Green v. State, 87-03552

• Decision Date: 14 December 1990
• Docket Number: No. 87-03552,87-03552
• Parties: 15 Fla. L. Weekly D2999 Larry Bernard GREEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 543

572 So.2d 543

15 Fla. L. Weekly D2999

Larry Bernard GREEN, Appellant, v. STATE of Florida, Appellee.

No. 87-03552.

District Court of Appeal of Florida Second District.

Dec. 14, 1990.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

We affirm the convictions and sentences for battery on a law enforcement officer and resisting arrest with violence.

We disagree with the black defendant's contention on appeal that the trial court erred in overruling the defendant's objection to the state's peremptory challenge of one of two black prospective jurors. The state said it would not challenge the other and did not do so. The defendant's only basis for the objection was that the challenged prospective juror was one of two black prospective jurors.

In this opinion we undertake to clarify somewhat a particular aspect of the case law regarding peremptory challenges of jurors who are members of a distinct racial group, an aspect which has not been dealt with consistently in all the district court of appeal cases. That aspect concerns the initial burden which must be carried by a party objecting to an allegedly racially discriminatory peremptory challenge in order to shift to the challenging party the burden of showing racially neutral reasons for the challenge. This opinion indicates why that initial burden was not carried in this case, compares circumstances under which that burden has and has not been carried in other cases, and describes the significance of that burden in any case.

The trial court's overruling of the foregoing defense objection has not been affirmed on the ground argued in the trial court that the state carried its burden of showing that its peremptory challenge was for racially neutral reasons. Rather, our affirmance is on a ground not raised in the trial court: that the defense did not carry its initial burden which must be carried to require the state to carry a burden of the kind argued in the trial court. That was the initial burden of showing pursuant to State v. Neil, 457 So.2d 481, 486 (Fla.1984), that "there is a strong likelihood that [the subject juror has] been challenged solely because of ... race." See also Reed v. State, 560 So.2d 203, 205 (Fla.1990); Kibler v. State, 546 So.2d 710, 712 (Fla.1989); State v. Slappy, 522 So.2d 18, 21 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); Blackshear v. State, 521 So.2d 1083, 1084 (Fla.1988). Other cases which have found that initial burden to have not been carried include State v. Williams, 566 So.2d 1348 (Fla. 1st DCA 1990) (that the state peremptorily challenged three out of six prospective black jurors did not overcome the presumption that the peremptory challenges were exercised in a nondiscriminatory manner and shift the burden to the state to show racially neutral reasons for the challenges); Dinkins v. State, 566 So.2d 859 (Fla. 1st DCA 1990) (that the state peremptorily challenged the first black person on the jury panel was insufficient to shift to the state the burden to show lack of racial motivation in its challenge); and Verdelotti v. State, 560 So.2d 1328 (Fla. 2d DCA 1990) (that the state peremptorily challenged one out of three prospective black jurors did not establish a prima facie case of racial discrimination so as to shift to the state the burden to show lack of racial motivation in its peremptory challenge).

That initial burden may be carried in a particular case by a showing that "the state [has] engage[d] in a pattern of excluding a minority...." Slappy, 522 So.2d at 23. That showing was not made in this case, where one out of two prospective black jurors was challenged, or in Verdelotti, where one out of three was challenged. Nor was it found to have been made in Williams, where three out of six were challenged, or in Dinkins, where the first black person on the panel was challenged. In contrast, that showing was made in Holton v. State, 573 So.2d 284, 286-287 (Fla.1990) (state peremptorily challenged the only two black persons in the first group of prospective jurors and then peremptorily challenged a third prospective black juror who apparently was in a subsequent group); Bryant v. State, 565 So.2d 1298, 1300 (Fla.1990) (state peremptorily challenged five prospective black jurors out of its first seven peremptory challenges); Slappy, 522 So.2d at 19 ("Four of the state's six peremptory challenges were used to exclude blacks from the panel...."); Foster v. State, 557 So.2d 634 (Fla. 3d DCA 1990) (state had peremptorily challenged three out of five prospective black jurors); Timmons v. State, 548 So.2d 255, 257 (Fla. 2d DCA 1989) (state had peremptorily challenged the sole prospective black juror on the venire after another black juror had been excused for cause); Mack v. State, 545 So.2d 489 (Fla. 2d DCA 1989) (state had peremptorily challenged three out of five black prospective jurors); and Sampson v. State, 542 So.2d 434, 435 (Fla. 4th DCA 1989) (state used its first two peremptory challenges against two of the "very few minorities on the panel").

