Plaza v. State

• Decision Date: 10 September 1997
• Docket Number: No. 96-2199,96-2199
• Parties: 22 Fla. L. Weekly D2143 Gerardo PLAZA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 289

699 So.2d 289

22 Fla. L. Weekly D2143

Gerardo PLAZA, Appellant, v. The STATE of Florida, Appellee.

No. 96-2199.

District Court of Appeal of Florida Third District.

Sept. 10, 1997.

Bennett H. Brummer, Public Defender, and Louis K. Nicholas, II, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Douglas Gurnic, Assistant Attorney General, and Emma Savadier, Legal Intern, for appellee.

Before JORGENSON and SORONDO, JJ., and BARKDULL, Senior Judge.

PER CURIAM.

Defendant appeals from judgments of conviction and sentences for first degree murder, armed burglary, and armed robbery. We affirm.

During jury selection, the State exercised four peremptory challenges on prospective female jurors. Each State challenge occasioned a separate defense objection based upon gender discrimination. When the defense objected to one particular strike, the court stated:

I am not going to even turn to the State. I am making a record why I'm not turning to the State. It is true that ... she's ¹ a recovering alcoholic, as she testified, for three weeks.

The court allowed the strike, after further finding that no other juror against whom the State exercised a peremptory challenge was a recovering alcoholic. The defense objected.

On appeal, the defendant argues that the four peremptory strikes made by the State of female venire members were impermissibly based on gender, and that the trial court failed to consider the totality of the record when allowing those strikes. In addition, the defendant argues that the trial court erred in failing to conduct any Neil inquiry when the defense challenged the State's peremptory strike of the recovering alcoholic.

We find no deficiency in the trial court's conduct of the Neil inquiries. The court considered the State's specific reasons for the strikes, and properly found them to be gender neutral.

Additionally, we find no error in the trial court's efficient and thorough elucidation of the gender-neutral reason supporting the State's peremptory strike of the venire member who was a recovering alcoholic. The trial court was in the midst of a series of exhaustive Neil inquiries in which the defense challenged the State's peremptory strikes and the court properly required a gender-neutral explanation. We see no reason to shackle the court in its conduct of voir dire by requiring that it first ask for, and then await the State's explanation for a strike. If the record clearly supports the gender-neutral reason for a peremptory strike, and the trial court properly articulates that reason, there is no error in allowing the strike. See State v. Holiday, 682 So.2d 1092 (Fla.1996) (based upon review of entire record of voir dire concerning particular juror, court will not overturn trial court's determination of propriety of peremptory strike); Melbourne v. State, 679 So.2d 759 (Fla.1996) (trial court's assessment of credibility of reasons for strike will be affirmed unless clearly erroneous).

"The right to an impartial jury guaranteed by article I, section 16, is best safeguarded not by an arcane maze of reversible error traps, but by reason and common sense." Melbourne, 679 So.2d at 765. It defies reason and makes no sense to require a trial court, when it is engaged in the proper and thorough rigors of a Neil inquiry, to await a neutral explanation for a strike that is readily apparent from the record before articulating that explanation on the record. "The law does not require futile acts." Hoshaw v. State, 533 So.2d 886, 887 (Fla. 3d DCA 1988).

AFFIRMED.

JORGENSON, J., and BARKDULL, Senior Judge, concur.

SORONDO, Judge, specially concurring.

The majority finds no error in the trial court's ruling on the gender-neutrality of a peremptory challenge exercised by the state without asking the prosecutor to proffer her reasons. Specifically, the majority says:

We see no reason to shackle the court in its conduct of voir dire by requiring that it first ask for, and then await the state's explanation for a strike. If the record clearly supports the gender-neutral reason for a peremptory strike, and the trial court properly articulates that reason, there is no error in allowing the strike.

