Smith v. State, s. 88-2031

• Citation: 562 So.2d 787
• Decision Date: 29 May 1990
• Docket Number: 88-2099,Nos. 88-2031,s. 88-2031
• Parties: 15 Fla. L. Weekly D1509 Charles SMITH and David Eugene Brown, Appellants, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 787

562 So.2d 787

15 Fla. L. Weekly D1509

Charles SMITH and David Eugene Brown, Appellants, v. STATE of Florida, Appellee.

Nos. 88-2031, 88-2099.

District Court of Appeal of Florida,

First District.

May 29, 1990.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellants.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Charles Smith and David Eugene Brown appeal their convictions in these consolidated cases, contending that they were denied a fair trial because the state peremptorily challenged potential black jurors for reasons that were not race neutral. We affirm.

The cases against Smith and Brown were consolidated for appeal. After the state had exercised several peremptory challenges against black venire persons, the defense counsel for Smith asked "the record show" that the number two juror was a black male and that every person the state had stricken from the panel was black except one. No objection was made by either defense counsel nor was a NEIL ¹ inquiry requested. Based on the statement by defense counsel, the trial judge announced that he would ask the state to explain its reasons for the challenges. The state contended no preliminary showing had been established by the defense to require the state to explain its reasons but agreed to go ahead "voluntarily." At this point in the proceedings, defense counsel had given no reason or basis for a Neil inquiry other than stating for the record that a number of black jurors were peremptorily challenged. In State v. Slappy, 522 So.2d 18 (Fla.) cert. denied 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), the supreme court said:

In Neil therefore we established the following test:

A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race.

Id. at 21. (Emphasis added.) No timely objection was made here, and no argument was made showing a likelihood that the potential jurors had been challenged solely because of their race. Slappy holds that the spirit and intent of Neil was not to obscure the issue in procedural rules governing the shifting burdens of proof but to provide broad leeway in allowing parties to make a prima facie showing that a "likelihood" of discrimination exists. As the state agreed voluntarily to proceed with the Neil inquiry, we will pass upon the merits of the alleged discrimination. However, defense counsel should be aware that the Neil and Slappy procedures should be complied with in order to properly preserve the issue for appeal.

After the state gave its reasons for its peremptory challenges, defense counsel Adams, representing the defendant Brown, made no argument at all and made no effort to show that the state's peremptory challenges were racially motivated. Counsel Andux, representing the defendant Smith, made the following argument to demonstrate the likelihood that the challenges were racially motivated:

THE COURT: All right, Mr. Andux, do you have anything you wish to say?

MR. ANDUX: Just briefly, Judge, I think especially as to Clayton Bolton, basically, the state has knocked off eight of the ten used on blacks.

THE COURT: Six, they used 6 on the main panel, then one alternate.

MR. ANDUX: Yes, sir. And that was, I believe, going to be the other people that were left on, Bobby Jackson, they had people arrested in their families.

MR. BATEH: Mr. Jackson is only 40 years old. Mr. Jackson appears to be in his 50's or 60's. And the crime was 40 years ago.

THE COURT: Go ahead.

MR. ANDUX: I would also point out the lack of questions by the state as to these people, the reason they were knocked off.

And I would maintain that the lack of questions resulted in too many black people being knocked off, and the reason some of them--

MR. BATEH: Your Honor--

MR. ANDUX: --I'm not going to say wrong or right, but a couple of people did get knock off--

MR. BATEH: Your Honor--

THE COURT: Well, didn't you excuse some black jurors that, therefore, precluded them from keeping them on the jury, Mr. Andux?

MR. ANDUX: I exclude one black juror.

THE COURT: Why did you do that?

MR. ANDUX: Why did I excuse Daniels? Why did I--

. . . . .

MR. BATEH: Your Honor, I did want to mention--106, Sands, is a black female. And we did want to seat Ms. Daniels, 383, but that person was challenged by the defense.

THE COURT: Anybody have anything else they wish to say ?

MR. ANDUX: No, sir, Judge. We just--I move the panel be stricken.

THE COURT: And we start over?

MR. ANDUX: Yes, sir.

THE COURT: You don't think you can get a fair trial with this panel ?

MR. ANDUX: Judge, that's all of the argument I have.

THE COURT: Well, I don't think that I'm satisfied. The composition of this jury is sufficient for both of your clients to give both a fair trial.

Each of you have had a number of fair challenges, you used 20 (sic) apiece. And so, it's going to be difficult to have--It may be the youthfulness of some, but given the ages of your clients, and their appearance, my prospective, so...