Spencer v. State

• Decision Date: 25 January 2018
• Docket Number: No. SC16–1599,SC16–1599
• Citation: 238 So.3d 708
• Parties: Tavares W. SPENCER, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

238 So.3d 708

Tavares W. SPENCER, Jr., Petitioner,

v.STATE of Florida, Respondent.

No. SC16–1599

Supreme Court of Florida.

[January 25, 2018]

Howard L. "Rex" Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, John M. Klawikofsky, Bureau Chief, Marilyn Muir Beccue, and Bilal A. Faruqui, Assistant Attorneys General, Tampa, Florida, for Respondent

QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Spencer v. State, 196 So.3d 400 (Fla. 2d DCA 2016). In its decision the district court certified a question to be of great public importance. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The facts of this case were provided in the decision below. Relevant to our discussion, Tavares Wayntel Spencer, Jr., was convicted for attempted first-degree murder, robbery with a firearm, aggravated battery with great bodily harm, and aggravated assault with a deadly weapon and sentenced to four concurrent twenty-five year terms of imprisonment. Spencer, 196 So.3d at 401–02. On appeal, Spencer challenged the trial court's rulings on his objections to the State's exercise of two peremptory challenges of African–American venirepersons. Id. at 401. The Second District held that the trial court was not required to perform a full genuineness analysis on the record in every instance in which a party objects to a peremptory challenge and that the opponent "must expressly make a claim of pretext and at least attempt to proffer the circumstances that support its claim." Id. The Second District therefore held that Spencer failed to preserve his claim and certified the following question:

DURING A MELBOURNE ¹ HEARING, WHEN A TRIAL COURT FINDS THAT THE PROPONENT'S REASON FOR A PEREMPTORY CHALLENGE IS FACIALLY NEUTRAL, IS IT THE BURDEN OF THE OPPONENT (1) TO CLAIM THE REASON IS A PRETEXT, (2) TO PLACE INTO THE RECORD THE CIRCUMSTANCES SUPPORTING ITS POSITION, AND (3) TO OBJECT IF THE TRIAL COURT'S RULING DOES NOT CONTAIN ADEQUATE FINDINGS ON THE ISSUE OF GENUINENESS?

Id. at 411.

The real issue presented here is whether our decision in Melbourne requires a trial court to strictly adhere to the procedure as outlined in Melbourne and its progeny. In this instance, it would be elevating form over substance. Therefore, we agree with the Second District that it does not. We hereby approve the decision of the Second District but not its analysis. We write to clarify that preservation of an issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not require anything more than what we have previously articulated. See Melbourne, 679 So.2d at 765 (citing Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) ). The Second District's opinion spells out a process that, while possibly ideal, is more than what is necessary to preserve the issue for appellate review.² We reiterate, however, that trial courts should ideally follow each step—in order—to avoid the type of confusion that is at issue in this case.

The issue presented in the certified question concerns the exclusion of two African–American jurors through the exercise of peremptory strikes. Spencer challenged the strikes as racially motivated and the trial court overruled his objection.

Peremptory challenges, while not a constitutionally protected right, have been recognized as "one of the most important of the rights secured to the accused." Busby v. State, 894 So.2d 88, 98 (Fla. 2004) (quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled in part by Batson, 476 U.S. at 93–99, 106 S.Ct. 1712 ); see also Hayes v. State, 94 So.3d 452, 459 (Fla. 2012). Peremptory and for-cause challenges "are the primary tools by which parties remove unfavorable jurors from the jury panel." Hayes, 94 So.3d at 460. Unlike for-cause challenges, however, peremptory challenges "are limited in number and have traditionally been exercised according to a party's unfettered discretion." Id. (citing Busby, 894 So.2d at 99 ). The only limitation to a party's discretion in the use of peremptory challenges is that they may not be used to purposefully discriminate against members of a distinctive group by excluding them from service. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). "Jurors are not fungible. Each juror has a constitutional right to serve free from discrimination.

The striking of a single African–American juror for racial reasons violates the Equal Protection Clause." Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) (citing State v. Slappy, 522 So.2d 18, 21 (Fla. 1988) ).

In State v. Neil, 457 So.2d 481 (Fla. 1984), receded from in part on other grounds by State v. Johans, 613 So.2d 1319, 1321 (Fla. 1993), we held that the exercise of a peremptory challenge solely to exclude a venireperson on the basis of race violated the right of both the defendant and the State to a trial by an impartial jury under the Florida Constitution. Id. at 486. Neil provided a test for trial courts to use to determine whether a party's exercise of a peremptory challenge was used as a pretext for racial discrimination. Id. at 485 ("The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. 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 because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race." (footnote omitted)).

Thereafter, the United States Supreme Court issued its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which reaffirmed the principle that the State's³ deliberate denial to African Americans of participation as jurors on account of race violated the Equal Protection Clause. Id. at 84, 106 S.Ct. 1712 (citing Swain v. Alabama, 380 U.S. 202, 203–04, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ). The Supreme Court sought to balance the historical privilege of peremptory challenges free of judicial control and the constitutional prohibition against excluding potential jurors on the basis of their race. Id. at 91, 106 S.Ct. 1712. After rearticulating the standards for assessing a prima facie case of discriminatory peremptory strikes, the Batson Court explained that the prosecution "must articulate a neutral explanation related to the particular case to be tried" and then the trial court "will have the duty to determine if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.

Following Batson, "this Court modified the test for evaluating peremptory challenges under Neil." Dorsey v. State, 868 So.2d 1192, 1197 (Fla. 2003) (citing State v. Slappy, 522 So.2d 18 (Fla. 1988), receded from in part on other grounds by Melbourne, 679 So.2d at 765 ). In Slappy, we provided that the proper inquiry required a "clear and reasonably specific" race-neutral explanation. Slappy, 522 So.2d at 22 (quoting Batson, 476 U.S. at 98 n.20, 106 S.Ct. 1712 ). We held that instead of accepting the proffered reasons at face value, the trial court must "evaluate those reasons as [it] would weigh any disputed fact." Id. Slappy provided that the trial court was required to determine both whether the reason was neutral and reasonable and whether the record supported the absence of pretext. Id. at 23.

In Floyd v. State, 569 So.2d 1225 (Fla. 1990), we required that defense counsel challenge the accuracy of an explanation for a strike, noting that even a patently false on-the-record, race-neutral explanation must be properly preserved for appellate review. Id. at 1229–30.

It is the state's obligation to advance a facially race-neutral reason that is supported in the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced. However, when the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason. Here, the error was easily correctable. Had defense counsel disputed the state's statement, the court would have been compelled to ascertain from the record if the state's assertion was true. Had the court determined that there was no factual basis for the challenge, the state's explanation no longer could have been considered a race-neutral explanation, and [the juror] could not have been peremptorily excused. Because defense counsel failed to object to the prosecutor's explanation, the Neil issue was not properly preserved for review.

Id.; see also Wright v. State, 586 So.2d 1024, 1027 (Fla. 1991). In addition to the initial objection, and ensuring that any factual dispute is noted for the record, we held that the opponent of a peremptory strike has a duty to renew the objection in order to preserve the issue for appellate review. Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) (holding that to properly preserve the issue, an opponent of a peremptory strike must renew his or her objection or accept the jury subject to his or her earlier objection); see also Melbourne, 679 So.2d at 765 ("Melbourne failed to preserve this issue for review because she did not renew her objection before the jury was sworn." (citing Joiner, 618 So.2d at 176 )).

In 1995, the United States Supreme Court adopted procedural refinements to the Batson rule in Purkett v. Elem, 514 U.S. 765, 115 S.Ct....