Andrews v. State

• Decision Date: 08 December 1983
• Docket Number: No. 60584,60584
• Citation: 443 So.2d 78
• Parties: Lucious ANDREWS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 78

443 So.2d 78

Lucious ANDREWS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 60584.

Supreme Court of Florida.

Dec. 8, 1983.

Michael E. Allen, Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from a final judgment of the Circuit Court of Leon County imposing the death penalty. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The offense was sexual battery upon a person under the age of eleven years by a person eighteen or more years of age. § 794.011(2), Fla.Stat. (1979). For the following reason, we reverse appellant's conviction and vacate the sentence which has been imposed upon him.

The victim testified in court as follows: Appellant was asked by the victim, Quinezett Bryant, aged eight, to take her to the store one evening. Appellant drove the victim to the store and purchased popcorn and bubble gum for her. He then drove her home and parked his car in front of the victim's house. Allegedly, appellant pushed the victim down in the seat of the car, pushed her panties aside, and attempted to insert his penis into her anus. She suffered pain in the anal area due to three small tears in the anal tissue. Appellant then discontinued the attempt at penetration. The victim's sister, Tonya, came out to the car looking for her sister and told her to go inside the house. The victim went to the bathroom and "felt something come out." She didn't know what it was but it was white; she flushed it down the toilet. The victim then washed her panties and went to sleep.

The next morning, the victim's mother questioned the girl about her outing from the house and learned of the sexual battery. The victim was taken to the hospital where an examination found three shallow or superficial lacerations around the anus. Medical swabs were also taken of the anal area and these were later determined to contain some amounts of blood but no semen. Chemical testing of the victim's panties, gown and robe revealed no semen present.

Jury trial commenced on April 7, 1981. The state's witnesses were the victim, her sister, the emergency room physician, the investigating officer, a forensic serologist, and the victim's mother. Appellant's witnesses were a sheriff's deputy, a state's attorney investigator, a lab technician, the victim's father, the victim's mother, three character witnesses, and the appellant.

On April 8, 1981, the jury returned a verdict of guilty of the offense charged.

On April 30, 1981, the sentencing phase was conducted. The state presented no additional evidence and said it was not seeking the death penalty. Appellant called several character witnesses as well as the victim's mother in mitigation. The jury recommended life imprisonment as a sentence. The jury foreman made a statement to the court that the jury unanimously felt that even the life sentence "is more severe than the particular circumstances involved in this case." Immediately thereafter, the trial judge overrode the jury's recommendation and imposed a sentence of death.

I

Andrews, who is black, initially contends that the trial court erred in denying his motion to dismiss the indictment against him, which motion alleged that black citizens of Leon County had been systematically excluded from serving as grand jury foremen. He does not challenge the racial composition of the grand juries empaneled in Leon County.

First, applying the principles announced by the Supreme Court in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and reaffirmed as they apply to the selection of a Tennessee grand jury foreman in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), we find that the trial court correctly denied Andrews' motion to dismiss.

In Rose the Supreme Court held that in order to show that an equal protection violation has occurred in the context of grand jury foremen selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The Court then said that a defendant was required to prove a prima facie case of discrimination in the selection of a grand jury foreman as follows:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time.... This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class.... Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. [Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280.]

443 U.S. at 565, 99 S.Ct. at 3005. Only after the defendant in this manner establishes a prima facie case of discrimination does the burden shift to the state to rebut that prima facie case.

Assuming, for the purposes of analysis only, that Andrews established that he is a member of a group recognizable as a distinct class capable of being singled out for different treatment under the laws, that the selection procedure is susceptible of abuse, and that there has been a degree of underrepresentation of blacks as grand jury foremen over a significant period of time, this would establish a prima facie case of discrimination under the Rose test, and the burden would shift to the state to rebut the presumption of discrimination.

The state then would have the burden of showing that racially neutral selection procedures produced the disparity established by Andrews. In its order denying the motion to dismiss, the trial court found that:

Every circuit judge involved with the selection of grand jury foremen in Leon County during the critical period, who testified, gave the specific criteria he used in selecting a grand jury foreman. Each denied that race was one of these criteria. Leadership and ability to preside over the deliberations seem to be the most common and persuasive criteria used.

In an analogous case, the United States Court of Appeals, Eleventh Circuit, in United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982), addressed the issue of alleged discrimination in the Southern District of Florida in the selection of a federal grand jury foreman where the defendant had made a prima facie case of discrimination. It reiterated the principles announced in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970), that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case and that denial of a discriminatory intent will not suffice. It held, however, that the government had rebutted the defendant's case of discrimination. In reaching this conclusion, the Eleventh Circuit stated:

The government's rebuttal case below consisted entirely of testimony from eight district judges involved in the foreman selection process for the years in question. Each judge testified that he acted independently of the other judges in choosing a grand jury foreman, although each employed similar guidelines in making a selection. These guidelines generally consisted of four separate factors: (1) occupation and work history; (2) leadership and management experiences; (3) length of time in the community; and (4) attentiveness during the jury empanelment. These factors directly relate to the ability to perform the administrative functions and duties of a grand jury foreman. This is not then a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position.... We can think of no better criteria for determining which grand jury member is best able to serve as foreman.

672 F.2d at 1387-88 (footnotes omitted) (citation omitted). The criteria used by the federal judges in the Southern District of Florida were for the most part the same ones used by the circuit judges in Leon County in selecting grand jury foremen. As was the case in Perez-Hernandez, the record in the present case does not show that these judges abused their discretion by selecting foremen without regard to their stated criteria or by excluding equally qualified blacks.

The Eleventh Circuit also reached the same result in a case from the Northern District of Florida. United States v. Holman, 680 F.2d 1340 (11th Cir.1982). In that case the defendants sought reversal because of alleged discrimination in selection of the grand jury foreperson. During the relevant period from 1969 to 1979, only one black female was appointed to that position in the Northern District of Florida. Circuit Judge Hatchett of the Eleventh Circuit, who was sitting by designation as the trial judge, denied the defendants' motion to dismiss the indictment. Finding that a prima facie case of discrimination had been established, Judge Hatchett nevertheless concluded that the government had met its burden of rebutting the defendants' case. United States v. Holman, 510 F.Supp. 1175 (N.D.Fla.1981). On appeal, the Eleventh Circuit, accepting Judge Hatchett's conclusion that a prima facie case had been made, affirmed his ruling that it was rebutted by the government's proof of a lack of discriminatory intent. In reaching this decision, the court said: "Both judges of the Northern District of Florida who testified at the hearing and in deposition asserted that their selections were rendered with no view to the jurors' race or sex; Judge Stafford stated that he was unaware that the jurors' race was even indicated on...