I believe that a careful reading of the Florida Supreme Court's decision in Melbourne v. State, 679 So.2d 759 (Fla.1996), requires a finding that the trial court erred by not asking the state's attorney for a valid gender-neutral reason for the exercise of her peremptory challenge. However, because I believe the error to be harmless, I agree that the convictions and sentences in this case should be affirmed.

The most recent refinement of the standards set forth in State v. Neil, 457 So.2d 481 (Fla.1984), was announced by the Supreme Court of Florida in Melbourne. The Court established the following analysis for determining the racial, ethnic, and/or gender neutrality and genuineness of a peremptory challenge:

Step 1 A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venire person is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike.

Step 2 At this point, the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation.

Step 3 If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

After setting forth the requirements of step 1, and before discussing the shifting of the burden of production, the Court stated, "If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike." Id. at 764 (emphasis added). The language used by the Court is mandatory. It seems clear to me that the purpose of the second step of the analysis is not to determine whether a valid gender-neutral reason exists, but, rather, whether the party exercising the strike is doing so on the basis of a valid gender-neutral reason. It is the subjective intent of the proponent of the peremptory which must be evaluated by the trial judge during step 2 of the analysis. For example, if the juror at issue had been previously arrested and prosecuted by the state attorney's office, clearly a valid gender-neutral reason, ² but, having been asked to proffer a valid reason the prosecutor responds that in his opinion a woman could not be fair in a murder case, the court would be obligated to disallow the peremptory challenge because the stated reason, reflective of the attorney's subjective intent, is discriminatory. The fact that the record contained a valid gender-neutral reason would not justify the strike because it would be clear that the strike was, in fact, gender-based. In the present case, the defendant objected to the state attorney's use of a peremptory challenge on the grounds that it was being used upon a female juror in a discriminatory manner. In so doing, the defendant satisfied the requirements of step 1. At this point, the burden of producing a valid reason for the strike shifted to the state, and the trial court was obligated to ask the state's attorney for a valid gender-neutral reason for excusing the juror in question. By not doing so, the trial judge erred. ³

The law is clear that the failure to exclude a potential juror who is excusable for cause or by the proper exercise of a peremptory challenge is reversible error, if the issue is properly preserved. Hill v. State, 477 So.2d 553 (Fla.), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512, (1988); Kelly v. State, 689 So.2d 1262 (Fla. 3d DCA 1997); Gill v. State, 683 So.2d 158 (Fla. 3d DCA 1996). It is equally true that the improper exclusion of a juror for cause or by way of a peremptory challenge is also reversible error. Farina v. State, 679 So.2d 1151 (Fla.1996); Abshire v. State, 642 So.2d 542 (Fla.1994); State v. Alen, 616 So.2d 452 (Fla.1993). The question presented in this case is whether an error committed by a trial judge during the course of conducting a Melbourne inquiry is reversible if it does not result in the improper exclusion or inclusion of a potential juror. I believe that it is not, and conclude that the trial judge's error here was harmless. A review of the record of the voir dire process supports this conclusion.

Before beginning an analysis of the jury selection process in this case it is important to note that the defendant was charged with first degree murder, armed burglary and armed robbery. The defense in the case was voluntary intoxication, a valid defense to a specific-intent crime. ⁴ Because of this anticipated defense, potential jurors were questioned extensively about their use of alcohol and drugs and any acquaintance they might have had with others who had drug and/or alcohol problems.

In order to effectively discuss the exercise of the peremptory challenges herein it is necessary to refer to individual jurors. Because the nature of the relevant inquiry in this case is of a personal nature, and in the interest of not embarrassing those who fulfilled their civic obligation by responding to jury duty, I will refer to the potential jurors in question by their first names. Also, to avoid redundancy, the "potential" jurors which were stricken will be referred to as jurors.

The first female juror stricken by the state was Juror Carol. The defense did not object to this strike but it is significant that both her father and mother are alcoholics. She went on to express very strong feelings about the use and abuse of drugs and alcohol but concluded by saying she could be fair. Before exercising a...