Pride v. State, 94-1969

• Decision Date: 13 December 1995
• Docket Number: No. 94-1969,94-1969
• Citation: 664 So.2d 1114
• Parties: 20 Fla. L. Weekly D2709 Edward PRIDE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1114

664 So.2d 1114

20 Fla. L. Weekly D2709

Edward PRIDE, Appellant, v.The STATE of Florida, Appellee.

No. 94-1969.

District Court of Appeal of Florida Third District.

Dec. 13, 1995.

Bennett H. Brummer, Public Defender, and Joseph R. Gomez, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Angelica D. Zayas, Assistant Attorney General, for appellee.

Before NESBITT, LEVY and GERSTEN, JJ.

GERSTEN, Judge.

Appellant, Edward Pride, appeals his convictions for sexual battery, claiming the trial court erred in conducting Neil inquiries for peremptorily challenged jurors.We reverse because the trial court improperly conducted a Neil inquiry.

During a voir dire sidebar, appellant attempted to peremptorily backstrike a prospective juror.As the trial court continued to ask appellant's approval on other jurors, the State noted, "She[the prospective juror] is both a woman and a [sic] Cuban heritage."The State said nothing more.Appellant immediately justified his challenge, stating: the juror was inattentive, unresponsive, and dishonest, had looked at appellant with "horror," and had described appellant's appearance as "funky."

Determining that appellant failed to give "a race neutral reason" for backstriking the juror, the trial court seated the juror and denied appellant's motion to strike the entire jury panel.The jury found appellant guilty.

Appellant asserts, inter alia, that the trial court denied him a fair trial by refusing to honor his peremptory backstrike.The State contends that the trial court properly found appellant's backstrike to be discriminatory and properly seated the juror.

The trial court should conduct a Neil inquiry only after the non-challenging party makes a timely objection, identifies the prospective juror as a member of a cognizable class, and demonstrates record facts which reasonably indicate the impermissible use of a peremptory strike.Windom v. State, 656 So.2d 432(Fla.1995);Cruz v. State, 660 So.2d 792(Fla. 3d DCA1995);seeState v. Neil, 457 So.2d 481(Fla.1984).The non-challenging party must satisfy each of these prongs for a Neil inquiry to be warranted.SeeState v. Johans, 613 So.2d 1319(Fla.1993);State v. Slappy, 522 So.2d 18(Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909(1988);Cruz, 660 So.2d at 792-93.

Here, at best, the State identified the juror as a member of alternative cognizable classes.However, this is not enough to warrant inquiry without a formal, evidentiary-like objection to appellant's use of the peremptory.Merely requesting a Neil inquiry, asking for gender- or race-neutral reasons for the peremptory, or observing for the record that the peremptory seems discriminatory is not sufficient.Portu v. State, 651 So.2d 791(Fla. 3d DCA), rev. denied, 658 So.2d 992(Fla.1995);Betancourt v. State, 650 So.2d 1021(Fla. 3d DCA), rev. denied, 659 So.2d 272(Fla.1995);seeGarcia v. State, 655 So.2d 194(Fla. 3d DCA1995);Barquin v. State, 654 So.2d 1069(Fla. 3d DCA1995).

This record indicates the trial court did not conduct a traditional Neil inquiry by formally prompting the challenging party to justify on the record its peremptory strike.Instead, appellant began arguing why it chose to backstrike the prospective juror immediately after the State noted the juror's gender and cultural heritage.

However, the trial court relied on appellant's justifications in determining failure to give a race-neutral reason...