Elliott v. State, 90-3149

• Decision Date: 13 December 1991
• Docket Number: No. 90-3149,90-3149
• Citation: 591 So.2d 981
• Parties: Andrew Anthony ELLIOTT, Appellant, v. STATE of Florida, Appellee. 591 So.2d 981, 16 Fla. L. Week. D3098
• Court: Florida District Court of Appeals

Page 981

591 So.2d 981

Andrew Anthony ELLIOTT, Appellant, v. STATE of Florida, Appellee.

No. 90-3149.

591 So.2d 981, 16 Fla. L. Week. D3098

District Court of Appeal of Florida First District.

Dec. 13, 1991.

Nancy A. Daniels, Public Defender, Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., and Wendy S. Morris, Certified Legal Intern, Tallahassee, for appellee.

WIGGINTON, Judge.

As a result of the rule established in State v. Neil, 457 So.2d 481 (Fla.1984), it was foreseen that a defendant "would not be able to peremptorily challenge white jurors solely for the purpose of increasing the number of blacks on his jury." 457 So.2d at 489 (Alderman, J., dissenting). Five years later, the decision in Kibler v. State, 546 So.2d 710 (Fla.1989), prompted then Chief Justice Ehrlich, in his dissenting opinion, to express his apprehension that despite the court's "best efforts, racial discrimination in jury selection may not be completely eliminated by placing Neil restrictions on the use of peremptory challenges.... As a matter of fact, white jurors may still be challenged peremptorily on a racial basis." 546 So.2d 710. Such foreshadowings have become manifest and the inevitable has transpired. During the selection of the jury prior to appellant Andrew Elliott's trial for aggravated assault on a law enforcement officer with a firearm and for carrying a concealed firearm, the state objected to what appeared to be a systematic challenge of adult white males by Elliott's defense counsel. Without ruling on the record whether that objection made a prima facie case sufficient to shift the burden to the defense, the trial court immediately required the defense counsel to state his reasons for striking the three individuals. Finding counsel's reasons "vague and nebulous" and insufficient, the trial court denied his challenge of one of the jurors and seated him on the jury. ¹ On appeal, appellant challenges the trial court's ruling in that regard, and, because we agree ultimately with his prayer for relief, we reverse this cause and remand for a new trial.

In arguing that the trial court erred in denying defense counsel's peremptory strikes against three white male jurors appellant initially submits that the court wrongly assumed that a Neil inquiry applies to the peremptory challenge of white jurors. Recognizing that the supreme court decided Neil with a history of black discrimination in mind, appellant posits that the Neil test assumes that blacks are in the minority in jury pools. Thus, in his opinion, the concerns in a "traditional" Neil case are rarely the same as those concerns at issue when a prosecutor alleges that white male jurors are subject to discrimination. Appellant goes on to reason that applying Neil to the exclusion of white jurors when whites compose the majority on a jury pool is senseless. Thus, when a party alleges that whites are being excluded in a discriminatory manner, the complaining party should also demonstrate that whites compose a minority of the jury pool.

As authority for his theory, appellant cites several supreme court cases following Neil that utilize "minority" language in their decisions. See e.g., State v. Slappy, 522 So.2d 18 (Fla.1988); and Reynolds v. State, 576 So.2d 1300 (Fla.1991). Nevertheless, although we agree with appellant that the burden may be greater on the complaining party to establish racial motivation when Neil is used to protect white jurors, we disagree fundamentally with appellant's position that Neil does not apply to white jurors unless they are in the minority of the jury venire. ²

In Neil and, later, in State v. Slappy, the supreme court was careful to clarify its position on invidious discrimination in the jury selection process. Thus, in Neil's opening paragraph, the court asserted its belief "that it is time in Florida to hold that jurors should be selected on the basis of their individual characteristics and that they should not be subject to being rejected solely because of the color of their skin...." 457 So.2d at 482. Next, in State v. Slappy, the court made the following observation:

The need to protect against bias is particularly pressing in the selection of a jury, first, because the parties before the court are entitled to be judged by a fair cross-section of the community, and second, because our citizens cannot be precluded improperly from jury service.

