State v. Neil

• Decision Date: 27 September 1984
• Docket Number: Nos. 63899,63933,s. 63899
• Citation: 457 So.2d 481
• Parties: STATE of Florida, Petitioner, v. Jack NEIL, Respondent. Jack NEIL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 481

457 So.2d 481

53 USLW 2200

STATE of Florida, Petitioner, v. Jack NEIL, Respondent.

Jack NEIL, Petitioner, v. STATE of Florida, Respondent.

Nos. 63899, 63933.

Supreme Court of Florida.

Sept. 27, 1984.

Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., Miami, for petitioner/respondent.

Paul A. Louis, Ray Ellen Yarkin, John L. Zavertnik and Leonard H. Rubin of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, and Jesse J. McCrary, Jr., Miami, for respondent/petitioner.

Donald M. Middlebrooks, Talbot D'Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami; Thomas Atkins, Gen. Counsel and Charles E. Carter, Associate Gen. Counsel, Brooklyn, N.Y.; John D. Due, Jr., Legal Redress Chairman, Miami; and Gerald B. Cope of Arky, Freed, Stearns, Watson, Greer & Weaver, Miami, amici curiae for The Florida State Conference Of Branches Of The N.A.A.C.P. and Common Cause Of Florida.

McDONALD, Justice.

In Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983), the district court certified the following question to be of great public importance:

Absent the criteria established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), may a party be required to state the basis for the exercise of a peremptory challenge?

Id. at 52. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. Believing that it is time in Florida to hold that jurors should be selected on the basis of their individual characteristics and that they should not be subject to being rejected solely because of the color of their skin, we answer the question with a qualified affirmative and quash the district court's decision.

The state charged Neil, a black man, with second-degree murder and unlawful possession of a firearm. The charges stemmed from Neil's shooting of a black Haitian immigrant. For Neil's trial the jury pool consisted of thirty-five prospective jurors, thirty-one whites and four blacks. The state used peremptory challenges to remove the first three blacks called. The defense objected to each of these challenges and moved to strike the entire pool. After the state challenged the third black prospective juror, the court heard argument on whether the state's challenges were discriminatory and violated Neil's sixth amendment right to trial by an impartial jury. The court held that the state did not have to explain its challenges and denied the defense motion. The court did, however, give each side five additional peremptory challenges. The defense then used all of its peremptory challenges in an effort to reach the remaining black prospective juror, who eventually served as an alternate juror. The jury convicted Neil as charged.

On appeal Neil claimed that the trial court erred in denying his motion, thereby improperly allowing the state to exercise its peremptory challenges so as to exclude all blacks from his jury. The district court, however, held that Neil did not meet the requirements of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The court refused to adopt an alternate test derived from People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), finding Neil's argument in favor of those cases not to be compelling. Recognizing that this issue is troublesome and capable of repetition, however, the district court certified its question to this Court.

In Swain v. Alabama Swain claimed, among other things, that the state discriminated by systematically excluding blacks from petit juries. The Supreme Court stated that "purposeful discrimination may not be assumed or merely asserted," but must be proved. 380 U.S. at 205, 85 S.Ct. at 827. The court found

no reason ... why the defendant attacking the prosecutor's systematic use of challenges against Negroes should not be required to establish on the record the prosecutor's conduct in this regard, especially where the same prosecutor for many years is said to be responsible for this practice and is quite available for questioning on this matter.

Id. at 227-28, 85 S.Ct. at 839-40 (footnote omitted). In support of its holding the court reasoned that if peremptory challenges could be examined they would no longer be peremptory. ¹ The Court went on to say that

we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court.

Id. at 222, 85 S.Ct. at 836.

It appears that the Swain test has seldom if ever been met. See Annot., 79 A.L.R.3d 14 (1977). But see State v. Brown, 371 So.2d 751 (La.1979) (defendant made sufficient showing to establish prima facie discrimination). Additionally, Swain has received a considerable amount of criticism. E.g., Brown, McGuire, & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng. L. Rev. 192 (1978); Martin, The Fifth Circuit and Jury Selection Cases: The Negro Defendant and His Peerless Jury, 4 Hous.L.Rev. 448 (1966); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966). Although the United States Supreme Court recently denied certiorari in a case where Swain apparently could have been revisited, three members of that Court agreed that consideration of the issue by state and other federal courts would be helpful, McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (Stevens, J., concurring), while Justices Marshall and Brennan would have taken McCray and reconsidered Swain. ²

Numerous jurisdictions have considered the allegedly discriminatory use of peremptory challenges in the last few years. Most have adhered to the Swain test, have found no evidence of impropriety, or have found the complained-of peremptories to have been exercised because of specific bias. ³ Several courts, on the other hand, based on a synthesis of state constitutional provisions and more recent United States Supreme Court cases, have fashioned less stringent tests than that set out in Swain and have permitted inquiry into why a party exercised a peremptory challenge. ⁴

In People v. Wheeler the California Supreme Court traced the United States Supreme Court's path in its journey to holding that defendants have a right to impartial juries drawn from a cross-section of the community. ⁵ The court went on to rely on California law and held that Swain would not be followed in California courts. The court set out the following procedure to be used to show that peremptories have been exercised in a discriminatory manner. The party claiming discrimination must raise the point in a timely manner and make a prima facie case to the court's satisfaction by making as complete a record as possible, by establishing that the challenged persons are members of a cognizable group, and by showing "a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905. When this evidence has been presented, the court must determine if there is a reasonable inference that the challenges are being made solely on the basis of group bias. If the court determines that a prima facie case has been demonstrated, the party that exercised the questioned peremptories "must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses." Id. at 282, 583 P.2d at 765, 148 Cal.Rptr. at 906.

The Supreme Judicial Court of Massachusetts has also considered this issue and, shortly after Wheeler, came to much the same conclusion as the California court. In Commonwealth v. Soares the court held that using peremptory challenges "to exclude members of discrete groups solely on the basis of bias presumed to derive from that individual's membership in the group," violated the Massschusetts Constitution's guarantee of trial by an impartial jury. 377 Mass. at 488, 387 N.E.2d at 516. The Massachusetts court began with the presumption that peremptories will be exercised properly and held that either party could rebut that presumption by showing:

(1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.

Id. at 490, 387 N.E.2d at 517. If these criteria are met, the trial court must then decide whether to infer that the peremptories have been used to exclude persons based on group affiliation. If the court determines that the presumption of proper use has been rebutted, the person who exercised the peremptories must demonstrate otherwise.

Neil urges that we repudiate Swain and adopt a test derived from Wheeler and Soares. ⁶ The state, on the other hand, contends that doing so will open a Pandora's box of problems, including quota juries and an undesirable fundamental alteration of the jury system. We understand the state's concerns, but, while we do not fully embrace either Wheeler or Soares, we believe that an alternative to Swain is needed. ⁷

While quite similar to Wheeler and Soares, People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (1981), charts a more even course in the exercise of peremptory challenges. ⁸ After analyzing numerous United States Supreme Court cases and cases from several state courts, the New York court held that petit juries should

be selected in a manner that permits the exclusion of blacks only by means of either random selection or the challenging of prospective jurors, on the basis...