Alen v. State

• Decision Date: 03 March 1992
• Docket Number: No. 90-1,90-1
• Citation: Alen v. State, 596 So.2d 1083 (Fla. App. 1992)
• Parties: 17 Fla. L. Weekly D622 Ramon ALEN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1083

596 So.2d 1083

17 Fla. L. Weekly D622

Ramon ALEN, Appellant, v.The STATE of Florida, Appellee.

No. 90-1.

District Court of Appeal of Florida Third District.

March 3, 1992.

Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ.

NESBITT, Judge.

Following briefing and oral argument en banc, this court was confronted with the unsettled issue whether Hispanics constitute a cognizable group within this community so as to entitle a defendant, pursuant to article I, section 16 of the Florida Constitution, to dispute the state's use of a peremptory challenge against an Hispanic juror when the challenge is alleged to have been made solely on the basis of the juror's ethnicity.Shortly after oral argument, the United States Supreme Court issued opinions in two cases, Powers v. Ohio, --- U.S. ----, 111 S.Ct. 1364, 113 L.Ed.2d 411(1991), andHernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395(1991), which require this court to broaden the scope of our analysis in deciding the case before us to include federal constitution equal protection considerations.Accordingly, for the reasons which follow, we conclude that under either state or federal constitutional analysis, the defendant must be awarded a new trial because of the state's improper use of a peremptory challenge to exclude an Hispanic juror.

Relevant Facts of This Case

The defendant was charged with robbery.When, during jury selection, the state attempted to peremptorily strike two prospective Hispanic jurors, ¹the defendant objected, claiming the state was using the challenges in a discriminatory manner in violation of State v. Neil, 457 So.2d 481(Fla.1984).²The trial court ordered an inquiry to determine the likelihood of discrimination.The state claimed that it excluded the first Hispanic juror because she appeared uninterested and disgusted with the proceedings.The state admitted having difficulty expressing a reason for striking the second Hispanic juror.The trial court allowed the state to strike these two jurors, holding that the strike of the uninterested juror was nondiscriminatory.The strike of the second juror was held to be nondiscriminatory because it was done in order to reach another Hispanic juror who the state claimed was more acceptable.The defendant was ultimately convicted of robbery.On appeal, the state counters the defendant's claim of a Neil violation with the assertion that, while Neil may apply to groups other than racial groups, Hispanics do not constitute a distinct, cognizable group for Neil purposes.

Analysis on State Constitutional Grounds

In Neil, the Supreme Court of Florida held that under article I, section 16 of the Florida Constitution, a defendant is entitled to an impartial jury where no juror has been excluded solely on the basis of his or her race.Neil dealt with the improper use of peremptory challenges to exclude black jurors, and the supreme court chose to limit the impact of its holding solely to race.The court stated, "The applicability to other groups will be left open and will be determined as such cases arise."457 So.2d at 487.

While no Florida case since Neil has broadened the scope of that case's applicability to include cognizable groups other than racial groups, two of the three cases from other states upon which the supreme court relied in Neil did not limit their application to racial categorizations, but also identified other "cognizable groups", including ethnic groups.Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110(1979);People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748(1978).SeeNeilat 487.In the instant case, however, the state contends that Hispanics are not a cognizable ethnic group for purposes of insuring that they are not discriminatorily challenged based on group affiliation in violation of the defendant's impartial jury rights.

Whether or not a group is cognizable is a question of fact.Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866(1954).See generallyFields v. People, 732 P.2d 1145(Colo.1987)(for a discussion of group cognizability and the right to an impartial jury).Generally speaking, an ethnic group can be identified on the basis of its members sharing certain identifiable traits including religious, linguistic, ancestral, or physical characteristics.The American Heritage Dictionary 450 (1973).Hispanics' identification as an ethnic group has been based on both ancestral characteristics, often typified by surname, e.g., People v. Trevino, 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719(1985);Fields, 732 P.2d at 1145, and linguistic traits, the common native language being Spanish.SeeHernandez v. New York, supra.

