U.S. v. Dennis

• Decision Date: 24 November 1986
• Docket Number: No. 85-3089,85-3089
• Citation: 804 F.2d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Roy DENNIS, Sr., Sharon Denise Cohen, Clarence Bobby Jennings, Brenda Jewell Hurley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1208

804 F.2d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Roy DENNIS, Sr., Sharon Denise Cohen, Clarence Bobby

Jennings, Brenda Jewell Hurley, Defendants-Appellants.

No. 85-3089.

United States Court of Appeals, Eleventh Circuit.

Nov. 24, 1986.

William J. Sheppard, Courtney L. Johnson, Jacksonville, Fla., for dennis.

Brent D. Shore, Jacksonville, Fla., for Cohen.

Eugene F. Murphy, Jacksonville Beach, Fla., for Jennings.

Howard W. Skinner, Jacksonville, Fla., for Hurley.

M. Alan Ceballos, Asst. U.S. Atty., Jacksonville, Fla., for the U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before HILL, Circuit Judge, TUTTLE ^* and HENDERSON, ^** Senior Circuit Judges.

ON PETITIONS FOR REHEARING

(Opinion April 14, 1986, 11th Cir.1986, 786 F.2d 1029)

PER CURIAM:

Appellants petition for rehearing with suggestion for rehearing en banc. Having reconsidered the initial opinion, the panel has concluded that the petition for rehearing should be GRANTED in part and DENIED in part. The suggestion for rehearing en banc has not been considered by the full court. After filing of this modified opinion, the petition for rehearing en banc may be properly considered by the full court. Accordingly, the petition for rehearing is denied in every respect but the following: Part VII of the opinion, 786 F.2d 1029, 1048-49 (11th Cir.1986), is stricken in its entirety and the following is substituted in its stead:

VII. THE GOVERNMENT'S USE OF ITS PEREMPTORY CHALLENGES

The government used peremptory challenges to strike three black males from the jury panel. In each instance, defense counsel requested that the trial court inquire into the government's reasons for striking the prospective jurors to determine whether the prosecutor was exercising his peremptory challenges on the basis of race, in violation of appellants' constitutional rights. Those requests were denied. Two black women were eventually seated on the jury that convicted appellants, who are black.

Appellants claim that the record revealed no legitimate basis for striking the three black males who were removed from the jury panel; indeed, according to appellants, the responses of two of the three at voir dire indicated that they would be less inclined than the average individual to exhibit any particular sympathy toward criminal defendants. Appellants argue that they have thus made out a prima facie case in support of their claim that black males were unconstitutionally excluded from the jury that convicted them, and that the government should now be required to provide a nondiscriminatory explanation for the exercise of the three peremptory challenges it utilized to strike the three black males who were on the venire.

Appellants rely on the recent decision of the Supreme Court in Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in support of their claim. ²¹ In that case the Court held that, where a defendant is able to make out a prima facie case of unconstitutional discrimination by the prosecutor in the exercise of his peremptory challenges in the defendant's case, the prosecutor should be required by the trial court to offer a neutral explanation for the allegedly discriminatory challenges that is related to the particular case to be tried. The Supreme Court stated that a defendant could establish a prima facie case of purposeful discrimination as follows:

[T]he defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482, 494, 97 S.Ct. 1272, 1275, 51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, [345 U.S. 559, 562, 73 S.Ct. 891 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson v. Kentucky, --- U.S. at ----, 106 S.Ct. at 1723. In determining whether the defendant has made out a prima facie case of purposeful discrimination, courts are to consider "all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose." Id.

In this case, we find it clear that defendants failed to make out a prima facie case of purposeful discrimination. ²² As an initial matter, the relevant "cognizable racial group," for the purposes of our analysis, is the group of blacks generally and not just black males, as appellants urge. The test we apply to determine whether appellants are members of a cognizable racial group under Batson is the test applied in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498, cited in Batson, --- U.S. at ----, 106 S.Ct. at 1723. Such a group is "one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied." Castaneda, 430 U.S. at 494, 97 S.Ct. at 1274. The group of blacks generally clearly qualifies under this definition; appellants have failed to show, however, that black males constitute a distinct, recognizable subclass of individuals who have been singled out for different treatment under the laws not simply as blacks, but as black males. It would therefore be inappropriate for us to narrow the "cognizable racial group," for present purposes, to include only black males and...