Cruz v. State, 94-1029

Decision Date20 September 1995
Docket NumberNo. 94-1029,94-1029
Citation660 So.2d 792
Parties20 Fla. L. Weekly D2169 Jose CRUZ, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before NESBITT, GERSTEN, and GODERICH, JJ.

NESBITT, Judge.

Jose Cruz appeals his convictions and sentences for armed burglary, armed kidnapping, and two counts of armed robbery. We affirm the convictions but reverse in part for resentencing.

The defendant was arrested and charged with participating in a home invasion robbery. At voir dire, the prosecution stated, "Judge, at this time we would exercise--I mean we would ask the court to inquire regarding the reason for striking Ms.--, what was the last one, Garcia-Kostik. The defense has now strike (sic) four Latin women." The judge then asked the defense counsel why he had stricken this particular juror and found the answer insufficiently race-neutral to allow the peremptory strike to stand. Juror Garcia-Kostik subsequently served on the jury that convicted the defendant.

The appellant argues that the court erred when it disallowed the defense peremptory strike against juror Garcia-Kostik, because the prosecution did not meet the threshold criteria for challenging this peremptory strike by requesting a Neil inquiry. See State v. Neil, 457 So.2d 481 (Fla.1984). We disagree.

Neil inquiries are now governed by the standard set forth in State v. Johans, 613 So.2d 1319 (Fla.1993). Pursuant to Johans, in order to properly invoke a Neil inquiry the objecting party must make a timely objection, and create the fact-supported inference that a peremptory challenge is being used in a racially discriminatory manner. See Johans, 613 So.2d at 1322; Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995) (on motion for clarification granted), reinst. denied, 654 So.2d 169 (Fla. 3d DCA 1995); see also, Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986).

Here, the prosecution created an inference that the peremptory challenge was being used in a racially discriminatory manner by explaining that the defense had already peremptorily struck four Latin women from the venire. The prosecution's objection to the defense peremptory meets the Johans test because the objection was timely, and was substantiated with facts showing the predicate or action which reasonably indicated impermissible use of peremptory strikes against a distinct racial group. The court correctly engaged in a Neil inquiry, and the record reveals that the judge reasonably concluded that the reason given was pretextual.

Furthermore, the record shows that the defense did not at any time object to the prosecution's request for a Neil inquiry, or thereafter to the appointment of juror Garcia-Kostik to the panel, but rather affirmatively accepted the jury panel without any reservation. Acceptance of the jury panel under these circumstances created an abandonment or waiver of any earlier objection the defense could have made to the Neil inquiry before the jury was sworn. See Joiner v. State, 618 So.2d 174 (Fla.1993).

We acknowledge the opinions of Barquin v. State, 654 So.2d 1069 (Fla. 3d DCA 1995), Garcia v. State, 655 So.2d 194 (Fla. 3d DCA 1995), and Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995), but find them factually distinguishable from the case at hand and therefore inapplicable. In Barquin and Portu, the State raised Neil inquiries, but without alleging that the challenge of the particular juror was discriminatory in any manner. In Garcia, the Neil inquiry was properly engaged, but this court, following Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA 1995), found that there was no basis in the record for implying any racial reason for the strike. In contrast to the above-mentioned opinions, the State in the instant case went a crucial step further in its...

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10 cases
  • Pride v. State, 94-1969
    • United States
    • Court of Appeal of Florida (US)
    • December 13, 1995
    ...facts which reasonably indicate the impermissible use of a peremptory strike. Windom v. State, 656 So.2d 432 (Fla.1995); Cruz v. State, 660 So.2d 792 (Fla. 3d DCA 1995); see State v. Neil, 457 So.2d 481 (Fla.1984). The non-challenging party must satisfy each of these prongs for a Neil inqui......
  • Miller v. State, 95-1445
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 1995
    ...(Fla.1995); Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA 1995), review denied, 659 So.2d 272 (Fla.1995); compare Cruz v. State, 660 So.2d 792, 793 (Fla. 3d DCA 1995) ("[I]n order to properly invoke a Neil inquiry the objecting party must make a timely objection, and create the fact-supp......
  • Morrison v. State, 97-2989.
    • United States
    • Court of Appeal of Florida (US)
    • May 19, 1999
    ...jury selection. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993); Portela v. State, 661 So.2d 932 (Fla. 3d DCA 1995); Cruz v. State, 660 So.2d 792 (Fla. 3d DCA 1995); see also Milstein v. Mutual Security Life Ins. Co., 705 So.2d 639, 640 (Fla. 3d DCA 1998).(2) The argument defendant-appel......
  • Holiday v. State, 95-366
    • United States
    • Court of Appeal of Florida (US)
    • December 20, 1995
    ...added). Recently, this court elaborated on the prima facie burden an objecting party must meet to satisfy Johans. In Cruz v. State, 660 So.2d 792 (Fla. 3d DCA 1995), we held that "in order to properly invoke a Neil inquiry the objecting party must make a timely objection, and create the fac......
  • Request a trial to view additional results

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