Kibler v. State

• Decision Date: 15 June 1989
• Docket Number: No. 70067,70067
• Citation: 14 Fla. L. Weekly 291,546 So.2d 710
• Parties: , 14 Fla. L. Weekly 291 David Wayne KIBLER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 710

546 So.2d 710

58 USLW 2070, 14 Fla. L. Weekly 291

David Wayne KIBLER, Petitioner, v. STATE of Florida, Respondent.

No. 70067.

Supreme Court of Florida.

June 15, 1989.

Rehearing Denied Aug. 17, 1989.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.

GRIMES, Justice.

We review Kibler v. State, 501 So.2d 76 (Fla. 5th DCA 1987), because of conflict with State v. Neil, 457 So.2d 481 (Fla.1984). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Kibler, a white man, was convicted of burglary and four counts of sexual battery. On appeal, he challenged the trial judge's refusal to dismiss the jury on the ground that the prosecutor used peremptory challenges to strike all three black persons called for service on the prospective jury. The district court of appeal held that Kibler did not have standing to raise the issue because he was not of the same race as the jurors who were challenged. The court went on to rule that even if Kibler had standing to raise the issue, the record did not demonstrate that the challenges had been exercised on a racial basis.

In Neil, this Court held that the Florida Constitution prohibits the exercise of peremptory challenges in criminal cases solely on account of race. The opinion imposed no limitation with respect to which defendants had the right to object, but in that case the defendant was black and black jurors were being challenged.

The Third District Court of Appeal specifically addressed the question before us in Castillo v. State, 466 So.2d 7 (Fla. 3d DCA 1985), approved in part, quashed in part, 486 So.2d 565 (Fla.1986). In reversing a conviction upon the authority of State v. Neil, the court stated in footnote 1:

A sub-issue under this point is whether a defendant may protest that an identifiable group other than his own is being systematically excluded. The question was answered affirmatively by the United States Supreme Court in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), which held that a criminal defendant, whatever his race, has standing to challenge the arbitrary exclusion of members of any race from service on a grand or petit jury.

466 So.2d at 8 n. 1. That portion of the opinion dealing with the Neil issue was later quashed by this Court on the ground that Neil should not be applied retroactively, but we did not address footnote 1. State v. Castillo, 486 So.2d 565 (Fla.1986).

Thereafter, in a case involving a black defendant, the United States Supreme Court held that a prosecutor could not exercise peremptory challenges against black jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, the Court specified that in order to establish a prima facie case of purposeful discrimination in the selection of the petit jury, the defendant must first show that the challenges are directed to a cognizable racial group of which he is a member.

In determining that Kibler had no standing to object, the district court of appeal concluded that there was nothing in the Neil opinion which suggested that our Court intended a different standing test than that set forth in Batson. However, we are not convinced that had the issue been presented, the United States Supreme Court would have precluded a white defendant from objecting to peremptory challenges of black jurors solely because of race. That Court had previously sustained a complaint by a nonblack defendant against the systematic exclusion of blacks from grand jury and petit jury venires when it held:

[W]hatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.

Peters v. Kiff, 407 U.S. 493, 504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972). Three years later, the same Court faced another standing question in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), in which a male defendant argued that because women were systematically excluded from the jury venire, he would be deprived of his federal constitutional right to a fair trial by an impartial jury. The Court rejected the argument that the defendant had no standing because he was not a member of the excluded class and held that the sixth amendment required that the defendant's jury be chosen from a fair cross-section of the community.

Several courts have limited the cross-section analysis under the sixth amendment to the selection of the jury venire and have declined to extend it to the trial jury itself. Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984); United States v. Childress, 715 F.2d 1313 (8th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). However, the California Supreme Court in People v. Wheeler 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), held that the California equivalent of the sixth amendment dictated that peremptory challenges could not be exercised against blacks because of group bias even in cases where the defendant was white. The Supreme Judicial Court of Massachusetts reached a similar conclusion when it held that common group membership of a defendant and the challenged jurors was not a prerequisite to the assertion of a complaint. Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Accord State v. Superior Court, 157 Ariz. 541, 760 P.2d 541 (Ariz.1988); Seubert v. State, 749 S.W.2d 585 (Tex.Ct.App.1988). Although Peters v. Kiff involved the exclusion of a discrete racial group during the venire selection rather than during voir dire, we see no rational difference which would preclude racial discrimination in one but not the other. The systematic exclusion of prospective jurors solely because of their race is equally wrong at any stage of the jury selection.

In Batson v. Kentucky, the Supreme Court may have specified that the defendant must be of the same race as the challenged jurors because its decision was predicated upon the equal protection clause of the fourteenth amendment. Since the Court was not addressing a sixth amendment assertion of the right to an impartial jury, it was unnecessary to address the question before us in the instant case. However, our decision in Neil was unmistakably based upon article I, section 16 of the Florida Constitution. In Neil we said:

Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury.

457 So.2d at 486.

We hold 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. See Commonwealth v. Soares.

We recognize that this opinion places further limitations on the ability to exercise peremptory challenges. However, we are unable to fashion any other rule which will maintain the credibility of our criminal justice system. The right of an accused to an impartial jury cannot be fully guaranteed when the peremptory challenge is used to purposefully exclude members of a cognizable racial group, regardless of the race of the defendant.

Notwithstanding, we are also in full accord with the admonition of Taylor v. Louisiana that:

[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.

419 U.S. at 538, 95 S.Ct. at 702. It may often be that no members of a particular race will be on a given jury because of the racial composition of the community as reflected by the random section of the venire or because all members of that race will have been challenged for specific biases relating to the case. Parties are only constitutionally entitled to the assurance that peremptory challenges will not be exercised so as to exclude members of discrete racial groups solely by virtue of their affiliation.

Referring now to the case at hand, we find pertinent the following colloquy which took place during voir dire:

MS. FORRESTER: Okay. Judge, I...