Whitby v. State

933 So. 2d 557, 2006 WL 335480
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 2006
Docket3D04-1770
StatusPublished
Cited by12 cases

This text of 933 So. 2d 557 (Whitby 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
Whitby v. State, 933 So. 2d 557, 2006 WL 335480 (Fla. Ct. App. 2006).

Opinion

933 So.2d 557 (2006)

Edgar Sylvester WHITBY, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D04-1770.

District Court of Appeal of Florida, Third District.

February 15, 2006.

*558 Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.

Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The defendant, Edgar Sylvester Whitby, appeals his conviction for battery. As we are constrained by this court's opinions in Alsopp v. State, 855 So.2d 695 (Fla. 3d DCA 2003), and Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005), we reverse.

The defendant was charged with aggravated battery by knowingly or intentionally causing permanent disfigurement by throwing hot water on the victim. During jury selection, the State sought to back-strike prospective juror Lynn. The defense objected stating that Mr. Lynn, a white male, was a member of a protected class, and requested that the State provide a race-neutral reason. The trial court allowed the peremptory strike of prospective juror Lynn without requiring the State to proffer a race-neutral reason.

The defense then sought to challenge prospective juror Hayes for cause based upon her response that, as a result of her employment with the Drug Enforcement Agency ("DEA"), she would be biased in favor of a police officer when weighing his/her credibility. The State argued that Ms. Hayes should not be excused for cause because after further questioning, she had responded that she would not give a police officer's testimony more weight merely because he was a police officer. Before ruling on the cause challenge, the trial court brought juror Hayes back into the courtroom for further questioning. During this additional questioning, Ms. Hayes stated unequivocally that her verdict would be based upon the evidence presented. Based upon this response and her previous response that she would not give a police officer's testimony more weight merely because he was a police officer, the trial court denied the defendant's cause challenge of juror Hayes.

The jury found the defendant guilty of the lesser included offense of battery and he was sentenced to 300 days in jail. The defendant's appeal challenges the trial court's denial of his cause challenge as to juror Hayes and the trial court's failure to require the State to provide a race-neutral reason for its peremptory challenge of juror Lynn.

The standard for which we review a trial court's ruling on a cause challenge is abuse of discretion. Kessler v. State, 752 So.2d 545, 550 (Fla.1999). "A juror should be excused for cause if there is any reasonable doubt about the juror's ability to render an impartial verdict." Singleton v. State, 783 So.2d 970, 973 (Fla. 2001); see also Kessler, 752 So.2d at 550.

During voir dire, juror Hayes initially indicated that she would be biased in favor of a police officer's credibility. However, upon further questioning, she unequivocally stated that she would not give a police officer's testimony more weight due to his/her status as a law enforcement officer and that she would evaluate the case on the evidence presented. We, therefore, conclude that the trial court acted within its discretion by denying the defendant's cause challenge of Ms. Hayes. *559 See Grullon v. N. Miami Med. Ctr., 780 So.2d 196 (Fla. 3d DCA 2001).

While we conclude that the trial court did not abuse its discretion in denying the defendant's cause challenge of Ms. Hayes, we reverse based upon the trial court's failure to conduct a Neil inquiry regarding the State's peremptory challenge of juror Lynn. In doing so, we express our concern, as other judges of this court have expressed in the past, that the present procedure, which was intended to simplify the process, has led to unnecessary reversals of otherwise error-free trials decided by clearly impartial juries.

In order to protect against racial discrimination in the jury selection process, the Florida Supreme Court in State v. Neil, 457 So.2d 481 (Fla.1984), provided the trial courts with a procedure to follow when determining whether a peremptory challenge is unlawfully being exercised on racial grounds:

A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective juror's race.

Neil, 457 So.2d at 486-87 (footnotes omitted)(emphasis added).

Over the years, when it became clear that trial courts were having a difficult time applying the procedure established in Neil, the Florida Supreme Court refined the procedure in State v. Johans, 613 So.2d 1319 (Fla.1993). The difficulty appeared to be especially with the application of that portion of the Neil test which required the opponent of the strike to show a strong likelihood that the challenged juror was being stricken solely based upon his race before triggering an inquiry by the court. Thus, in order to provide clear guidance to the trial courts, the Florida Supreme Court again simplified the procedure and deleted the requirement that the opponent of the strike show that there was a strong likelihood that the juror was being challenged solely because of his/her race:

In Florida, there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. Neil, 457 So.2d at 486. Consequently, we have held that a party concerned about the other party's use of peremptory challenges must make a timely objection, demonstrate on the record that the challenged person or persons are members of a distinct racial group, and show that there is a strong likelihood that those individuals have been challenged solely because of their race. Id. However, the case law that has developed in this area does not clearly delineate what constitutes a "strong likelihood" that venire members have been challenged solely because of their race.
. . .
Rather than wait for the law in this area to be clarified on a case-by-case basis, we find it appropriate to establish a procedure that gives clear and certain *560 guidance to the trial courts in dealing with peremptory challenges. Accordingly, we hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. We recede from Neil and its progeny to the extent that they are inconsistent with this holding.

Johans, 613 So.2d at 1321 (emphasis added).

Thus, in Johans, the Florida Supreme Court eliminated the requirement in Neil

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Bluebook (online)
933 So. 2d 557, 2006 WL 335480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitby-v-state-fladistctapp-2006.