Frazier v. State

• Decision Date: 13 April 2005
• Docket Number: No. 4D03-1710.,4D03-1710.
• Citation: 899 So.2d 1169
• Parties: Cedric FRAZIER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

899 So.2d 1169

Cedric FRAZIER, Appellant, v. STATE of Florida, Appellee.

No. 4D03-1710.

District Court of Appeal of Florida, Fourth District.

April 13, 2005.

Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, Cedric Frazier, appeals his judgment of conviction and sentence for trafficking in cocaine and possession of cannabis. We reverse because the trial court erred in allowing the state's peremptory challenge of a Jamaican juror where the reason proffered for the challenge was neither race nor ethnic neutral.

During jury selection, the state attempted to peremptorily strike Juror Anderson, a black woman who moved to Florida from Jamaica several years ago. Appellant objected, noting that Anderson was the only black person remaining on the panel. The following exchange occurred concerning the juror:

Ms. Neuner: Judge, I strike juror number fourteen, Ms. Anderson.

Mr. Fleischman: Judge, I'm going to raise Melbourne on Anderson. At this point she would be the only black female ... She would be the only black person on the jury.

The Court: Okay, State.

Ms. Neuner: Yes, Judge. Miss Anderson has testified that she prior to living in Miramar was from Jamaica. Jamaica is known to be a high area for narcotics to be transported in from Jamaica to the United States. Being that we are dealing with a trafficking case that is my challenge for her being, that she, the area of where a individual is from is a factor to go into whether or not they can sit as a juror. In being that she is from an area that is highly known for narcotics, trafficking. I would strike her on that ground.

The Court: Defense, do you have anything you wish to say about that? It is a race neutral reason and does it appear to be genuine.

Mr. Fleischman: Judge, the only, when you say I do have a response, the only response to that would be that there was no questioning into that particular area. Which certainly the State could have gone into with her, even if outside the presence of the other jurors. So you're simply making—

The Court: It's a race neutral fact that she's from Jamaica. She's the only person from Jamaica and the court is familiar that Jamaica is a place where drugs many times import from. In fact we have many tourists that buy these little dolls that are stuffed full of cannabis and other goodies.

Mr. Fleischman: I want to if I could make a few other points in regard to Miss Anderson. She, however, again there was nothing on the record to indicate her knowledge or experience with any trafficking from Jamaica.

The Court: The fact that is if she had knowledge and experience it would be a challenge for cause. All that's required is it be a race neutral reason.

The court allowed the strike.

Juror Gongora, a prospective juror from Colombia, South America was selected as the next juror without objection from the state. The state then attempted to use a peremptory strike against Juror Daniel, a black woman from the U.S. Virgin Islands. Again, the state based the strike on the fact that the juror was from a country known for drug trafficking. The court, however, disallowed this strike. When jury selection ended, appellant preserved his objection to the peremptory strike of Anderson by renewing his objection before the jury was sworn. See Joiner v. State, 618 So.2d 174 (Fla.1993)

.

It is well-settled in Florida that peremptory challenges may not be used to exclude prospective jurors solely because of their race or ethnicity. See State v. Neil, 457 So.2d 481 (Fla.1984)

; State v. Alen, 616 So.2d 452 (Fla.1993). In Alen, the Florida Supreme Court extended Neil to protect cognizable ethnic groups from discriminatory use of peremptory challenges. The court held that the use of peremptory challenges against jurors based solely on their membership in an ethnic group is prohibited. After analyzing the various factors that determine whether a particular group constitutes a cognizable class entitled to Neil protection, the court recognized Hispanics as a cognizable ethnic group.

Although Neil prohibited racial discrimination in jury selection based on the defendant's right to an impartial jury under article I, section 16 of our state constitution, Alen and later Florida cases held that discriminatory peremptory challenges also violate the equal protection clauses of the state and federal constitutions. See Alen, 616 So.2d at 454

(citing Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991),

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)); see also Abshire v. State, 642 So.2d 542, 544 (Fla.1994) (holding that excluding women from jury solely because they were women violated prospective jurors' and defendant's right to equal protection).

