 1992) (en banc). In so doing, the Supreme Court stated that

[t]he time now has come in Florida to extend Neil to protect potential jurors from being excluded from the jury solely on the basis of ethnicity.
... To satisfy the state's constitutional guarantee of an impartial jury, citizens who are otherwise qualified to serve as impartial jurors cannot be peremptorily challenged based on their membership in a particular ethnic group.

Alen, 616 So.2d at 454 (footnote omitted) (emphasis supplied).

While the definitions of the terms "ethnicity" and "ethnic group" are certainly susceptible to debate, Alen left no doubt that Neil could be properly applied to groups other than racial groups. In order to receive Neil protections, an ethnic group must meet the Supreme Court's definition of a "cognizable class". As expressed in Alen, "the cognizability requirement inherently demands that the group be objectively discernible from the rest of the community." Alen, 616 So.2d at 454 (footnote omitted). There are two aspects to determining if an ethnic group is objectively discernible:

First, the group's population should be large enough that the general community recognizes it as an identifiable group in the community. Second, the group should be distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately *780 represented by other segments of society.

Alen, 616 So.2d at 454. Although there is no definitive list of characteristics which objectively indicate membership in an ethnic group, factors such as race, gender, native language, and surname have been used as indicia. Alen, 616 So.2d at 455.[2]

This brings us to the narrow question which we today address: Do Jews constitute a cognizable class under Alen, rendering the peremptory challenge of a Jewish venireperson, based solely upon the venireperson being Jewish, unconstitutional under the Florida Constitution and Neil? We answer this question in the affirmative.

Applying the two-pronged test for cognizability, we conclude that Jews are a cognizable class. The first prong of the test is whether the group's population is large enough that the general community recognizes it as an identifiable group. Alen, 616 So.2d at 454. The Jewish population of Dade County, the county from which this venire was drawn, meets this element. The Jewish population of Dade County in 1990 was approximately 202,000 people. See Ira M. Sheskin, The Jews of South Florida, in South Florida: The Winds of Change 163, 177 (Thomas D. Boswell ed., 1991). The 1990 U.S. Census reported the total Dade County population as 1,937,094.[3]Florida Statistical Abstract 15 (Anne H. Shermyen ed., 26th ed., 1992). Consequently, Jews make up approximately 10% of Dade County's population. We conclude that both the percentage and absolute number of Jews in the Dade County population satisfies the first prong of the Alen cognizability test.

The second prong of the cognizability test, internal group cohesiveness, is also satisfied. Shared religious beliefs are one characteristic of an ethnic group. Alen v. State, 596 So.2d 1083, 1085 (Fla. 3d DCA 1992) (en banc), approved, 616 So.2d 452 (Fla. 1993). Jews share a large core of attitudes and ideas which stem from their common religious beliefs. It is common knowledge that Jews celebrate their sabbath on Saturday, not Sunday, and do not celebrate Christmas. These two facts alone significantly distinguish Jews from other segments of society. Jews also celebrate their own important religious holidays. Finally, Jews share a common experience of persecution which distinguishes them from other segments of society, such as the attempted genocide of Jews, for reasons based solely upon their religion, at the hands of the Nazis. This internal cohesiveness of beliefs and experiences more than meets the second element of the Alen test.

Finally, Jews are sufficiently objectively discernible from the rest of the community in order to be classified as a cognizable class. A person's surname is a recognized characteristic of membership in a cognizable class. Alen, 616 So.2d at 455. From the record before

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Joseph v. State, 636 So. 2d 777, 1994 WL 137749 (Fla. Ct. App. 1994).

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