Andrews v. State

• Decision Date: 27 September 1983
• Docket Number: No. 81-1180,81-1180
• Citation: 438 So.2d 480
• Parties: Oscar L. ANDREWS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 480

438 So.2d 480

Oscar L. ANDREWS, Appellant, v. The STATE of Florida, Appellee.

No. 81-1180.

District Court of Appeal of Florida,

Third District.

Sept. 27, 1983.

Appeal from Circuit Court, Dade County; James C. Henderson, Judge.

Weiner, Robbins, Tunkey & Ross and William R. Tunkey and Geoffrey C. Fleck, Miami, for appellant.

Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and JORGENSON, JJ.

PER CURIAM.

The principal question in this appeal presents the same issue as that framed in Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983). We affirm on the authority of Neil and consistent with that decision certify to the supreme court the following question of great public importance:

Absent the criteria established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), may a party be required to state the basis for the exercise of a peremptory challenge?

We have considered the other issues raised by this appeal and find them to be without merit.

Affirmed. Question certified.

FERGUSON, Judge (specially concurring)

This court in Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983), oblivious to the immediate social impact, has raised the peremptory challenge, a procedural tool without constitutional foundation, see Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), ¹ to a position of such jurisprudential eminence that it now transcends the right of any minority group not to be systematically excluded from participation in the administration of criminal justice--a right which is constitutionally guaranteed. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (systematic exclusion of women from juries is unconstitutional because it violates the sixth amendment's requirement that a jury be chosen from a representative cross section of the community).

Neil is wrong. Swain v. Alabama, contrary to the holding in Neil, is not binding on us because when it was decided in 1965 under the equal protection clause of the fourteenth amendment to the United States Constitution, ² the sixth amendment right to a fair trial by an impartial jury, the relevant constitutional principle relied upon by appellant, had not yet become binding on the states through the fourteenth amendment's due process clause. The sixth amendment right was not incorporated in the fourteenth amendment until three years after Swain, in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). ³ Neither does Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (intermediate appellate courts cannot depart from controlling precedent) require us to abide by Swain v. Alabama because the question has never been addressed by the Florida Supreme Court.

As noted by the Neil court, the Florida Supreme Court has, in two cases, reaffirmed Swain's principles, but those cases do not support the Neil holding. In the first case cited by Neil, Francis v. State, 413 So.2d 1175 (Fla.1982), the issue was whether the defendant's involuntary absence from the courtroom during the exercise of peremptory challenges was fundamentally unfair. The Florida Supreme Court cited Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894) and Lewis v United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), cases relied upon in Swain v. Alabama, merely as authority for the principle that the peremptory challenge is one of the most important rights secured to a defendant. In Dobbert v. State, 409 So.2d 1053 (Fla.1982), the issue before the court was whether the systematic exercise by a prosecutor of peremptory challenges to exclude persons who had scruples against imposition of the death penalty was violative of the defendant's right to due process or his sixth amendment right to an impartial jury. The court, in rejecting appellant's "attempted synthesis of Swain v. Alabama," noted that there is nothing to indicate that the United States Supreme Court would extend the Swain principle--which places limitations on the prosecutor's exercise of the peremptory challenge to systematically exclude on racial grounds--to systematic exclusions based on ideology, such as jurors' scruples against imposition of the death penalty. The court expressly stated that it would not resolve the issue whether Swain applied to that type of case. Dobbert, 409 So.2d at 1057. It is elementary in the law that a case is only authority for what it actually decides, and what may seem to flow logically from it is not binding precedent. Stickney v. Belcher Yacht, Inc., 424 So.2d 962, 966 n. 4 (Fla. 3d DCA 1983).

The Neil court recognizes that the issue it certifies to the supreme court is "particularly troublesome" but then thinks itself paralyzed by precedent. Indeed, that is not the case for the reasons already stated. To call the issue "troublesome" is a myopic understatement. It has been increasingly a "burning" issue in the community. ⁴ A judge visiting from another circuit expressed mild outrage about, and banned as blatant, the Dade County practice of systematically excluding blacks by use of the peremptory challenge. ⁵ Other fair-minded judges in this district have adopted in principle the Wheeler-Soares procedure. For example, in Cotes v. State, 437 So.2d 178 (Fla. 3d DCA 1983), the trial judge conducted a separate hearing during which the prosecutor was required to explain why the exercise of peremptory challenges had resulted in the removal of all blacks seated as prospective jurors. Armed with Neil v. State, the attorney general challenged the court's action by cross-appeal, abandoning the state attorney's "we don't discriminate on the basis of race" argument in favor of "we may do so with impunity."

Because discriminatory use of the peremptory challenge is court protected, other institutions have been turned to for solutions. ⁶ Now, with the untimely decision in Neil v. State, a threat exists that the efforts of some trial judges and community institutions to halt the invidious practice may unravel. Most distressing of all is that the court in Neil v. State rejected the invitation extended to state courts by the United States Supreme Court in McCray v. New York, ⁷ to independently examine and decide the issue presented to the Court. ⁸ That invitation may be interpreted as a concession by the majority of the Court, creator of the monster Swain, that Swain is an anachronism.

Neil v. State is, in my opinion, a "bail-out" on a thorny constitutional question, but I am, by rules of this court, obligated to adhere to it. That this court is powerless to address the question is simply inaccurate. That it has to, even if incidentally, assume an obstructionist role with respect to the problem-solving efforts of community institutions is disconcerting. This simply is not, nor has it ever been the nature of the judicial process. Judicial lawmaking is aptly described by an eminent jurist:

[L]ogic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that the law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness.... The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey. ⁹

The mischievous misuse which caused the peremptory challenge to first fall into disuse in England in the year 1305 is just as rampant in this district today. ¹⁰ The "social interest", as well as the welfare of a tarnished judicial system, compels this court to seize the opportunity to stake a new course. Adoption of the Wheeler-Soares principle is that new course; it is also a reasonable way to restore some credibility to the system while at the same time salvaging the peremptory challenge. A majority of this court opts instead for the status quo. For this reason my concurrence is with total disappointment.

1 The state's peremptory challenge developed in England before that of the defendant's, and prior to 1305 the state had unlimited use of such challenges. Since the unlimited right proved to be "mischievous to the subject, tending to infinite delays and danger," it was discontinued in 1305. In the seventeenth century, a substitute for the prosecution's peremptory challenge was instituted as the so-called right to "stand aside." The defendant's right to peremptory challenge became firmly established by the fifteenth century at the latest. Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157, 1170-1172 (1966). The peremptory challenge has fallen into disuse in England. Swain v. Alabama, 380 U.S. at 218, 85 S.Ct. at 834. Nonetheless, even those who are critical of its misuse, including this writer, do not suggest that it should be abolished. The position embraced by the majority in Neil --that judicial scrutiny of peremptory challenges signals its demise--is needlessly alarmist. A prima facie showing of abuse of the process is a prerequisite to any judicial inquiry as to its use.

2 Both California, in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) and Massachusetts, in 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), have rejected the standard set forth in Swain v. Alabama in favor of a more realistic test for...