Clearly, the community which embraces the circuit where this defendant was tried recognizes Hispanics as a cognizable ethnic group based upon classifications developed within the community itself which have been widely used for survey, polling, and other categorization purposes.According to 1990 United States Census data, the Dade County population is identified as 49.2 percent Hispanic.(The Census uses the term "Spanish origin.")Over 28 percent of Dade County's registered voters are categorized as Hispanic.Moreover, local media, as well as marketing surveys, consistently recognize Hispanics as an identifiable and distinct group in our community.SeeTrevino, 217 Cal.Rptr. at 661, 704 P.2d at 728("Governmental categorization ... signifies more than simple utility in statistical compilation [but] a broader understanding that individuals bearing [Spanish][sur]names represent a discrete segment of the population based on ethnic commonality.").Accordingly, we hold that Hispanics are a cognizable ethnic group within this community for purposes of the application of Neil principles.

Analysis on Federal Constitutional Grounds

In Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905(1990), the United States Supreme Court held that the federal constitution's Sixth Amendment right to an impartial jury, the federal equivalent to the Florida Constitution's article I, section 16, does not prohibit the use of peremptory challenges on the basis of race.The Court instead has held that the prohibition has its source in the Equal Protection Clause to the Fourteenth Amendment to the federal constitution.SeePowers v. Ohio, supra;Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).Both Powers and Batson dealt with the use of peremptory challenges against black jurors.However, in Hernandez v. New York, supra, the Court addressed the discriminatory use of such challenges against Hispanics.The Court held that under the Equal Protection Clause, Hispanics cannot be peremptorily challenged on the basis of their race or ethnicity.

Consequently, in accordance with Hernandez v. New York, we hold that pursuant to the Equal Protection Clause of the United States Constitution, Hispanic jurors may not be peremptorily challenged solely on the basis of their ethnicity.

Application of Analysis

Applying the foregoing state and federal constitutional analysis to the facts of this case, the peremptory challenge of the first juror was based upon acceptably neutral grounds.The state's use of the ethnically motivated strike against the second juror, however, was constitutionally forbidden, seeJefferson v. State, 595 So.2d 38(Fla.1992);Smith v. State, 574 So.2d 1195(Fla. 3d DCA1991), aff'd on other grounds, State v. Washington, 594 So.2d 291(Fla.1992), and could not be made acceptable even though it was done to reach another Hispanic juror who ultimately served as an alternate.SeeState v. Slappy, 522 So.2d 18, 21(Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909(1988).Accordingly, the trial court erred in permitting the state to strike the second Hispanic juror.

We therefore reverse the defendant's conviction and direct that he be awarded a new trial.

SCHWARTZ, C.J., and BARKDULL, BASKIN, FERGUSON, JORGENSON, COPE, LEVY and GODERICH, JJ., concur.

HUBBART, Judge (concurring).

By today's decision, the court extends the rule of State v. Neil, 457 So.2d 481(Fla.1984), to Hispanic Americans, concludes that the state had no ethnic-neutral reason for exercising a peremptory challenge below against a prospective Hispanic juror, and reverses the conviction under review for a new trial.Although I entirely agree with this decision for the reasons stated in the court's opinion, I think it marks the beginning of the end of the unfettered use of the peremptory challenge in this state.In my view, Neil will inevitably have to be extended in future cases so as to prohibit all forms of invidious discrimination in the use of the peremptory challenge--whether based on race, ethnic origin, nationality, gender, religion, wealth, or age--which of necessity will require an explanation for the exercise of most peremptory challenges.This result, when it comes, will, in my view, sound the death knell for the peremptory challenge system as we know it.

Rather than engage in a prolonged case-by-case strangulation of the peremptory challenge over a period of many years which in the end will effectively eviscerate the peremptory challenge or, at best, result in a convoluted and unpredictable system of jury selection enormously difficult to administer--I think the time has come, as Mr. Justice Marshall has urged, to abolish the peremptory challenge as inherently discriminatory.SeeBatson v. Kentucky, 476 U.S. 79, 107-08, 106 S.Ct. 1712, 1728-29, 90 L.Ed.2d 69, 94-95(1986)(Marshall, J., concurring).I would, however, attempt to salvage the best of the...