Smith v. State, Nos. 89-1954

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; SCHWARTZ
• Citation: 574 So.2d 1195,16 Fla. L. Weekly 460
• Parties: 16 Fla. L. Weekly 460 Robert SMITH and Lem Adam Washington, Appellants, v. The STATE of Florida, Appellee.
• Docket Number: 89-1818,Nos. 89-1954
• Decision Date: 12 February 1991

Page 1195

574 So.2d 1195 16 Fla. L. Weekly 460 Robert SMITH and Lem Adam Washington, Appellants,
v.
The STATE of Florida, Appellee. Nos. 89-1954, 89-1818. District Court of Appeal of Florida,
Third District. Feb. 12, 1991.

Bennett H. Brummer, Public Defender, Robert Kalter, Asst. Public Defender, and Ronald S. Lowy, Sp. Asst. Public Defender, for appellants.

Robert A. Butterworth, Atty. Gen. and Monique T. Befeler, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.

REVISED OPINION

SCHWARTZ, Chief Judge.

Smith and Washington were tried together and convicted of the armed robbery of a Farm Store. We reverse Smith's conviction for a new trial because of a Neil- Slappy violation; affirm Washington's conviction because he did not raise the pertinent objections below, but order his resentencing after remand.

Page 1196

Smith

During the voir dire, the state exercised three peremptory challenges to exclude three blacks from the prospective jury. Counsel for Smith--pointedly not joined by Washington's attorney--raised the now familiar Neil objection that the challenge had been exercised on the basis of the jurors' race. The trial court apparently, and no doubt correctly, agreed that a prima facie showing to that effect had been made and, pursuant to State v. Neil, 457 So.2d 481 (Fla.1984), ordered the prosecutor to explain the grounds upon which the black jurors had been stricken. Accordingly, the prosecutor then propounded supposedly race-neutral reasons for the challenges. ¹ The trial judge, however, on the ground that other black jurors remained on the panel, then specifically declined to rule, as Smith requested, upon the sufficiency of the explanation. He said:

At this point, there are three blacks on the jury, okay? They are not entitled to a jury of all black people. There are three black people on the jury and I am going to leave it at that. I am not going to rule with regard to whether these other strikes are correct or not at this time.

This refusal to rule was clearly reversible error.

It is entirely established Florida law that, once a Neil inquiry has been, as it was here, appropriately initiated, it is incumbent upon the trial judge to evaluate the credibility of the explanation for the peremptory challenges and "to determine whether the proffered reasons, if they are neutral and reasonable, are indeed supported by the record." Tillman v. State, 522 So.2d 14, 16-17 (Fla.1988). Moreover, because even the exercise of a single racially-motivated prosecution strike is constitutionally forbidden, State v. Slappy, 522 So.2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), it does not matter for these purposes whether other black jurors actually serve on the defendant's jury. Slappy, 522 So.2d at 21; see also Stubbs v. State, 540 So.2d 255 (Fla. 2d DCA 1989); Moriyon v. State, 543 So.2d 379 (Fla. 3d DCA 1989), review dismissed, 549 So.2d 1014 (Fla.1989). Hence there can be no question of the reversible incorrectness of a lower court's declination to rule, one way or the other, as to the Slappworth yness of the proffered explanation. Thompson v. State, 548 So.2d 198, 202 (Fla.1989), which is procedurally almost identical to this situation, ² squarely so holds. For this reason, Smith's conviction is reversed for a new trial. ³

Washington

We cannot afford similar relief to Washington. This is because, exactly contrary to the circumstances in Charles v. State, 565 So.2d 871 (Fla. 4th DCA 1990), the Neil- Slappy objection was raised solely by defendant Smith and was not also

Page 1197

raised, joined or adopted in any way by Washington, who, to the contrary, made a personal statement that he was satisfied with the result of the jury selection process. Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977); Wright v. State, 318 So.2d 477 (Fla. 4th DCA 1975), cert. denied, 334...