In Hernandez, the United States Supreme Court suggested that the discriminatory use of peremptory strikes against Hispanics would violate the Equal Protection Clause. There, the Court summarized the three-step process established in Batson, 476 U.S. at 105-107, 106 S.Ct. 1712, for evaluating an objection to a peremptory strike. 500 U.S. at 352, 111 S.Ct. 1859. In the second step of the Batson process, the strike's proponent must offer a race-neutral explanation for the peremptory challenge. Id. The Supreme Court explained that "in evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Id. at 359, 111 S.Ct. 1859 (emphasis added). Because a trial court's ruling on the race-neutrality of an attorney's explanation is a question of law, federal appellate courts review the ruling de novo. See Stubbs v. Gomez, 189 F.3d 1099, 1105 (9th Cir.1999)

; United States v. McCoy, 23 F.3d 216, 217 (9th Cir.1994); United States v. Uwaezhoke, 995 F.2d 388 (3rd Cir.1993); United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991).

Similarly, under Melbourne v. State, 679 So.2d 759 (Fla.1996), Florida courts must follow a three-step process when peremptory strikes are challenged:

Step 1 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, the court must ask the proponent of the strike to explain the reason for the strike.

Step 2 At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.

Step 3 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.

679 So.2d at 764.

At Step 2 of the Melbourne procedure, the burden shifts to the strike's proponent to articulate a race-neutral explanation. The explanation will be deemed race-neutral for step 2 purposes as long as "no predominant discriminatory intent is apparent on its face." Melbourne, 679 So.2d at 764 n. 6 (citing Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). However, "if the explanation is not facially race-neutral, the inquiry is over; the strike will be denied." Id. at 764 n. 7.

As mentioned above, federal courts consider the facial validity of an explanation to be a question of law and thus review the trial court's ruling on this issue de novo. We should similarly review the trial court's ruling on facial validity de novo. Then, if we determine as a matter of law that the explanation is race-neutral, we should review the step 3 genuineness assessment for clear error. See Rodriguez v. State, 753 So.2d 29, 41 (Fla.2000)

(reiterating that, because the validity of a peremptory challenge turns primarily on an assessment of credibility, a trial court will be affirmed on appeal unless it is clearly erroneous).

In this case, the prosecutor explained that she struck the black juror because she was an immigrant from Jamaica, a country known for drug trafficking. Implicit in her stated reason is an assumption that Jamaicans have more exposure to the drug trade and thus are likely to harbor some bias or predisposition in drug prosecutions. The trial judge ruled that the prosecutor's explanation was race-neutral. We disagree. A neutral explanation means an explanation based on something other than the race or ethnicity of the juror. See Hernandez, 500 U.S. at 360,

111 S.Ct. 1859. As Hernandez recognizes, an explanation can serve as a surrogate for impermissible racial bias, particularly where there is a high correlation between race or ethnicity and the prosecutor's stated criterion. Id. at 372, 111 S.Ct. 1859.

Here, the prosecutor invoked the juror's place of origin as a reason to exclude her from jury service. Given the inextricable link between the juror's race, ethnicity, and country of origin, we do not view this explanation as race/ethnic-neutral.¹ The juror's Jamaican national origin is so closely tied to her race and ethnicity that to exclude her from jury service solely because of it violates the Equal Protection Clause. The guarantee of equal protection forbids the exclusion of prospective jurors on the basis of assumptions that arise solely from their racial or ethnic ancestry, which may encompass their country of origin. See Hernandez v. Texas, 347 U.S. 475, 477-78, 74 S.Ct. 667, 98 L.Ed. 866 (1954)

(stating that "exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment"). Cf. Wamget v. State, ...