Spencer v. State, 2D14–316.
| Decision Date | 18 March 2016 |
| Docket Number | No. 2D14–316.,2D14–316. |
| Parties | Tavares Wayntel SPENCER, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
Tavares Wayntel Spencer, Jr., appeals his judgments and sentences for attempted first-degree murder, robbery with a firearm, aggravated battery with great bodily harm, and aggravated assault with a deadly weapon. The only issue that he raises on appeal is whether the trial court properly ruled upon his objections to the State's exercise of two peremptory challenges of African–American members of the venire. This case requires this court to consider the actions that must be taken by the opponent of a peremptory challenge to preserve a claim under Melbourne v. State, 679 So.2d 759 (Fla.1996), after the proponent of the challenge provides a race-neutral reason. In other words, it requires us to consider the actions the opponent must take to preserve a claim of error during step 3 of the Melbourne procedure. We conclude that the supreme court in Hayes v. State, 94 So.3d 452 (Fla.2012), has not placed an automatic burden on the trial court to perform a full genuineness analysis on the record in every instance in which a party objects to a peremptory challenge and the proponent provides a facially neutral reason. If an opponent wants the trial court to determine whether a facially neutral reason is a pretext, the opponent must expressly make a claim of pretext and at least attempt to proffer the circumstances that support its claim. Because the defendant did not preserve a Melbourne issue in this manner, we affirm.
Although the issue on appeal is limited to events during jury selection, the legal analysis used to test the propriety of a peremptory challenge can be based to some degree on the nature of the case and the factual issues that will confront the jury. Thus, we briefly explain the evidence at the trial in this case.
When Mr. Spencer was sixteen years old, he met the victim, who was a few years older than Mr. Spencer. Both Mr. Spencer and the victim are African–American. On the day that they met, they texted extensively about the possibility of a sexual encounter. The victim was hoping to be compensated for this encounter. Only after a number of communications did the victim disclose her transgender status. This complication did not end the communications, and the two ultimately met in person the following day. Mr. Spencer led the victim into a secluded area. At this point in the story, the victim's recollection of the incident and Mr. Spencer's are in complete conflict.
The victim testified that Mr. Spencer pointed a handgun at her and ordered her to the ground. She gave him her cellphone, and he took her purse. He emptied her purse and ultimately took both her cellphone and her wallet, which contained a small amount of money. While she was still on the ground, he fired the gun twice, striking her in the hip with one shot. She got up and ran, jumping a fence. Mr. Spencer was running behind her, and he fired the gun another three or four times. She believed one bullet grazed her back. She ran to an occupied home, and Mr. Spencer did not pursue her further.
Mr. Spencer testified at trial. He claimed that the victim was actually the one who cornered him in the secluded area. He retreated to the fence. According to Mr. Spencer, the victim was making unwanted sexual advances and would not stop. To defend himself, Mr. Spencer pulled out a .22 caliber handgun that he had gotten from a friend the night before for protection. He pulled out the gun because he was afraid. He testified that the victim told him the handgun was unloaded, and she tried to take the gun from him when it accidentally discharged. He then fired another warning shot in the air. He fled without taking any property from the victim.
The victim's testimony was more consistent with the physical evidence and the text messages from both cellphones, which were obtained from the wireless providers and introduced into evidence. The jury apparently accepted the victim's version and found Mr. Spencer guilty. Due to the handgun, Mr. Spencer was sentenced to four concurrent twenty-five-year terms of imprisonment.
During voir dire, the State used peremptory challenges to strike at least two African–American members of the venire. When the State used a peremptory challenge on venireperson 16, the transcript reflects the following:
Shortly thereafter, the State used a peremptory challenge to strike venireperson 11, who was also African–American. As to this strike, the transcript reflects the following:
At the end of the selection process when accepting the jury, Mr. Spencer's attorney made a proper Joiner objection concerning these two peremptory challenges. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993). Following entry of the judgments and sentences, Mr. Spencer appealed to this court.
The legal literature addressing methods to avoid discrimination in peremptory challenges is extensive. In this opinion, we will not address the developments before Melbourne v. State, 679 So.2d 759 (Fla.1996), but the earlier cases warrant study. See, e.g., State v. Johans, 613 So.2d 1319 (Fla.1993) ; State v. Slappy, 522 So.2d 18 (Fla.1988), receded from by Melbourne, 679 So.2d at 765 ; State v. Neil, 457 So.2d 481 (Fla.1984), receded from in part by Johans, 613 So.2d at 1321.
After the U.S. Supreme Court adopted a three-step process in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), to clarify the procedures for handling a Batson2 challenge in federal court, the Florida Supreme Court adopted a comparable three-step procedure for use in Florida. See Melbourne, 679 So.2d at 763–65. In Hayes v. State, 94 So.3d 452 (Fla.2012), the supreme court extensively discussed and clarified the procedure articulated in Melbourne, but it did not actually change the procedure.
In both the trial courts and the appellate courts, two important rules set the backdrop for this process: (1) peremptory challenges are presumed to be exercised in a nondiscriminatory manner and (2) throughout the process, the burden of persuasion never leaves the opponent of the strike to prove purposeful discrimination. See Hayes, 94 So.3d at 461.
The supreme court articulated the three-step process in Melbourne as follows:
Melbourne, 679 So.2d at 764 (footnotes omitted).
The trial court's decision is reviewed on appeal with a rather deferential standard of review. As the supreme court recently summarized in Poole v. State, 151 So.3d 402, 409 (Fla.2014) :
A trial court's decision to allow a peremptory strike of a juror is based primarily on an assessment of credibility. King v. State, 89 So.3d 209, 229 (Fla.2012) (citing Melbourne v. State, 679 So.2d 759, 764 (Fla.1996) ), cert. denied, ––– U.S. ––––, 133 S.Ct. 478, 184 L.Ed.2d 300 (2012). As a reviewing court, this Court must “acknowledge that peremptory challenges...
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