Mansell v. State

609 So. 2d 679, 1992 WL 353328
District Court of Appeal of Florida·Decided December 1, 1992·No. 91-2117·Published·Cited by 3 cases

Opinion

609 So.2d 679 (1992)

Carlton MANSELL, a/k/a Antonio Green, Appellant,
v.
STATE of Florida, Appellee.

No. 91-2117.

District Court of Appeal of Florida, First District.

December 1, 1992.

Nancy Daniels, Public Defender, Nancy L. Showalter, Asst. Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., for appellee.

KAHN, Judge.

Carlton Mansell appeals his conviction and sentence for possession of cocaine, *680 raising as his only point on appeal a contention that the trial court erred in finding that the reason given by the state for its use of a peremptory challenge to exclude a potential black juror was a valid, nonpretextual, race neutral reason. We reverse.

On the day of Mansell's arrest, twenty to thirty Escambia County Sheriff's officers were engaged in the execution of a search warrant at a small apartment complex. Appellant lived in an apartment in the complex, but which was not the focus of the search warrant. Officer McDonald, one of the deputies assisting in the execution of the search warrant, saw two people sitting on a porch at the front of an apartment. One of these two people turned out to be Mansell, who was seated on a stool with his hands down. According to Officer McDonald, Mansell dropped a small rock-type object, later identified as cocaine, on the porch near his feet. Another deputy approached appellant and ordered him to the ground in front of the porch. According to McDonald, another man, later identified as Derrick Gainer, ran around the side of the porch and hid underneath a nearby car. The officers observed and collected several small pieces of crack cocaine from the floor of the porch. They also discovered $417.00 in cash on Mansell's person.

The officer who actually recovered the cocaine, Officer Akin, testified that he retrieved the crack after McDonald pointed it out to him. According to Akin, the drugs were located about two feet from the stool on which Mansell had been seated. Akin also noted the presence of three or four other people in front of the apartment.

Appellant's defense at trial was that when the officers arrived to execute the search warrant, one Derrick Gainer ran away, throwing the cocaine on the porch near where Mansell was seated. Gainer, called as a rebuttal witness by the state, denied having drugs and admitted having $630.00 in cash on his person at the time of this incident. According to Gainer, $200.00 was to be used to get his car fixed, and $400.00 was actually his girlfriend's mother's rent money. Gainer was unable to provide the girlfriend's mother's landlord's name or a location where the rent would be paid.

It is quite clear that the jury in this case was called upon to resolve questions of credibility with regard to the testimony of Mansell and Gainer, both black men.

During jury selection, the following transpired:

MR. WILLIAMS [Prosecutor]: Your Honor, I'd like to inquire of Mr. Tolbert at the bench, please.
THE COURT: Okay, fine.
(Bench conference concluded)
THE COURT: Mr. Tolbert, sir, could you come forward?
(At the bench)
THE COURT: Good afternoon. Mr. Tolbert, the attorneys would like to address some questions to you out of the hearing of the other jurors. Okay. Mr. Williams.
MR. WILLIAMS: Mr. Tolbert, you work for the Escambia County Utilities?
PROSPECTIVE JUROR: I work for utilities service in Gulf Breeze.
MR. WILLIAMS: Oh, Gulf Breeze. Have you ever been charged with a crime yourself?
PROSPECTIVE JUROR: No, not — not any crimes. I have been — well, about 12 years ago, 14 years ago I had a drunken driving test — I mean, a — but I didn't have any license and I had it just — I didn't have any license.
MR. WILLIAMS: What happened to that case?
PROSPECTIVE JUROR: I paid it and got right off it.
MR. WILLIAMS: You were charged with no driver's license or no suspended driver's license?
PROSPECTIVE JUROR: I didn't have a driver's license at all.
MR. WILLIAMS: So you were charged with a misdemeanor and paid a fine?
PROSPECTIVE JUROR: Yes, sir.
MR. WILLIAMS: On your sheet you said you hadn't had any prior — been accused of a crime?
PROSPECTIVE JUROR: Not of a crime, no.
*681 MR. WILLIAMS: Is that because you consider it a misdemeanor?
PROSPECTIVE JUROR: Yeah, I guess so. They didn't do nothing about it.
MR. WILLIAMS: Okay. Let me ask you this. This case involves Crescent Street. Do you know that neighborhood?
PROSPECTIVE JUROR: No, I am not familiar with it.
MR. WILLIAMS: And how do you feel about drugs in the black neighborhoods?
PROSPECTIVE JUROR: Well, I don't approve of it myself. I just haven't — I don't use it and I don't go for it, because too many children and stuff, you know.
MR. WILLIAMS: Let me tell you one question. All the officers will be white here, but the defendant — mainly the defense witnesses will be black. Will that make it harder for you in any way to find him guilty if you believe the facts?
PROSPECTIVE JUROR: Nothing is going to stop me from what I think is right, yeah.
MR. WILLIAMS: In other words, that's why I brought you up here, that's something I wanted to ask you.
PROSPECTIVE JUROR: Yeah.
MR. WILLIAMS: Thank you, Mr. Tolbert.
THE COURT: Would you like to ask any questions?
MR. ROANE [Defense attorney]: No, judge.
THE COURT: Thank you. (Juror Tolbert off the bench)
THE COURT: Is there any challenge for cause?
MR. WILLIAMS: Well, Your Honor, I'd move to challenge Mr. Tolbert for saying he hasn't been accused of a crime when he had a no valid driver's license or suspended driver's license. He said he paid a fine for it.
THE COURT: The responses that I just heard from him indicate that there might be some confusion in his mind regarding whether or not a traffic citation for which one comes in and essentially pays a fine is in the nature of a crime. For that reason I would not consider a challenge for cause.
MR. WILLIAMS: Okay.
* * * * * *
MR. WILLIAMS: I move to strike 20, Mr. Bryant, No. 16, Mr. Tolbert.
MR. ROANE: Judge, we'd ask for reasons on Mr. Tolbert. He is a black male, and our defendant is black in this case, and we feel that any answers that he gave or did not give doesn't show any reason that he would not be a fair and impartial juror in this case.
THE COURT: Mr. Williams, you may respond.
MR. WILLIAMS: Well, Your Honor, he failed to answer truthfully on a card that he had —
THE COURT: What card?
MR. WILLIAMS: On the juror questionnaire.
THE COURT: Show me exactly what you're referring to, Counselor.
MR. WILLIAMS: Never been accused of a crime.
THE COURT

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Mansell v. State, 609 So. 2d 679, 1992 WL 353328 (Fla. Ct. App. 1992).

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