522 So.2d at 20 (emphasis added). Although subsequent language in Slappy might suggest that the court was narrowing its focus to minority members on the jury, we conclude that the term "minority" was used in the context in which the challenge arose. In subsequent cases, the "minority" status of the challenged juror or jurors was simply viewed as a factor to be considered in whether the burden of proof of the complaining party should be shifted to the challenging party to give non-racial reasons for the peremptory strikes, and was never cited as a prerequisite for the bringing of a Neil challenge in the first instance. For example, in Reynolds v. State, the supreme court noted that in the companion case to Slappy, Blackshear v. State, 521 So.2d 1083 (Fla.1988), the court confronted a situation in which the prosecutor peremptorily excused all eight members of a minority. There, the court stated that "excusal of all the minority members was sufficient to shift the burden of proof to the state once the defense had made its objection under Neil." Reynolds, 576 So.2d at 1301 (emphasis added). Following that observation, the court in Reynolds went on to reemphasize a point made earlier in Slappy that a peremptory challenge "is uniquely suited as a tool to mask true motives." Id. However, the court further observed that "this mask becomes especially opaque when a peremptory strike eliminates the only minority venire member available for jury service." Id. The issue in Reynolds was whether the defense had made a prima facie showing of racial motivation in order to shift the burden to the state. The minority status of the prospective jurors clearly was a consideration in determining whether a prima facie showing had been made.

That the issue is not one of minority status alone is also seen in the analysis in Kibler v. State, 546 So.2d 710 (Fla.1989), wherein the supreme court examined the issue of whether a white defendant may object to peremptory challenges directed by the state to black potential jurors. The supreme court's resolution of that issue in favor of the challenge was not predicated solely on the minority status of the juror or on the color of the skin of the defendant. Rather, the supreme court held:

... that under article I, section 16 of the Florida Constitution it is unnecessary that the defendant who objects to peremptory challenges directed to members of a cognizable racial group be of the same race as the jurors who are being challenged. This does not mean, however, that the respective races of the challenged jurors and of the person who objects to the challenges may not be relevant in the determination of whether the challenges are being unconstitutionally exercised because of group bias. Under the procedure prescribed by Neil, the objecting party must ordinarily do more than simply show that several members of a cognizable racial group have been challenged in order to meet his initial burden. Thus, a defendant of a different race than the jurors being challenged may have more difficulty convincing the trial court that "there is a strong likelihood that they have been challenged only because of their race." Moreover, in those cases in which the inquiry has been directed to the challenging party, the respective races of the challenged jurors and the defendant may also be relevant in the determination of whether the challenging party has met the burden of showing that the challenges were made for reasons not solely related to race.

546 So.2d at 712 (emphasis added).

Thus, the minority or majority status of the challenged jurors and of the complaining party, or, for that matter, their respective races, do not establish the threshold requirements for a Neil challenge but rather are relevant factors to be considered in the overall inquiry of whether there is a racially motivated peremptory strike of a cognizable racial group. The fact that the supreme court has consistently utilized the general phrase, "cognizable racial group," undoubtedly shows that it is leaving open, as foreshadowed in the dissenting opinions quoted above, the opportunity of a complaining party to object to peremptory strikes of any juror based on that juror's race if racial motivation can be established. Accordingly, we reject appellant's preliminary argument that a Neil inquiry was improper here, solely because the jurors were white and composed a majority of the venire. ³

Our holding that there was no impediment for the state to bring a Neil challenge in the first instance against defense peremptory strikes leveled against white jurors leads us now to resolve the issue under traditional Neil and Slappy analyses, keeping in mind the admonition of the supreme court in Reed v. State, 560 So.2d 203 (Fla.1990), that the trial judge is vested with broad discretion in determining whether peremptory challenges are racially intended. As reiterated in Reed, the procedure established in Neil and Slappy requires, first, that the complaining party make a prima facie showing that there has been a strong likelihood that the jurors were challenged because of their race. If the judge makes that finding, the burden is then shifted to the challenger to demonstrate valid and nonracial reasons why the individual jurors were struck.

In the context of the instant case, we note initially that the transcript of the hearing on this issue did not begin with the state's objection to the defense's striking of the three white male jurors, but, rather,...