Young v. State

744 So. 2d 1077, 1999 WL 767070
District Court of Appeal of Florida·Decided September 29, 1999·No. 98-1530·Published·Cited by 36 cases

Opinion

744 So.2d 1077 (1999)

Christopher YOUNG, Appellant,
v.
STATE of Florida, Appellee.

No. 98-1530.

District Court of Appeal of Florida, Fourth District.

September 29, 1999.
Rehearing Denied November 18, 1999.

*1079 Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Rochelle Lewis Kirdy, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Appellant Christopher Young was tried by a jury and convicted of robbery and a felony causing bodily injury. Young, an African-American, challenges his conviction on the ground that the trial court erred in denying his challenge to the state's peremptory strike of three jurors: Mr. Bayonne, an African-American male, Ms. Santiago, an Hispanic female, and Ms. Polk-Cohen, an African-American female. The jury seated consisted of three African-Americans, two Hispanics, and two members whose race was identified by the trial court as "not black or Hispanic." We hold that the trial court did not abuse its discretion in allowing the state's challenges to the jurors, and affirm.

Prior to 1984, the law relegated attacks on a prosecutor's use of peremptory challenges to a backwater. The burden of proving that a prosecutor had engaged in racial discrimination during jury selection was almost impossible to meet. A defendant was required to show not just that the prosecutor had discriminated in his case, but that the prosecutor had systematically used peremptory challenges against African-Americans "over a period of time." See State v. Simpson, 326 So.2d 54, 55 (Fla. 4th DCA 1976) (quoting Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). In Simpson, we quoted from United States v. Pearson, 448 F.2d 1207 (5th Cir.1971), to demonstrate how difficult it was to attack a prosecutor's exercise of challenges during jury selection:

The burden of proof faced by defendants is most difficult. It might require checking the docket for a reasonable period of time for the names of defendants and their attorneys, investigation as to the race of the various defendants, the final composition of the petit jury and the manner in which each side exercised its peremptory challenges. We can well understand how the present defendants' counsel were unable to produce additional evidence. In the six years which have passed since Swain, we have not found a single instance in which a defendant has prevailed on this issue.

Pearson, 448 F.2d at 1217-18.

State v. Neil, 457 So.2d 481 (Fla.1984), effected a sea change in the law surrounding jury selection. The supreme court rejected the Swain approach and set forth the "test" for trial courts to apply in ruling on the claim that a party had exercised a peremptory challenge solely on the basis of race:

A party concerned about the other side's use of peremptory challenges must *1080 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 ... [T]hen 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 jurors' race. The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue.

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

The United States Supreme Court followed suit two years later in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it overruled Swain and acknowledged that the Swain standard imposed a "crippling burden of proof" that rendered a prosecutor's peremptory challenges largely immune from constitutional scrutiny. Id. 476 U.S. at 92-93, 106 S.Ct. 1712. The Court held that the Equal Protection Clause prohibited a prosecutor from challenging veniremembers solely on account of their race.

In 1988, the Florida Supreme Court decided State v. Slappy, 522 So.2d 18 (Fla. 1988), receded from, Melbourne v. State, 679 So.2d 759 (Fla.1996). Slappy extended Neil in a number of significant ways. First, where Neil had required a showing of "a strong likelihood" that a juror had been challenged on the basis of race for there to be a Neil hearing, Slappy clarified that "any doubt as to whether the complaining party has met its initial burden should be resolved in that party's favor."[1] 522 So.2d at 22. Second, Slappy specified that the seating of a minority member on the jury did not foreclose a Neil challenge. As the supreme court framed the issue:

[T]he issue is not whether several jurors have been excused because of their race, but whether any juror has been so excused, independent of any other. This is so because
the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.

Id. at 21 (quoting United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987)).

Third, Slappy required the trial judge to evaluate the credibility of the person giving a reason for the strike, "as well as the credibility of the asserted reasons ... weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record." Id. at 22. To permit the questioned peremptory challenge, the trial judge had to "conclude that the proffered reasons [were], first, neutral and reasonable and, second, not a pretext." Id. The supreme court gave a nonexclusive list of five factors that "tend to show that the state's reasons [for a peremptory challenge] are not actually supported by the record or are an impermissible pretext":

(1) alleged group bias not shown to be shared by the juror in question, (2) failure to examine the juror or perfunctory *1081 examination, assuming neither the trial court nor opposing counsel had questioned the juror, (3) singling the juror out for special questioning designed to evoke a certain response, (4) the prosecutor's reason is unrelated

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Young v. State, 744 So. 2d 1077, 1999 WL 767070 (Fla. Ct. App. 1999).

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