White v. State

754 So. 2d 78, 2000 WL 256166
District Court of Appeal of Florida·Decided March 8, 2000·No. 3D98-3280·Published·Cited by 5 cases

Opinion

754 So.2d 78 (2000)

Livian WHITE, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D98-3280.

District Court of Appeal of Florida, Third District.

March 8, 2000.
Rehearing Denied April 27, 2000.

Bennett H. Brummer, Public Defender, and Susan Martin, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before COPE, LEVY and SORONDO, JJ.

SORONDO, J.

Livian White (defendant) appeals from the lower court's final judgment and sentence. We reverse.

Defendant was charged with battery on a law enforcement officer and three counts *79 of resisting an officer with violence. She was stopped for a traffic offense and had an outstanding warrant for driving with a suspended license, three officers attempted to arrest her. These three officers testified that defendant became aggressive and punched one in the nose. He responded by punching defendant. The officers struggled with defendant and eventually took her into custody.

During voir dire examination, counsel for both parties asked many questions relating to the credibility of police officers, as the defense was to be that the prosecution was a cover-up for police brutality. As concerns the issue presented here, defense counsel asked prospective juror Adderley, an African-American, the following question and received the following answer:

Q. Do you think police officers, because of the basis of their job, are more likely to stick together than other people?
A. Yes.

Defense counsel asked prospective juror Holloway, also an African-American:

Q. Mr. Holloway, do you think that an officer is going to turn in another officer that is using excessive force on someone?
A. I wouldn't think he would turn him in unless if he had actual evidence, that he was there. I wouldn't know until I heard the facts involved.

While on the same subject, defense counsel asked prospective juror Collins, a police dispatcher who is white:

Q. Ms. Collins, I understand that you work with police officers; what do you think about that?
A. I think it depends on the partner and the situation, depending on what the person thinks that they can overlook and what they know they can't overlook.
Q. What about police brutality?
A. That's touchier. One, because it's every person's interpretation. Like me going like this to her (demonstrating) the officer could be—that's one thing. If I was beating her in the head with an asp, that would be obviously brutality, and an officer would be obligated to say something, although they wouldn't necessarily.

Counsel then asked the following question of another prospective juror, which he ultimately asked of Ms Collins:

Q. Do you think that in most cases police officers turn in there [sic] fellow officers?
A. Another officer may or may not. It's more likely that they would not say something and then get dragged into it later and then have it possibly turn into a case of why didn't they stop it if they saw it happen.
Q. So you're saying that one reason an officer may not say something, is because he would be putting himself in jeopardy; is that correct?
A. (Witness nods head.)

The state moved to excuse prospective jurors Holloway and Adderley for cause, which motions were denied. The state then exercised peremptory challenges against them. Between the state's challenges to these jurors, the defense sought to strike prospective juror Collins, who, despite stating that she could be fair, was a dispatcher and worked with law enforcement.

After the strike of Adderley, the defense objected and asked for a Melbourne[1] inquiry, noting that Adderley was a black female, that Holloway was a black male, and that the entire panel was in agreement when asked whether or not it was more likely for an officer not to turn in his partner. The defense contended that the state's reason was pretextual, as Collins was similarly situated and not stricken by the state.

The court noted its concern, stating that defense counsel was correct, that most of the panel did agree, and questioned whether *80 the entire panel should be stricken if such a response was a proper basis for a challenge. The prosecutor responded that it was his duty to strike only those people who responded verbally on this issue. The court and counsel discussed whether the panel should be recalled for more questioning, but ultimately the court did not permit further questioning and instead allowed the state's peremptory challenges.

Later in voir dire, the state sought to exercise a cause challenge against prospective juror Vamper, based upon her feelings about police officers, in general, and her statements that an officer had been disrespectful to her when issuing a ticket, using racial slurs. The prosecutor stated that while Vamper had stated initially that she could be fair, there remained a reasonable doubt as to whether she could put her experience aside and judge police officers fairly. The defense objected, asserting that she was the third black juror that the state had attempted to strike, and asked for a race-neutral reason. The court expressed great concern that Vamper was the third challenge that the state had exercised against a person of African-American descent. The prosecutor again asserted that he was moving to challenge the juror for cause. The court denied the cause challenge, but allowed the state to use a peremptory. Immediately before the jury was sworn, defense counsel stated, "For the record, I'm not accepting this panel."

The jury found defendant guilty of counts one and two, as charged, and not guilty of count four. The defendant was adjudicated guilty in conformity with the verdict and sentenced to concurrent terms of 364 days in county jail.

We begin our analysis by rejecting the state's suggestion that the Melbourne issue presented above was not properly preserved for appellate review. Defense counsel's statement that he was not accepting the panel, immediately before the jury was sworn, was sufficient to place the trial court on notice that the defendant's extensive Melbourne objections were not being abandoned. See Joiner v. State, 618 So.2d 174 (Fla.1993).

As concerns the prospective jurors in question, we do not believe that the trial court erred when it allowed the state's peremptory challenge of Ms. Vamper. Although she stated that she could be fair, her prior experience with a police officer who belittled her and used the most vile of racial epithets in addressing her, constituted a valid race-neutral reason for excusing her and the trial judge's conclusion that this reason was not pretextual cannot be found to be clearly erroneous.

The state's exercise of peremptory challenges against prospective jurors Adderley and Holloway are far more troublesome. While it is true that both of these jurors expressed the general view that police officers would "stick together" in excessive force situations, prospective juror Collins, although perhaps more articulate, said no less. In her answer to the question, "What about police brutality?," Ms.

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White v. State, 754 So. 2d 78, 2000 WL 256166 (Fla. Ct. App. 2000).

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