Abshire v. State, 81326

• Decision Date: 30 June 1994
• Docket Number: No. 81326,81326
• Citation: 642 So.2d 542
• Parties: 19 Fla. L. Weekly S353 Michael Gene ABSHIRE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 542

642 So.2d 542

19 Fla. L. Weekly S353

Michael Gene ABSHIRE, Appellant, v. STATE of Florida, Appellee.

No. 81326.

Supreme Court of Florida.

June 30, 1994.

Rehearing Denied Sept. 21, 1994.

David S. Morgan, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

SHAW, Justice.

Abshire appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We reverse the conviction and vacate the sentence of death.

In June of 1991, Michael G. Abshire, Christopher Marquard, and Stacey Ann Willetts were traveling together from North Carolina to Florida. On November 11, 1991, hunters found Willetts' remains in a wooded area. Abshire and Marquard were found guilty of first-degree murder and armed robbery in connection with her demise. ¹ The jury recommended Abshire's death by a vote of eleven to one and the trial judge imposed the death penalty. ² Abshire, raising eighteen issues, ³ asks this Court to reverse the conviction and vacate the sentence of death. We address issue two, which challenges the discriminatory use of gender-based peremptory challenges under the Equal Protection Clause of the United States Constitution. We find this issue dispositive and dismiss the remaining issues as moot.

During voir dire Mr. Whitson, the assistant state attorney, appeared to be using peremptory challenges to exclude women from the jury solely on the basis of their gender. ⁴ Defense counsel's objection to this behavior resulted in the following colloquy:

Mr. McLeod [defense counsel]: I want to interpose an objection, challenge the peremptories. Given the statement made last time about women, given the systematic exclusion, back strike on women this time, I want to challenge the State to indicate why, on each and every one of the women that they have challenged on a peremptory basis, perhaps to Slappy which I understand and Neil deals with blacks and not women.

....

Mr. McLeod: And I want to make the objection based upon the fact that women, constitutionally, like racial groups and like minorities, are protected areas, and why they are being systematically excluded from this jury.

The Court: Why are they being excluded?

Mr. Whitson: They are not being systematically excluded. We have five women on the jury.

The Court: Well, based upon the rules that I understand are laid down by Slappy, the fact that you have blacks on the jury does not excuse you from systematically excusing other blacks and I don't think there is any question in this case but you're systematically excluding women. You even made that statement that you couldn't get--if you could get anything but police officers and women on this jury, you wouldn't have any problem.

Tell me why you are systematically excluding women.

Mr. Whitson: It's my impression, Judge, from the people that I've asked to have stricken, they tend to be more, more emotional than the other people on the jury that I have not stricken from my view of their answers. Their answers to some of the tougher questions were more equivocal than the remaining people that we've asked to have stay on the jury.

....

The Court: That's not sufficient, but Slappy doesn't apply to women....

Id. at 923-25.

While this case was pending on direct appeal, the United States Supreme Court released an opinion which addressed the issue of gender-based peremptory challenges. We find the following language from that opinion dispositive:

[The] Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the "core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' [gender]."

J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, ----, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89 (1994) (quoting Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986)). ⁵

It has been a decade since we first held that race-based peremptory challenges violate the defendant's right to an impartial jury under article I, section 16 of our state constitution. State v. Neil, 457 So.2d 481, 486 (Fla.1984). More recently, we held that:

[U]nder the tenets of the Equal Protection Clause of the Florida Constitution, jurors should not be rejected solely on the basis of their skin color or their ethnicity. Art. I, Sec. 2, Fla. Const. To satisfy the state's constitutional guarantee of an impartial jury, citizens who are otherwise qualified to serve as impartial jurors cannot be peremptorily challenged based on their membership in a particular ethnic group. Art. I, Sec. 16, Fla. Const.

State v. Alen, 616 So.2d 452, 454 (Fla.1993) (footnote omitted). Today we hold that the Equal Protection Clause of our federal constitution prohibits gender-based peremptory challenges.

Jury service is a privilege accorded all citizens who meet certain qualifications and the right to an impartial jury is granted to every defendant who is entitled to a trial by jury. To extend or restrict this privilege solely on the basis of gender is to foster the sex-based stereotypes that have long impeded the progress of women in our judicial system. We join the Supreme Court of the United States in rejecting the common law's erroneous belief that women should not serve as jurors because of "propter defectum sexus," the defect of sex. J.E.B., --- U.S. at ----, 114 S.Ct. at 1423; United States v. DeGross, 960 F.2d 1433, 1438 (9th Cir.1992). Accordingly, as dictated by J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), we find that the Equal Protection Clause of the federal constitution prohibits gender-based peremptory challenges. In so holding, we extend the procedural safeguards set forth in State v. Johans, 613 So.2d 1319 (Fla.1993), to gender-based peremptory challenges. ⁶

We find that in the instant case, the comments made by the assistant state attorney showed a desire to exclude women from the jury solely because they were women. These comments violated the prospective jurors' and the defendant's right to equal protection. ⁷ The fact that several women were seated as jurors is of no moment, for as we have previously said "number alone is not dispositive, nor even the fact that a member of the minority in question has been seated as a juror or alternate." State v. Slappy, 522 So.2d 18, 21 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); see also Johans, 613 So.2d at 1321 ("A [gender-neutral] justification for a peremptory challenge cannot be inferred merely from circumstances such as the composition of the venire or the jurors ultimately seated.").

We reverse Abshire's convictions for first-degree murder and armed robbery, vacate his sentence of death, and remand for a new trial.

It is so ordered.

GRIMES, C.J., OVERTON, KOGAN and HARDING, JJ., and McDONALD,...