Dorsey v. State

• Decision Date: 18 December 2003
• Docket Number: No. SC02-531.,SC02-531.
• Citation: 868 So.2d 1192
• Parties: Dwayne Curtis DORSEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

868 So.2d 1192

Dwayne Curtis DORSEY, Petitioner, v. STATE of Florida, Respondent.

No. SC02-531.

Supreme Court of Florida.

December 18, 2003.

Rehearing Denied March 12, 2004.

Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Bureau Chief, and

Paulette R. Taylor, Assistant Attorney General, Miami, FL, for Respondent.

PARIENTE, J.

The issue we address in this case is a narrow one: whether a party's observation of a juror's nonverbal behavior may constitute a genuine, race-neutral reason for a peremptory challenge when the purported behavior is challenged by the opposing party and was neither observed by the trial court nor otherwise supported by the record. In the case before us, Dorsey v. State, 806 So.2d 559 (Fla. 3d DCA 2002), the Third District answered this question in the affirmative, concluding that our holding in Melbourne v. State, 679 So.2d 759 (Fla.1996), that the focus in ruling on a challenged strike is the genuineness of the explanation, implicitly overruled Wright v. State, 586 So.2d 1024 (Fla.1991), in which this Court disapproved of peremptory challenges based on a juror's bare looks and gestures that were not observed by the trial judge and confirmed by the judge on the record.¹ We must determine whether this Court's holding in Wright remains valid in light of the Court's subsequent decision in Melbourne.² Because we conclude that Melbourne did not overrule the core holding in Wright that a reason for a challenge based on nonverbal communication must have record support, we quash the Third District's decision to the contrary.

I. FACTS

During jury selection for Dorsey's trial on a charge of resisting an officer with violence, the defense objected to a peremptory challenge exercised by the State:

[PROSECUTOR]: The State would exercise a peremptory challenge on Ms. George. She appeared disinterested throughout. I was looking at her. She was sort of staring at the wall.

[DEFENSE COUNSEL]: Your Honor, we would ask for a race neutral reason one for several reasons—Ms. George has four golds on the bottom—I know that because she smiled the whole time I was up there talking—I also noticed when you were doing voir dire, I also saw that it wasn't that she was disinterested, she listened.

She was very attentive, smiled in a lighthearted manner. She is also African-American. Dwayne Dorsey is African-American.

THE COURT: State is that the only reason?

[PROSECUTOR]: That's the reason. To me, she appeared disinterested. She did not—wasn't listening to anything.

[DEFENSE COUNSEL]: Also, say this—when [defense counsel] asked who was happy to be here on jury duty, [Ms. George] was the only person [to] affirmatively respond she was happy. We are objecting to the State peremptory. It doesn't [appear] to be any reason.

THE COURT: Well, I just must make a finding. It is not contextual [sic]. Her first challenge was against a Hispanic female. Now, we are talking a African-American female. It is not as if she is trying to single out any particular group.

[DEFENSE COUNSEL]: Well, Your Honor especially the test is the genuineness of the reason provided by the State.

THE COURT: Absolutely. And a pattern is not controlling.

[DEFENSE COUNSEL]: Right. And here, because the reason it's been produced by the State and what [the prosecutor] says, her only reason, is simply not supported in the record.

Her statement that the juror is disinterested is affirmatively rebutted by the fact that this is the only juror who actually said she wanted—I'm sorry what she said, she was happy when she got her jury document notice. I mean—

THE COURT: Ms. [prosecutor], I didn't notice it but are you telling me as Officer of the Court that that [lack of interest] was your observation of this juror and that is why you wish to have her excused?

[PROSECUTOR]: Exactly.

THE COURT: I'm going to take [the prosecutor] at her word. I'm going to allow the challenge.

Ms. George did not serve on the jury that found Dorsey guilty as charged. Dorsey asserted in his appeal of the conviction that the trial court erred by permitting the State to exercise the peremptory challenge against Ms. George.

