Koenig v. State

• Decision Date: 28 January 1986
• Docket Number: No. 83-2692,83-2692
• Citation: 497 So.2d 875,11 Fla. L. Weekly 2523
• Parties: 11 Fla. L. Weekly 2523, 11 Fla. L. Weekly 284 Robert KOENIG, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 875

497 So.2d 875

11 Fla. L. Weekly 2523, 11 Fla. L. Weekly 284

Robert KOENIG, Appellant, v. The STATE of Florida, Appellee.

No. 83-2692.

District Court of Appeal of Florida Third District.

Jan. 28, 1986.

On Rehearing Dec. 2, 1986.

On Rehearing

Gelber, Glass & Durant and N. Joseph Durant, Jr., Miami, for appellant.

Jim Smith, Atty. Gen. and Anthony C. Musto, Sp. Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Although we agree with the defendant that, absent a determination that he had exercised his peremptory challenges to exclude blacks from the jury solely because of their race, the trial judge was without authority to discharge the jury pool on the ground that there was not "any black member on the jury," there is absolutely no evidence in this record--and, indeed, not even a suggestion below--to indicate that the trial judge's action in discharging this initial jury pool for the reason stated unlawfully inhibited the defendant's right to freely exercise peremptory challenges to prospective jurors in the ensuing jury pool from which the jury that convicted the defendant was selected. Thus, though error there be, there is no palpable connection between it and the jury that tried and convicted the defendant. We therefore affirm the defendant's conviction.

I.

The defendant, Robert Koenig, was brought to trial on an indictment charging him with manslaughter. The evidence at trial would reveal that Koenig, at the time of the incident an on-duty police officer employed by Metropolitan Dade County, is white and that the victim of the shooting, Donald Harp, was black.

During the jury selection process, Koenig peremptorily challenged four prospective jurors, all of whom were black. There were no blacks among the five jurors left in the jury box, and apparently only one black person remained in the pool of prospective jurors. It was unlikely, however, that this fifth black prospective juror would, in the ordinary course of the selection process, be called to serve. Faced with the seeming inevitability of an all-white jury, the trial judge intervened:

"I have to tell you, I'm looking for a fair and impartial jury of one's peers of a cross section of the community and that's going to possibly eliminate one of the cross sections of the community.

"We may have Latin, you may have white, but you are not going to have any blacks on the jury. And, I may find the matter of manifest necessity to start all over again, not on this jury panel before you exercise your challenges but to start again. I do have to advise you of that.

"You're entitled to your challenges, don't get me wrong, but we may have to start all over again and dismiss this panel. I don't know. Let's see.

"[PROSECUTOR]: It's obviously important that we have a cross section of the community. As I see it now, the last remaining black will not be reached.

"THE COURT: I don't know how counsel can go, one, two, three, four, five, six, seven. That's eight away.

"[PROSECUTOR]: I have five remaining. He has one remaining.

"THE COURT: That's--you may not want to let go of anybody here as well.

"Anybody have any solutions to this one?

"[DEFENSE COUNSEL]: I don't, Your Honor.

....

"[PROSECUTOR]: Your Honor, seeing that we have a panel of five blacks and four have been struck, I would ask at this time if Defense could stipulate, if the fifth black prospective juror would be taken out of turn, thus saving us the trouble of doing--

"[DEFENSE COUNSEL]: You mean you want to choose one and put [him] on?

"[PROSECUTOR]: No, I'm saying by stipulation we could choose the remaining on the jury who is Mr. Gabriel.

"THE COURT: You mean by stipulation out of turn?

"[PROSECUTOR]: Obviously.

"THE COURT: That would be about the only way it could be done. You understand my problem? Once again, I want to get a fair, not a favorable jury, one way or another, fair and impartial. The community is entitled to it, regardless. Okay.

"My giving--I'm giving you insight to judicial feelings. I have no way to pick a jury. It's not in my power, not within my purview to pick one individual and not another individual. I think you've got generally a decent group of people that would be fair and impartial.

"My suggestion is to go along with the State, or in the alternative, review one of your peremptory challenges that you've used here.

"It's entirely up to you as Defense attorney, or say, while, maybe you've reconsidered it, you wish to withdraw that particular one since I'm pretty liberal in my back strikes. If you don't want to, of course, you don't have to.

