Betancourt v. State, 94-1095

• Court: Court of Appeal of Florida (US)
• Citation: 650 So.2d 1021
• Docket Number: No. 94-1095,94-1095
• Parties: 20 Fla. L. Weekly D212 . The STATE of Florida, Appellee. District Court of Appeal of Florida, Third District
• Decision Date: 18 January 1995

Page 1021

650 So.2d 1021 20 Fla. L. Weekly D212 Juan BETANCOURT, Appellant,
v.
The STATE of Florida, Appellee. No. 94-1095. District Court of Appeal of Florida,
Third District. Jan. 18, 1995.

Page 1022

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Consuelo Maingot, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.

SCHWARTZ, Chief Judge.

Regretfully, we must reverse multiple convictions for serious offenses which followed a lengthy and otherwise spotless trial because, based on a misguided application of Batson- Neil ¹ principles, the trial judge erroneously refused to permit the exercise of a defense peremptory challenge.

The defendant is a Hispanic male who was charged with participating in the armed invasion of a well-known restaurant in Miami in which several customers and employees were robbed and a patron was shot and killed. One of his claims in defense was that he was coerced into the crime by his accomplices. In voir dire, a Hispanic prospective juror named Miguel Garcia stated that he had been the foreman of a previous criminal jury which had not reached a verdict in the case. After the defendant attempted to exercise a peremptory challenge against him, and in response to a demand by the prosecutor and court that he state a "race-neutral reason" for the strike, ² defense counsel relied upon the fact that Garcia

indicated to me that he had been a foreman on a jury before.

He indicated to me that he was a person who was a leader and a person who I would not want on my jury.

The trial judge disallowed the challenge and Garcia served on the jury which convicted Betancourt of, among other things, first degree murder, attempted first degree murder, armed burglary and five counts of armed robbery.

Page 1023

I.

Our holding that overruling the attempted strike of Garcia was reversible error is essentially based upon the fact that there is no basis whatever for concluding that the challenge involved the evil proscribed by the Batson- Neil ³ rule; that is, that it was based on a "constitutionally impermissible prejudice," State v. Slappy, 522 So.2d 18, 20 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), or racially motivated in any way. In this case, the Hispanic defendant challenged a Hispanic prospective juror. On the face of it--and there is nothing in the record to suggest otherwise--there would seem no basis for even implying a racial reason for Betancourt's not wanting Garcia to serve on his jury. See Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995). In this respect, the case is decisively unlike the overwhelming majority of cases--if not every case--in which a peremptory challenge has been disallowed under Batson and Neil. Typically--if not invariably--they involve situations in which the prospective juror belongs to a group whose general characteristics would seem to be adverse to the position of the challenger. E.g., J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (defendant's challenge to female juror in paternity action); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (prosecution's challenge to black juror in case with black defendant); Slappy, 522 So.2d at 18 (same); State v. Neil, 457 So.2d 481 (Fla.1984) (same); Abshire v. State, 642 So.2d 542 (Fla.1994) (state's challenge to exclude women with male defendant); State v. Alen, 616 So.2d 452 (Fla.1993) (prosecution's challenge to Hispanic juror in case with Hispanic defendant); Joseph v. State, 636 So.2d 777 (Fla. 3d DCA 1994) (state's challenge of Jewish venireperson in case with Jewish defendant). When, as here, there is no reason in common sense, legal intuition or the record to overcome "the presumption that peremptories will be exercised in a non-discriminatory manner," Neil, 457...