The potential range of other circumstances under which that initial burden could be carried has not been spelled out in the case law. See Slappy, 522 So.2d at 21. Although any doubt in that regard should be resolved against the validity of the challenge, id. at 22, no pattern of excluding a minority or other showing of a strong likelihood that the challenge was solely because of race was made in this case through the foregoing basis for the defense objection to the state's challenge.

The Florida Supreme Court's statement in Slappy condemning on constitutional grounds "the striking of a single black juror for a racial reason," 522 So.2d at 21 (quoting United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987)), does not call for a reversal in this case. Slappy does not condemn the striking of a single black juror as such. It does so only if the juror was stricken "for a racial reason," a showing of which requires that the above described initial burden of proof be carried and then be not satisfactorily rebutted by the state. See also, e.g., Williams v. State, 567 So.2d 1062 (Fla. 2d DCA 1990); Dinkins. But see Mitchell v. State, 548 So.2d 823, 824 (Fla. 1st DCA 1989) (while reciting that defendant had shown a substantial likelihood of racial discrimination in the state's peremptory challenges of two black prospective jurors thereby placing upon state burden of showing racially neutral reasons for the challenges, court gave no basis upon which such a substantial likelihood appeared other than stating that "the exclusion of even a single prospective black juror for a racially impermissible reason may be a violation of equal protection.").

Thus, we hold that the state in this case never had a burden of showing that its challenge was racially neutral. That is, the state was entitled to exclude the black prospective juror without expressed justification, as the state--or, for that matter, the defense--could have done with any other prospective juror until its allotted peremptory challenges were exhausted.

As indicated above, at the point in this case in the trial court at which defendant raised his objection to the state's challenge of the prospective juror, the state did not object to defendant's failure to carry his initial burden. Yet the trial court at that point appears to have preempted the situation and to have disposed of any occasion for such an objection by the state by forthwith requiring the state to justify the challenge and then ruling in the state's favor. Also, it has been held in effect that even the volunteering by the state of its reason for its challenge in a case like this before the defendant has carried his initial burden is not a waiver of that initial burden. See Dinkins. ¹

While the trial court did not refer to the failure of defendant to carry that initial burden as a basis for overruling defendant's objection (nor did the state call attention to that aspect on appeal), that failure requires this court's affirmance. See Grant v. State, 474 So.2d 259, 260 (Fla. 1st DCA 1985). It should also be noted that there is no other valid ground for an affirmance regarding the trial court's ruling on defendant's objection to the state's peremptory challenge. The only basis given by the state for its challenge prior to the trial court's overruling of defendant's objection was insufficient to establish a racially neutral reason for the challenge. That basis was given in the following colloquy between the court and counsel for the state: "What's your reason for striking this juror ...?" "Judge, I just don't like his answers to--his responses to my questions. I'm not striking him based on race." "Do you have any specifics?" "Nothing specifically, Judge. I would only add that I'm not going to strike the other black juror." See Slappy, 522 So.2d at 22 (when state has the burden to show that its peremptory challenge was not racially motivated, in order to carry that burden the state's reason for the challenge must be "a 'clear and reasonably specific' racially neutral explanation") (quoting Batson v. Kentucky, 476 U.S. 79, 96-98 & n. 20, 106 S.Ct. 1712, 1722-24 & n. 20, 90 L.Ed.2d 69, 87-88 & n. 20 (1986)).

The case law in this area has not been entirely consistent. There are statements in some district court of appeal cases which, as seems to have been the approach of the trial court in this case, appear mistakenly to have interpreted supreme court case law by placing on the challenging party the burden to justify its peremptory challenge of a prospective black juror upon merely the other side's objection thereto, or which can be read as having done so. See Shelton v. State, 563 So.2d 820 (Fla. 4th DCA 1990) (following state's...