Rivera v. State, 94-3516

• Decision Date: 03 April 1996
• Docket Number: No. 94-3516,94-3516
• Citation: 670 So.2d 1163
• Parties: 21 Fla. L. Weekly D805 Edgardo Luis RIVERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1163

670 So.2d 1163

21 Fla. L. Weekly D805

Edgardo Luis RIVERA, Appellant, v. STATE of Florida, Appellee.

No. 94-3516.

District Court of Appeal of Florida Fourth District.

April 3, 1996.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge. L.T. Case No. 94-915-CF.

Richard L. Jorandby, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant appeals his conviction for aggravated battery on a pregnant woman. We reverse defendant's conviction because the trial court improperly prevented him from exercising a peremptory challenge to strike a female juror employed in the courthouse as a deputy clerk.

Following the questioning of prospective jurors, defendant sought to exercise his first peremptory challenge to strike juror Elizabeth Maxwell. The prosecution stated that "we would ask for a gender-neutral reason," after which the trial court requested defense counsel to state her basis for the challenge. Defense counsel explained that the juror worked as a deputy clerk in the courthouse, knew everyone connected with the case and that there is "a built-in prejudice toward the State." Defense counsel reminded the trial court that she was seeking to utilize a peremptory challenge and not seeking dismissal for cause.

Juror Maxwell worked as a deputy clerk in the jury room. The parties' familiarity with juror Maxwell and her familiarity with them was quite apparent from the beginning of jury selection. While the judge was initially going through the list of prospective jurors to be sure that he could pronounce their names correctly, he recognized juror Maxwell and stated: "Miss Maxwell, good afternoon, you'll get to see it from a different perspective today." During the court's voir dire, the judge asked the prospective jurors who either knew or were related to the defendant, the attorneys or the court personnel to raise their hands. When the judge got to juror Maxwell, the judge stated, "And Ms. Maxwell, I think you know everybody here."

Even in light of her position in the courthouse and her familiarity with the individuals involved (except presumably defendant), the trial court did not permit the defense to exercise a peremptory challenge. In denying the challenge, the trial court stated that defendant had not inquired further into whether juror Maxwell's employment status would have any effect on her ability to be fair and impartial after juror Maxwell had told the trial court that she could be fair and impartial.

The prohibition against race-based discrimination has been extended to gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89, 101-08 (1994); Abshire v. State, 642 So.2d 542 (Fla.1994), as well as ethnicity, State v. Alen, 616 So.2d 452 (Fla.1993). This prohibition applies equally to peremptory challenges exercised by the state or the defendant. See Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); State v. Aldret, 606 So.2d 1156 (Fla.1992). Potential jurors, as well as litigants, have an equal protection right to jury selection procedures free from stereotypical presumptions that reflect and reinforce patterns of historical discrimination. J.E.B., 511 U.S. at ----, 114 S.Ct. at 1421, 128 L.Ed.2d at 105.

In Florida this right is not based only on the Equal Protection Clause of the Fourteenth Amendment and the Florida Constitution, article I, section 2, but it is also based on the "guarantee of an impartial jury drawn from a cross section of the community contained in article I, section 16." Aldret, 606 So.2d at 1157. As explained in Abshire:

Jury service is a privilege accorded all citizens who meet certain qualifications and the right to an impartial jury is granted to every defendant who is entitled to a trial by jury. To extend or restrict this privilege based solely on the basis of gender is to foster the sex-based stereotypes that have long impeded the progress of women in our judicial system.

Abshire, 642 So.2d at 544.

The same procedural safeguards set forth in State v. Johans, 613 So.2d 1319 (Fla.1993), designed to prevent racial discrimination in jury selection, likewise apply to gender-based discrimination. See Abshire; Johans. When an objection is made that a peremptory challenge is being used in a gender-based discriminatory manner, a Neil ¹ inquiry is required. Abshire; Johans.

Under Florida law, there is an initial presumption that peremptories will not be exercised in an invidiously discriminatory manner. See Neil. A peremptory strike will be deemed valid unless an objection is made that the challenge is being used in a discriminatory manner on the basis of race, gender or any other cognizable class entitled to protection under Neil and its progeny. See Johans, 613 So.2d at 1321; Abshire, 642 So.2d at 544.

Here the prosecutor did not state an objection that the peremptory challenge was being used in a gender-based discriminatory manner. Rather, he simply stated: "Your Honor, we would ask for a gender-neutral reason." The prosecution's statement did not constitute either an objection or a threshold showing which would trigger the Neil inquiry envisioned by Johans.

In Portu v. State, 651 So.2d 791 (Fla. 3d DCA), review denied, 658 So.2d 992 (Fla. 3d DCA 1995), the third district held that no Neil inquiry was triggered by the state's merely noting that the juror was of Hispanic descent. Because the state failed to supply the threshold information necessary for an objection to provoke judicial inquiry into the basis for a peremptory challenge, the third district held that the peremptory challenge should have been granted. See also Slaton v. State, 666 So.2d 598 (Fla. 3d DCA 1996); cf. Johans (trial court must make inquiry if a party objects on grounds that even a single peremptory challenge is racially motivated).

Gender as a classification comprises 100% of the population. It is thus far from remarkable that the first defense strike would be a female. In painting a total picture of jury selection in this case, it also bears noting that the first peremptory challenge from the prosecution was also a woman and that both the defense and prosecution had agreed to strike three other jurors (two women and one man) for cause. No pattern of gender-based discrimination emerges nor does there appear a rational reason to rebut the initial presumption that the peremptories were being exercised in a nondiscriminatory manner. Cf. Abshire (prosecutor manifested desire to exclude women from jury); Laidler v. State, 627 So.2d 1263 (Fla. 4th DCA 1993)(prosecutor made no secret of her desire to eliminate all women from jury).

The fact that a party has challenged a woman or a man, standing alone, should be insufficient to trigger a Neil inquiry without the prosecution or defense objecting with some basis that the peremptory challenge is being used in a discriminatory manner. ² Otherwise, an opponent of the strike could always object and require the proponent to explain its use of a peremptory challenge because, with the exclusion of race, gender and ethnicity, all identifiable groups of the population are now protected from intentional invidious discrimination.

Even assuming that there was a sufficient predicate to trigger a Neil inquiry, the reason provided by defendant constituted a clear and reasonably specific gender-neutral reason to meet the requirements of Johans and Neil. The juror was a deputy clerk employed in the jury room at the courthouse who knew the participants and worked in the very system that would be responsible for trying this defendant. ³ Far from being a subterfuge for gender-based discrimination, defendant's concerns with having juror Maxwell on his jury were bona fide and rationally-based. As explained by our supreme court in 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), the reasons given for exercising a peremptory challenge need not be equivalent to a challenge for cause.

Defendant points out that persons who are inextricably intertwined with the judicial system are statutorily disqualified--the clerks of court, all judges and the members of the Clemency Board. See § 40.013(2)(a), Fla.Stat. (1995) ("Neither the Governor, nor Lieutenant Governor, nor any Cabinet officer, nor clerk of court, or judge shall be qualified to be a juror"). Defendant argues that, as a deputy clerk, juror Maxwell is called upon to perform various delegated duties of the clerk. This connection supplies an additional reason for holding that juror Maxwell's employment status supplied a gender-neutral reason for the...