Parrish v. State, 87-2586
Decision Date | 28 February 1989 |
Docket Number | No. 87-2586,87-2586 |
Citation | 14 Fla. L. Weekly 565,540 So.2d 870 |
Parties | 14 Fla. L. Weekly 565 Donald PARRISH, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Jacqueline M. Valdespino, Asst. Atty. Gen., for appellee.
Before NESBITT, BASKIN and COPE, JJ.
Donald Parrish, a black defendant, 1 appeals his conviction for sale of cocaine. He contends that the trial court committed reversible error in failing to conduct the inquiry mandated by State v. Neil, 457 So.2d 481, 486 (Fla.1984), clarified sub nom State v. Castillo, 486 So.2d 565 (Fla.1986), and State v. Slappy, 522 So.2d 18, 22 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988). We agree and reverse.
During voir dire, the state used one of its peremptory challenges to strike the only black prospective juror. Defense counsel called the court's attention to the state's use of a peremptory challenge to excuse that juror. The trial judge interrupted defense counsel and stated:
THE COURT: Did you need to make [Neil ] inquiry?
MR. ITKIN [defense counsel]: Yes.
MS. PARR [prosecutor]: State would voluntarily strike her.
The all white jury found Parrish guilty of sale of cocaine. Parrish filed this appeal.
According to Neil, a presumption exists that peremptory challenges will be exercised in a nondiscriminatory manner. A party concerned about an opponent's use of peremptory challenges must demonstrate, following a timely objection, that the challenged individuals are members of a distinct racial group, and that there is a strong likelihood that the challenges are based solely on race. Neil. Any doubt as to whether the moving party has met the burden should be resolved in that party's favor. Slappy; Johnson v. State, 537 So.2d 117 (Fla. 1st DCA 1988).
In the case before us, defense counsel's objection met the threshold test. Counsel promptly called the court's attention to the state's exercise of a peremptory challenge to excuse the only black person in the venire. There was no indication that the challenged juror would be partial or unfair. The striking of the only black member demonstrated a strong likelihood that the juror was rejected on racial grounds. Pearson v. State, 514 So.2d 374, 375 (Fla. 2d DCA 1987) (, )review dismissed, 525 So.2d 881 (Fla.1988). The state's challenge left the panel without a single black member. See Blackshear v. State, 521 So.2d 1083, 1084 (Fla.1988) ( ); Floyd v. State, 511 So.2d 762, 763 (Fla. 3d DCA 1987) ( ); see also Slappy, 522 So.2d at 21 () and cases cited therein; but see Smith v. State, 538 So.2d 926 (Fla. 1st DCA 1989) ( ).
Once the moving party demonstrates the likelihood of racial bias, the burden of proof shifts to the state to rebut that inference by furnishing a " 'clear and reasonably specific' racially neutral explanation of 'legitimate reasons' for the state's use of peremptory challenges." Slappy, 522 So.2d at 22; see McCloud v. State, 530 So.2d 56 (Fla.1988). The trial court may not accept the reasons proffered at face value, but must evaluate the explanation just as it would weigh any disputed fact. Slappy, 522 So.2d at 22; Tillman v. State, 522 So.2d 14, 16 (Fla.1988). When the trial court permitted the state to "volunteer a rationale," the state cited the experience with misidentification. The court decided that the threshold for a Neil inquiry had not been met; it did not evaluate the state's explanation. Cf. King v. State, 514 So.2d 354, 357 (Fla.1987) (), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). Furthermore, the record suggests that the reason voiced by the state may have been a mere pretext for its conduct. 2 Another prospective juror, a white male named Thomas, also related an experience with misidentification, 3 but was not challenged. See Floyd, 511 So.2d at 764 (...
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