Wimberly v. State

118 So. 3d 816, 2012 WL 1859198, 2012 Fla. App. LEXIS 8256
CourtDistrict Court of Appeal of Florida
DecidedMay 23, 2012
DocketNo. 4D10-1769
StatusPublished
Cited by10 cases

This text of 118 So. 3d 816 (Wimberly 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
Wimberly v. State, 118 So. 3d 816, 2012 WL 1859198, 2012 Fla. App. LEXIS 8256 (Fla. Ct. App. 2012).

Opinion

GERBER, J.

The defendant appeals from her conviction for second degree murder and possession of a weapon on school grounds. She argues that the trial court erred in: (1) denying her motion to declare unconstitutional, as applied to juveniles, section 775.027, Florida Statutes (2008), which defines the standard for the determination of insanity; (2) denying her motion to disallow the state’s peremptory strike of a prospective juror; (3) denying her motion to suppress her incriminating statements; and (4) denying her motion for mistrial based on the state’s alleged improper closing argument. We affirm on all arguments raised.

We write to address only the second argument, that is, whether the trial court erred in denying the defendant’s motion to disallow the state’s peremptory strike of a prospective juror. That juror, identified as juror 28, was African-American. The defendant is African-American, and the victim was white. The state exercised five peremptory challenges against African-Americans, with the fifth being juror 23. The defendant primarily argues that, based on the prior strikes which the state exercised against African-Americans, the state’s reason for striking juror 23 was not genuine and thereby deprived her of an impartial jury.

We recognize that prior strikes exercised against the same racial group are relevant to the genuineness inquiry. However, we conclude, based on the record in this case, that the court did not err in finding the state’s reason for striking juror 23 to be genuine. To support our conclusion, we shall provide a detailed account of the record in this case.

Juror 23, like the other prospective jurors, was asked to complete a written questionnaire in advance of voir dire because the case received extensive media attention. The questionnaire sought the prospective jurors’ opinions on a variety of topics, including the insanity defense which the defendant intended to raise at trial. Juror 23’s lack of responses to the questionnaire became the subject of discussion between the state and juror 23 during voir dire. In the interest of completeness, we provide the entire exchange between the state and juror 23:

State: On the jury questionnaire you didn’t answer the questions about whether you had any opinions about law enforcement that would affect the way you viewed the evidence. You didn’t answer the question about children or about guns or about age. So I’m going to have to talk to you a little bit, okay, about that[.] And you indicated you didn’t understand the word insanity, which other people had that problem [818]*818with as well. When we talk about insanity we talk about people who are mentally ill, okay. And what we’re wondering about is if you have opinions about that before you hear evidence. You can have an opinion after you hear the evidence. We’re concerned about people who have an opinion before they hear the evidence. We’re concerned that you might think being insane is never an excuse for committing a crime or that you think being insane is always an excuse for committing a crime, that’s what we’re looking for. Do you think you have an opinion that would go to either of those extremes?
Juror 23: No.
State: No. Okay. Are you having any trouble understanding us?
Juror 23: I stand — I stand — understand some of it.
State: Uh-huh.
Juror 23: Not a lot.
State: Not all of it?
Juror 23: I understand, but my English [unintelligible] too long.
State: Okay. So it’s just being able to communicate, but understanding, you understand everything that we’re talking about? Because, obviously, it’s really important that you be able to understand everything that’s said in the courtroom. You can’t really evaluate it fairly if you don’t understand it. That’s not a problem for you?
Juror 23: No.
State: Okay. Great. All right. How do you feel about a law that you don’t agree with, would you be able to follow it even if you don’t agree with it?
Juror 23: I’d follow it.
State: Okay. What about law enforcement, do you have any opinions about law enforcement? You said you had some contact with law enforcement, did that leave you with an impression about people who are members of law enforcement?
Juror 23: No.
State: No. Okay. So I don’t have to worry that you have any preconceived ideas about police officers or anything like that?
Juror 23: No problem.

Later during voir dire, the defense spoke with juror 23. We provide the entire exchange between the defense and juror 23 (with interjection by juror 24, who apparently was seated next to juror 23):

Defense: [Juror 23]?
Juror 23: Yes.
Defense: Good. [Juror 23], you indicated — and I’ll try to speak up so you can hear, okay?
Juror 23: My throat.
Defense: Pardon?
Juror 23: My throat is not too good.
Defense: Do you want some water?
Juror 23: No.
Defense: No?
Juror 23: No.
Defense: You’re okay?
Juror 23: I come from a cold I had before, it don’t go out yet.
Defense: I’m sorry?
Juror 24: She had a cold.
Defense: Oh, she had a cold?
Juror 24: Yes.
Defense: Oh, okay. Thank you.
Juror 24: You’re welcome.
Defense: All right. You indicated when Judge Murphy was questioning you yesterday I believe that you work in the nursing department?
Juror 23: Yes.
Defense: Where is that?
Juror 23: In Dania.
[819]*819Defense: In Dania?
Juror 23: In a nursing home.
Defense: In a nursing home. How long have you been doing that kind of work? Juror 23: 24 years.
Defense: 24 years. And you’re married?
Juror 23: Yes.
Defense: Okay. And what does your husband do?
Juror 23: He work in rent-a-car.
Defense: And what does he do for them?
Juror 23: Rental agent. Rental agent.
Defense: Okay. And again, I’m going to ask you this question, and we can deal with this without — outside the presence of the rest of the jury if you, but you indicated that you had some family experience with domestic violence.
Juror 23: Yes.

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Cite This Page — Counsel Stack

Bluebook (online)
118 So. 3d 816, 2012 WL 1859198, 2012 Fla. App. LEXIS 8256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-state-fladistctapp-2012.