Bellamy v. Crosby

• Decision Date: 25 March 2010
• Docket Number: No. 1D08-4471.,1D08-4471.
• Parties: Timothy L. BELLAMY, Appellant, v. James V. CROSBY, James R. McDonough, Walter A. McNeil, Secretary, Florida Department of Corrections, Appellees.
• Court: Florida District Court of Appeals

31 So.3d 895

Timothy L. BELLAMY, Appellant, v. James V. CROSBY, James R. McDonough, Walter A. McNeil, Secretary, Florida Department of Corrections, Appellees.

No. 1D08-4471.

District Court of Appeal of Florida, First District.

March 25, 2010.

Timothy L. Bellamy, pro se, Appellant; Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Charmaine Millsaps, Assistant General Counsel, Trisha Meggs Pate, Assistant Attorney General, and Charlie McCoy, Senior Assistant General Counsel, Office of the Attorney General, Tallahassee; Kathleen Von Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellees.

PER CURIAM.

This case reaches us after the United States District Court for the Northern District of Florida granted the defendant's petition for habeas corpus in part and ordered a new direct appeal from his criminal conviction in the state circuit court. We conclude that the defendant is entitled to a new trial, because the trial court committed reversible error by failing to determine whether the state's purported race-neutral reasons for striking two jurors during voir dire were genuine or a pretext.

Timothy Bellamy was charged with one count of burglary of a dwelling with an assault, one count of armed robbery with a firearm, and one count of aggravated battery with a deadly weapon. The charges arose out of a home invasion robbery in 1999 in Jefferson County. The defendant is a black male, and the two victims were white.

At jury selection, the defendant objected to a number of the state's peremptory challenges to various jurors. The challenges to two potential jurors, named Branham and Blow, are involved in the present appeal. Both Branham and Blow were black. Defense counsel objected to the state's peremptory challenge to these individuals, based on Neil v. State, 457 So.2d 481 (Fla.1984), but the trial court overruled both objections and allowed the state to strike the jurors.

Ms. Blow revealed during voir dire that three of her children and three of her grandchildren had been robbed in Leon County. When asked whether she thought that this would impact her ability to be a fair and impartial juror, she replied, "No." Later, the following exchange occurred:

PROSECUTOR: We excuse Blow.

DEFENSE COUNSEL: We are going to make a Neil challenge again.

PROSECUTOR: Children were victims of a robbery.

DEFENSE COUNSEL: How does that hurt your case?

PROSECUTOR: It is not a function of what it hurts or not.

DEFENSE COUNSEL: That is a pretext.

STATE: It is not a pretext.

DEFENSE COUNSEL: ... Let me make it clear that Barbara Blow was black, potential juror Bassa was black, potential juror Willie Roberts was black, Edward Bellamy is black.... I am just putting on the record here that you have excused every black that's been on this jury.

THE COURT: ... He has not.... Prospective juror Cuyler is on the jury, and Huggins is on the jury.

Questioning of Ms. Branham by the prosecutor revealed that she was a senior technician with the Florida Department of Corrections. She further stated that she worked in the main office of the DOC in Tallahassee and that her main responsibility was incorporating sentences with the sentence an inmate had already served. When asked whether there was anything about her employment that would affect her ability to be fair and impartial, Branham replied, "No." The following exchange subsequently took place when Branham was included in the group of potential jurors from which the jury was being chosen:

PROSECUTOR: We would strike Ms. Branham, number two....

DEFENSE COUNSEL: We will make another Neil challenge on Ms. Branham.

PROSECUTOR: She works for the Department of Corrections. And as it says here, friends can be enemies. That's what we learned at the seminar. Don't necessarily assume—

DEFENSE COUNSEL: She is another black female.

Once the jury was selected but before it was sworn, defense counsel moved for a new trial, asking that the entire jury be dismantled and a new jury be chosen. The motion was based on the defendant's Neil challenges to the black jurors, including Branham and Blow, on whom he asserted the state had improperly used peremptory strikes. The trial court denied the motion, stating, "I have heard all of the Neil challenges that have been made, and there have been race neutral reasons given for the challenges. And the state has not challenged solely African-American prospective jurors but has challenged some Caucasians also."

The jury was then sworn, and the trial commenced. At the conclusion of the trial, the defendant was found guilty of one count of burglary of a dwelling with an assault, one count of armed robbery with a firearm, and one count of the lesser included offense of battery. The trial court sentenced him to consecutive life sentences on the burglary and robbery counts.

The defendant appealed his conviction and sentences to this Court, raising one issue: whether the trial court improperly limited cross-examination of the cooperating codefendant, who had received a six-year sentence. We affirmed without written opinion on August 13, 2002. See Bellamy v. State, 825 So.2d 370 (Fla. 1st DCA 2002).

The defendant then filed a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel. He argued that his appellate attorney was ineffective for failing to raise claims based on the state's improper peremptory challenges of black jurors during voir dire. We denied the petition. See Bellamy v. State, 843 So.2d 261 (Fla. 1st DCA 2003). Then the defendant filed a rule 3.850 postconviction motion in the trial court, raising multiple claims of ineffective assistance of counsel. The trial court summarily denied the motion on March 8, 2004, and we affirmed the denial on January 10, 2005. See Bellamy v. State, 894 So.2d 245 (Fla. 1st DCA 2005).

On May 31, 2005, the defendant filed a petition for writ of habeas corpus in the United States Court for the Northern District of Florida, raising, inter alia, the issue of the peremptory challenges to Branham and Blow. The magistrate judge issued a written order and recommendation, finding that the defendant was entitled to relief. She determined that the trial court had not evaluated the state's facially race-neutral responses to the defendant's Neil claims or made a determination whether there was purposeful discrimination, as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Further, the magistrate found that the defendant's appellate counsel was ineffective for failing to raise the Batson issues on appeal and that these issues would have succeeded on appeal. Based on these findings, the magistrate recommended that the defendant receive a new trial.

After reviewing the magistrate's recommendation and the exceptions the parties filed thereto, the senior district judge issued an order granting the writ of habeas corpus as to the Batson issues regarding jurors Blow and Branham. However, he rejected the magistrate's recommendation of a new trial and ordered instead that the defendant be allowed to file a new appeal in this court. The case is now before us on a new direct appeal from the state court judgment and sentence, as ordered by the federal habeas court.

When a party objects to a peremptory challenge as being based on race, the test for determining whether the challenge is valid was established by the U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As the Florida Supreme Court explained in Melbourne v. State, 679 So.2d 759 (Fla.1996), the analysis has three steps.

A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Melbourne, 679 So.2d at 764 (footnotes omitted); see also Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834, reh'g denied, 515 U.S. 1170, 115 S.Ct. 2635, 132 L.Ed.2d 874 (1995); Hoskins v. State, 965 So.2d 1, 7 (Fla.2007).

The court in Melbourne explained that genuineness means whether the strike was based on purposeful discrimination. Once the proponent of the strike offers a race-neutral reason, the court must proceed to the genuineness determination in step three. It may not skip step three or conflate it with step two. While the justification for the strike need not be plausible on its face, if it is race-neutral, the court must go on to evaluate the persuasiveness of the reason in the genuineness determination of step three.

It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly

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