"[DEFENSE COUNSEL]: I understand.

"THE COURT: You understand the situation that I'm facing here. I want to make sure we have a good cross section. It only takes one person for a cross section, as far as I'm concerned.

"This community is basically three individuals or entities here, identifiable for years here and it's not like Perry, for example. You might have two areas of the community but here there's three and they all kind of want to be represented on the jury.

"Again, it's your decision and you are the attorney. That is one of my suggestions, or the State's suggestion, but to go and start tomorrow the whole selection if for some of you, you don't feel comfortable with any of these particular jurors, that will be okay. We'll start again. It will be up to you.

....

"THE COURT: ... So, you'll understand maybe I'm not saying that there was anything systematic but I don't want to end up with a problem....

....

"[DEFENSE COUNSEL]: I understand what the Court has said but I'm saying to the Court that we can reach no stipulation concerning the seating of jurors and can only insist that we proceed as the--in the order we've been proceeding in this trial up until this point.

"THE COURT: Okay. We have five tentative jurors. We're up to [Mr.] Cuba who is the first one in the second row."

Jury selection continued with the State exhausting its allotted six peremptory challenges. The lone remaining black person in the pool, Mr. Gabriel, was not yet called and would not be unless two of the jurors then in the jury box were challenged. The trial judge sustained the defendant's objection to the State's motion that it be given two additional peremptory challenges. The trial judge summarized the proceedings as they then stood and announced his decision to discharge the entire jury pool because no black had been chosen to sit on the jury:

"THE COURT: ... What that leaves us with is six potential jurors. The only possible--let's see, there seems to as if it's going to be an impossibility at this point in time, even if Defense were to exercise a challenge but one, two, three, four, five, six, we have six potential jurors. State has no challenges for cause to enter. There is one peremptory challenge left the Defense.

"Do you wish to exercise it?

"[DEFENSE COUNSEL]: No, Your Honor.

"THE COURT: Okay. So at this point in time it would appear that we would have a potential jury of one, two, three Latin females, one--two Anglo females, and we refer to Anglo here in Miami--one Anglo male, there not being any black member on the jury.

"The Court would feel absolutely to dictate a good conscious [sic] and ability to sleep to dismiss this entire jury panel and see if we can start tomorrow to find something that would be acceptable to both State and Defense, a good cross section of the community.

....

"We have to work extra hard which means we'll start again tomorrow. If we can get a jury that is acceptable in the Court's mind to be a fair and impartial jury panel of one's peers, then at that point in time we'll probably go into the opening tomorrow and go late.

"The Court, in its judgment had made a determination that we are going to go ahead and dismiss this jury panel on the doctrine of manifest destiny [sic ¹ in an effort to get a fair and impartial jury panel of one's own peers, cross section of the community. This, of course, is not to say that there's--let's just say that it was the makeup of the entire panel itself that did not lend itself, in the eyes of State or Defense, to end up with the jury panel that would be fair and impartial.

"On that basis, we go ahead and start again tomorrow. We'll dismiss this jury. Nobody has been sworn in so it's not a Defense of jeopardy." ²

The defendant objected to the discharge of the jurors. The following day, another jury was selected from a freshly summoned pool of potential jurors. Like its discharged predecessor, this jury, which tried and convicted the defendant, had no black members. ³

II.

Our determination that the trial court's discharge of the initial jury was unauthorized is based upon our examination of the relationship between the defendant's peremptory challenge right guaranteed by Section 913.08, Florida Statutes (1983), ⁴ and Florida Rule of Criminal Procedure 3.350, ⁵ and the prohibition announced in State v. Neil, 457 So.2d 481 (Fla.1984), ⁶ against peremptorily challenging jurors solely on the basis of race. As we detect it, the defendant's argument is that the trial judge, although perhaps acting with the best of intentions, improperly interfered with the defendant's peremptory challenge right when he discharged the unsworn but fully-selected jurors and jury pool without determining, as Neil requires, that the defendant had excluded blacks from the jury solely on the basis of race.

A.

The right to peremptorily challenge prospective jurors, guaranteed in Florida by statute and rule,

"has been held to be essential to the fairness of a trial by jury and has been described as one of the most important rights secured to a defendant. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). It is an arbitrary and capricious right which must be exercised freely to accomplish its purpose. It permits rejection for real or...