The Third District affirmed, concluding that "[t]he trial judge's assessment of the veracity of the State's reason was not clearly erroneous." Dorsey, 806 So.2d at 563. The district court rejected Dorsey's argument that reversal was mandated by this Court's holding in Wright that "a peremptory challenge based on body language would be unacceptable unless observed by the trial judge and confirmed by the judge on the record." See Dorsey, 806 So.2d at 562

. The Third District determined that "the analysis applicable to such a question has changed" with this Court's subsequent decision in Melbourne v. State, 679 So.2d 759 (Fla.1996). Dorsey, 806 So.2d at 562. In Melbourne, this Court articulated a test for assessing a party's explanation for a peremptory challenge, focusing on the genuineness, rather than the reasonableness, of the explanation. See

679 So.2d at 764.

II. ANALYSIS

The issue in this case arises when a reason offered for a peremptory challenge is based on a juror's nonverbal behavior, such as lack of interest, inattentiveness, or lack of eye contact. In Wright, we characterized this type of nonverbal behavior as "bare looks and gestures." 586 So.2d at 1029. When the reason offered for a peremptory challenge is based on a juror's verbal response to questioning during voir dire, the problem we confront in this case does not occur. The juror's response is not only witnessed by the court but, if there is any doubt about the validity or genuineness of the challenge or its pretextual nature, is also captured by the court reporter and available for the trial court to confirm and the appellate court to review. When the appellate court can discern that the actual responses differ from what was represented to and accepted by the trial court, the court's ruling is reversed. See, e.g., McCarter v. State, 791 So.2d 557, 558 (Fla. 2d DCA 2001)

(holding that trial court erred in finding reason to be valid where it was refuted by transcript of voir dire); Michelin North America, Inc. v. Lovett, 731 So.2d 736, 742 (Fla. 4th DCA 1999) (holding that the denial of a peremptory challenge constituted clear error where the record refuted the implied finding that the reason given for the strike was not genuine); Overstreet v. State, 712 So.2d 1174, 1177 (Fla. 3d DCA 1998) (relying on review of transcript in concluding that the trial court erred in sustaining a peremptory challenge because of a "faulty recollection of the responses given during voir dire").

Like verbal responses to questioning, a juror's lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a strike. However, the question becomes how to determine the genuineness of the reason based on nonverbal communication when opposing counsel challenges the factual basis for the explanation, the trial court does not observe the behavior, and the record does not otherwise support the reason advanced.³ To answer this question, we reexamine Wright in light of our subsequent decision in Melbourne.

To place both Wright and Melbourne into perspective, we briefly review the precedent on which both decisions rest. In State v. Neil, 457 So.2d 481, 486 (Fla. 1984), this Court held that the exercise of a peremptory challenge solely on the basis of race violates the right of both the defendant and the State to trial by an impartial jury under article I, section 16 of the Florida Constitution.⁴ This Court delineated a test for trial courts to use in determining whether the exercise of a peremptory challenge is a pretext for racial discrimination.⁵ Subsequently, the United States Supreme Court, in its landmark decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure." Id. at 85, 106 S.Ct. 1712. Significantly, the Supreme Court stated that the prosecutor could not justify the peremptory challenge

merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections. If these general assertions were accepted as rebutting the defendant's prima facie case, the Equal Protection Clause would be but a vain and illusory requirement.

Id. at 98, 106 S.Ct. 1712 (internal quotation marks, brackets, and citation omitted).

Relying on Batson, this Court modified the test for evaluating peremptory challenges under Neil in State v. Slappy, 522 So.2d 18 (Fla.1988). This Court stated that the test required a "clear and reasonably specific" race-neutral explanation of "legitimate reasons." 522 So.2d at 22 (quoting Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712). The trial court could not "accept the reasons proffered at face value." Instead, the trial court should "evaluate those reasons as he or she would weigh any disputed fact." Id. Under Slappy, the trial court was required to consider two factors in evaluating a proffered reason. The first inquiry was whether the reason was "neutral and reasonable." Id. However, "reasonableness is not enough, since the state also must demonstrate a second factor—record support and the absence of pretext." Id. at 23. The trial court must evaluate both the credibility of the person and the credibility of the asserted reasons. Id. at 22.

In Floyd v. State, 569 So.2d 1225 (Fla. 1990), issued two years after Slappy, this Court emphasized the necessity of record support for a party's explanation of its reasons for exercising a peremptory challenge during an inquiry under Neil and Slappy. In Floyd, we determined that a defense challenge to the trial court's decision upholding a peremptory...