Moriyon v. State

Citation543 So.2d 379,14 Fla. L. Weekly 1200
Decision Date16 May 1989
Docket NumberNo. 88-669,88-669
Parties14 Fla. L. Weekly 1200 Luis Enrique MORIYON, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

John R. Sutton, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.

Before JORGENSON, COPE and LEVY, JJ.

JORGENSON, Judge.

Luis Enrique Moriyon appeals a judgment of conviction and sentence for trafficking in cocaine. Moriyon asserts reversible error based upon the trial court's refusal to grant his motion for severance and failure to conduct an adequate Neil inquiry. 1

We agree that the trial court committed reversible error by failing to conduct an adequate inquiry into the state's use of peremptory challenges to strike black prospective jurors pursuant to State v. Neil, 457 So.2d 481 (Fla.1984), clarified sub nom State v. Castillo, 486 So.2d 565 (Fla.1986), and State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988). 2 In support of its assertion that no error occurred, the state offers two justifications. First, the state contends that, as a Hispanic defendant, Moriyon lacked standing to question the state's exercise of peremptory challenges. This court, however, has held repeatedly that "[a] defendant, whatever his race, has standing to challenge the arbitrary exclusion of members of any race for grand or petit jury service." Castillo v. State, 466 So.2d 7, 8 n. 1 (Fla. 3d DCA 1985) (following Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), approved in part, quashed in part on other grounds, 486 So.2d 565 (Fla.1986); Rodriguez v. State, 539 So.2d 612 (Fla. 3d DCA 1989); Parrish v. State, 540 So.2d 870 (Fla. 3d DCA 1989); Hernandez v. State, 538 So.2d 521 (Fla. 3d DCA 1989); Del Sol v. State, 537 So.2d 693 (Fla. 3d DCA 1989). The Florida supreme court limited the impact of Neil to "peremptory challenges of distinctive racial groups solely on the basis of race," reserving for another day the question whether Neil is implicated where group bias is based upon "religious, ethnic, sexual, or other grounds." 457 So.2d at 487. If we were not sufficiently clear in Castillo, where we alluded to the question of standing to protest the exclusion from jury service of an identifiable group other than the defendant's, we now hold explicitly that a party may request an inquiry into the use of peremptory challenges on the basis of ethnicity. Standing exists whether the defendant is Hispanic, rather than black, as in Castillo and Del Sol, or a Hispanic whose defense counsel is black, as in the case now before us. 3 Neil and other cited cases evince a juridical concern to increase rather than to diminish minority participation on trial juries. 4 Second, the state urges that the trial court did in fact conduct a Neil inquiry just prior to swearing in the jury. A careful review of the record demonstrates that the trial court conducted the most perfunctory of inquiries and accepted at face value the state's proffered reasons for excluding black veniremembers from the jury. It appears that the hearing was curtailed without allowing a full presentation by the defense because of the erroneous premise that Neil was inapplicable. This prevented the necessary development of a complete record, which is an essential prerequisite both for the trial judge and for appellate review. 5 "[A] judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact." Slappy, 522 So.2d at 22.

Reversed and remanded for a new trial. Conflict certified.

1 We find no abuse of discretion in the trial court's denial of Moriyon's motion to sever his trial from that of codefendant Lourdes Garcia Lavin. Severance is not required where, as here, the antagonistic defenses amount to nothing more than codefendants blaming one another for the crime. O'Callaghan v. State, 429 So.2d 691 (Fla.1983); McCray v. State, 416 So.2d 804 (Fla.1982).

2 Voir dire was conducted outside the presence of the trial court. Upon our request, the parties furnished supplemental briefs on the issue of a trial judge's absence during voir dire in light of the supreme court's recent decision in Brown v. State, 538 So.2d 833 (Fla.1989). In Brown, the court recognized that a judge's presence throughout a trial is a fundamental right which can be waived only by a fully informed defendant, not defense counsel, and only in limited...

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3 cases
  • Smith v. State
    • United States
    • Florida District Court of Appeals
    • 12 Febrero 1991
    ...serve on the defendant's jury. Slappy, 522 So.2d at 21; see also Stubbs v. State, 540 So.2d 255 (Fla. 2d DCA 1989); Moriyon v. State, 543 So.2d 379 (Fla. 3d DCA 1989), review dismissed, 549 So.2d 1014 (Fla.1989). Hence there can be no question of the reversible incorrectness of a lower cour......
  • Bryant v. State, s. 71356
    • United States
    • Florida Supreme Court
    • 29 Marzo 1990
    ...not justifiable reasons by themselves to require a severance. See, e.g., Dean v. State, 478 So.2d 38 (Fla.1985); McCray; Moriyon v. State, 543 So.2d 379 (Fla. 3d DCA), review dismissed, 549 So.2d 1014 (Fla.1989); Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA severance because their positio......
  • Sanchez v. International Park Condominium Ass'n, Inc.
    • United States
    • Florida District Court of Appeals
    • 26 Junio 1990
    ...v. Cornett, 463 So.2d 399 (Fla. 3d DCA), cause dismissed, 469 So.2d 748 (Fla.1985) (applying Neil to civil cases), and Moriyon v. State, 543 So.2d 379, 380 (Fla. 3d DCA), review dismissed, 549 So.2d 1014 Jury service is a collegial process. It may be that the other jurors were not affected ......

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