Smellie v. Torres, s. 89-440

• Decision Date: 11 September 1990
• Docket Number: 89-687 and 89-688,Nos. 89-440,89-445,s. 89-440
• Citation: 570 So.2d 314
• Parties: 15 Fla. L. Weekly D2291 Winston SMELLIE, et al., Appellants, v. Raymond TORRES, et al., Appellees.
• Court: Florida District Court of Appeals

Page 314

570 So.2d 314

15 Fla. L. Weekly D2291

Winston SMELLIE, et al., Appellants, v.Raymond TORRES, et al., Appellees.

Nos. 89-440, 89-445, 89-687 and 89-688.

District Court of Appeal of Florida Third District.

Sept. 11, 1990.

Rehearing Denied Dec. 19, 1990.

Kubicki, Draper, Gallagher & McGrane, Betsy Gallagher and Dennis J. Murphy, and Allocca & Felder, Miami, for appellants.

Daniels and Hicks, Bambi G. Blum, and Miller, Selig & Kelley, and Herman M. Klemick, Miami, for appellees.

Before NESBITT, BASKIN and FERGUSON, JJ.

NESBITT, Judge.

A tow truck owned by 27th Avenue Gulf Service Center, Inc. and driven by Raymond Torres collided with a van driven by Winston Smellie.After the impact, the van, which additionally contained Grace and Robert Smellie and the vehicle's owner, Enid Smellie, went out of control and collided with a vehicle driven by Wilfred Gibson.The parties conceded that Gibson was not at fault, and the issue on liability was whether the driver of the van, the driver of the tow truck, or both drivers were negligent.In one suit, Grace and Robert sued Torres and Gulf.In the second suit, Gibson sued Winston, Torres, and Gulf.Winston and Gulf filed cross-claims against each other for contribution and Gulf filed a third party complaint against Enid who counterclaimed for damages arising from her personal injuries and property damage.

On appeal, we address only that claim which we consider meritorious.As discussed below, we agree with Winston and Enid Smellie that it was improper to permit the challenge of a black juror, Mr. Palmer, for the stated purpose of seating a Latin juror.To the extent that this analysis controls the rights and obligations of the various parties, reversal for a new trial is mandated.

At trial, the court designated a total of eighteen peremptory challenges allowed to all parties.Gibson and Torres were each given three peremptories.Also, three were to be split between Gibson and Torres.Counsel for Gibson allowed Torres to utilize these additional challenges.Winston, Grace, and Enid were given three peremptory challenges each.A total of forty prospective jurors were selected for the venire.Five of these veniremen were black.The court struck one for cause.Gibson's counsel exercised a peremptory challenge as to a second.Two were stricken by Torres.One was seated.Thereafter, counsel for defendant, Winston, objected that codefendant Torres had systematically excluded blacks from the jury.Winston argued that Torres and Gibson whose interests were aligned, conferred in their jury selection, exercising their challenges in a racially discriminatory fashion.Defendant Torres raised the same objection as to the Smellies' striking of Latin jurors, but he did not pursue that issue on appeal and we do not address it.

The trial court conducted an inquiry to determine whether jurors had been challenged in a discriminatory manner.Counsel for Gibson was asked to explain why he struck the first black from the jury pool.Counsel stated that she was stricken because she was the only juror without a driver's license and he did not want a juror without driving experience seated.The court ruled this was reasonable.As to the second black, counsel stated that he did not want that juror seated because he had made a past accident claim and had a second claim pending.The court concluded that challenge also was not based solely on race.The court then requested Torres to explain why he struck the third black, Mr. Palmer.Counsel stated his fear that Palmer, who was employed in a managerial position, would not identify with Torres, a working man.The court rejected this explanation after counsel for Winston pointed out that a white managerial person was left on the jury.Counsel for Torres then stated: "In light of the striking of all the other Latins on a jury and for no other reasons, I can strike him (Palmer) to get to the next Latin on the panel."The trial court erroneously let the challenge stand.

As outlined in State v. Neil, 457 So.2d 481(Fla.1984), the initial presumption is that peremptories are exercised in a constitutionally proper manner.This presumption can be overcome by demonstrating in a timely manner that a challenged person is the member of a distinct racial group and that it is likely that he or she has been challenged solely on the basis of race.If a defendant can show this, the trial judge must determine whether there is a substantial likelihood that the peremptory challenge is being used on the ground of race alone.If it is determined that such a likelihood exists, then the burden shifts to the attorney challenging the prospective juror to show, in response to inquiry by the trial court, that the peremptory challenge in question was not exercised solely on the basis of the prospective juror's race.To carry this burden, counsel must demonstrate "a 'clear and reasonably specific' racially neutral explanation" for the peremptory challenge.State v. Slappy, 522 So.2d 18, 22(Fla.1988), cert. denied, Florida v. Slappy, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909(1988)(quotingBatson v. Kentucky, 476 U.S. 79, 98, n. 20, 106 S.Ct. 1712, 1724, n. 20, 90 L.Ed.2d 69(1986));seeThompson v. Thompson, 550 So.2d 496(Fla. 4th DCA1989).

As the supreme court pointed out in Slappy, 522 So.2d at 18, what constitutes a "likelihood that the challenge is racially motivated under Neil does not lend itself to precise definition.To aid in this decision, the Slappy court adopted a nonexclusive list of five factors which would weigh against the legitimacy of a race neutral explanation.Those factors are identified as:

(1) alleged group bias not shown to be shared by the juror in question, (2) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror, (3) singling the juror out for special questioning designed to evoke a certain response, (4)the prosecutor's reason is unrelated to the facts of the case, and (5) a...