Johnson v. State
| Decision Date | 22 August 2018 |
| Docket Number | No. 4D15-4452,No. 4D15-4519,No. 4D15-4539,4D15-4452,4D15-4519,4D15-4539 |
| Parties | GEOVANI JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Consolidated appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Kathleen McHugh, Judge; L.T. Case Nos. 13-011816CF10A, 13-012248CF10A and 14-013212CF10A.
Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
Geovani Johnson ("Defendant") appeals his convictions and sentences from three cases. We consolidated the appeals. Defendant contends the trial court erred by: (1) failing to conduct a proper Melbourne1 analysis to a peremptory challenge by the State; and (2) violating Defendant's Sixth Amendment confrontation right by allowing the State to introduce a 911 call. We affirm on the Sixth Amendment issue without discussion. But because we agree the trial court did not comply with Melbourne, we reverse Defendant's convictions and sentences and remand for a new trial. The ultimate question we answer in this case is whether the Melbourne procedure is always a three-step process, or a three-step process if requested. We determine that the Melbourne procedure is indeed alwaysa three-step process.
Defendant was charged with three counts of robbery with a firearm and one count of possession of a firearm by a convicted felon. The case proceeded to a jury trial.
During jury selection, the State exercised a peremptory challenge on Juror No. 10, an African-American male. At Defendant's request, the trial court asked the state for a race-neutral reason for the strike. The State responded:
The State does have a race-neutral reason. [Juror No. 10] indicated that he would prefer CSI evidence.[2] Additionally, the Defense has stricken two black females in their first round of strikes. They've also stricken black individuals for cause. And this is --
Cutting off the State, the trial court stated: Defendant did not make any further objection or argument at that time. However, at the conclusion of the jury selection process, when asked if each side accepted the panel of jurors, the defense advised the panel was not acceptable, in part because the trial court "denied my Melbourne vs. State objection to the State striking [Juror No. 10]."
The jury found Defendant guilty of three counts of robbery with a weapon, lesser-included offenses, and not guilty of possession of a firearm by a convicted felon. The court entered judgment and sentenced Defendant to concurrent prison terms for the three robberies. Defendant gave notice of appeal.
We review a trial court's decision to uphold or deny a peremptory challenge for abuse of discretion. Truehill v. State, 211 So. 3d 930, 942 (Fla. 2017). As a reviewing court, we must presume that peremptory challenges are exercised in a nondiscriminatory manner. Poole v. State, 151 So. 3d 402, 409 (Fla. 2014).
"Under Florida law, a party's use of peremptory challenges is limited only by the rule that the challenges may not be used to exclude members of a 'distinctive group.'" San Martin v. State, 705 So. 2d 1337, 1343 (Fla. 1997).
[T]o strike the appropriate balance between a party's right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, [our supreme court] in Melbourne enunciated a three-step procedure to be followed when a party objects to the exercise of a peremptory challenge on the ground that it was made on [an improper] discriminatory basis.3
Hayes v. State, 94 So. 3d 452, 460-61 (Fla. 2012) (emphasis added). Based on the United States Supreme Court's holdings in Batson v. Kentucky, 476 U.S. 79 (1986) and Purkett v. Elem, 514 U.S. 765 (1995), and Neil-Slappy4 case law, the procedure was stated as consisting of three steps:
See Melbourne, 679 So. 2d at 763-64; Hayes, 94 So. 3d at 461. In interpreting the true scope of the Melbourne procedure, we will rely on case law generated by Batson and Purkett and its progeny, especially two decisions from the United States Supreme Court.
Defendant's appeal focuses on Step 3 of the Melbourne procedure. Relying on Hayes, Defendant contends the record does not support a conclusion that the trial court properly conducted Step 3. Specifically, Defendant argues the trial court did not review, analyze, or conduct any "judicial assessment" of the reasons given by the State for striking Juror No. 10; instead, the trial court summarily ratified the peremptory challenge. Additionally, Defendant argues the "cold record" is "devoid of any indication" that the trial court "considered or weighed any relevant circumstances in deciding whether the State's strike was discriminatory."
The State responds, arguing a lack of preservation because Defendant failed to raise an issue of noncompliance with Melbourne below. As to the merits of Defendant's arguments, the State also relies on Hayes, contending that when a defendant objects to the State's exercise of a peremptory challenge, and the trial court upholds the strike, the defendant carries the burden of persuasion that the State's strike was exercised in a discriminatory manner. The State contends the record shows the trial court complied with Step 3. Relying on Lidiano v. State, 967 So. 2d 972, 975 (Fla. 3d DCA 2007), the State argues that "[t]he trial court is not required to orally perform its genuineness analysis or to articulate the basis for its ruling." Moreover, the State contends that because it pointed out, in providing its race-neutral reason for striking Juror No. 10, that the defense had stricken two black females in the defense's first round of strikes, after the State had twice accepted the jury panel including those jurors, the record reflects that the trial court was aware of and considered the circumstances relevant to determining if a strike was improperly discriminatory and implicitly found there was no pretext in the strike.
Melbourne was decided in 1996. Twenty-two years later, courts still struggle with its proper application. Over the years, the case law has focused increasingly on Step 3 of the Melbourne procedure. The unresolved troublesome aspects of what Step 3 means and what it involves is perhaps best demonstrated by our supreme court's most recent opinionon the subject, Spencer v. State, 238 So. 3d 708 (Fla. 2018). The Spencer opinion reveals a divided court on the issue of the preservation requirements for a Melbourne noncompliance claim. Ultimately, all of the justices agreed with the Second District that Spencer's conviction should not be reversed for noncompliance with Melbourne. Id. at 716. In a plurality opinion, three justices agreed the Melbourne noncompliance claim was preserved. Id. at 718. Two justices concurred in result, with an opinion disagreeing that the claim was preserved, suggesting that the court recede from language in Hayes, and readopt the court's prior preservation reasoning in Floyd v. State, 569 So. 2d 1225 (Fla. 1990). Id. at 719-20 (Lawson, J., concurring in result). Two justices concurred in result without an opinion. Id. at 718.
In Spencer, the supreme court considered a certified question from the Second District. Id. at 711. On direct appeal, the Second District upheld Spencer's conviction, determining that his claim that the trial court did not comply with Step 3 of Melbourne was not preserved. Spencer v. State, 196 So. 3d 400, 401 (Fla. 2d DCA 2016). As to one prospective juror, Spencer never asserted the State's reason for the strike was a pretext. Id. at 410. As to the other prospective juror, Spencer did not object to the manner in which the trial court conducted the Melbourne procedure. Id. The Second District opined that the trial court was not required to perform a full genuineness analysis on the record every time a party initiates a Melbourne challenge, and if the opponent of the strike wants the trial court to determine the genuineness of the reason proffered for the strike, the opponent "must expressly make a claim of pretext and at least attempt to proffer the circumstances that support its claim." Id. at 401. After conducting an extensive analysis of the law regarding Step 3, the Second District wrote: "It is true that the trial courts must make the three decisions required by Melbourne if requested, but the parties are not entitled to sit back and have the court go through this process for them." Id. at 409 (bold emphasis added).
The Second District certified a three-part question of great public importance:
During a Melbourne hearing, when a trial court finds that the proponent's reason for a peremptory challenge is facially...
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