State v. Slappy

• Decision Date: 10 March 1988
• Docket Number: No. 70331,70331
• Citation: 522 So.2d 18,13 Fla. L. Weekly 184
• Parties: 13 Fla. L. Weekly 184 STATE of Florida, Petitioner, v. Charles SLAPPY, Respondent.
• Court: Florida Supreme Court

Page 18

522 So.2d 18

13 Fla. L. Weekly 184

STATE of Florida, Petitioner, v. Charles SLAPPY, Respondent.

No. 70331.

Supreme Court of Florida.

March 10, 1988.

Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., Miami, for petitioner.

Michael H. Tarkoff of Flynn and Tarkoff, Miami, for respondent.

BARKETT, Justice.

We have for review Slappy v. State, 503 So.2d 350 (Fla. 3d DCA 1987), based on express and direct conflict with Blackshear v. State, 504 So.2d 1330 (Fla. 1st DCA 1987). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We approve the decision below.

The issue in this case is the appropriate procedure to follow when a claim of racial discrimination through the exercise of peremptory challenges has been raised.

Slappy, a black defendant, was tried for carrying a concealed firearm. Four of the state's six peremptory challenges were used to exclude blacks from the panel, although all four had indicated an ability to serve as fair and impartial jurors. After the fourth challenge, the defense objected and the following exchange then occurred:

THE COURT: All right. At this particular juncture, Ms. Lumpkin is the fourth black juror excused by the state.

State, why are you excusing Ms. Lumpkin?

ASSISTANT STATE ATTORNEY: She said she thinks she knew [the defense counsel] from previously in her response. Whether or not she did or not did not--I don't want someone on a defense--

THE COURT: Why did you excuse Ms. Jordan?

ASSISTANT STATE ATTORNEY: She didn't seem to be secure about sitting on a jury. She asked questions, I think, twice, whether or not she needs to know anything about the law or criminal justice system. Her health doesn't seem to be very good. I just didn't want someone like that on the jury.

THE COURT: How about Mr. Williams?

ASSISTANT STATE ATTORNEY: Both Mr. Williams and Mrs. Williams I excused because they're both teachers, assistant teachers, and both of them at elementary schools. That to me indicates a degree of liberalism that I prefer not have [sic] on a jury.

THE COURT: Liberalism?

ASSISTANT STATE ATTORNEY: Yeah, maybe more sympathetic to people who go astray than people who don't have to deal with kids in a classroom. Always getting into trouble.

DEFENSE COUNSEL: Of course. They accepted Mr. Farrar, who is also a teacher, and I excused him.

ASSISTANT STATE ATTORNEY: He was also in the army.

THE COURT: You never heard of liberals in the army?

ASSISTANT STATE ATTORNEY: I think you are less likely to find help in the military than elementary school.

503 So.2d at 352.

After this exchange, the trial court accepted the state's explanations and denied the motion to strike the panel. Id. On appeal, the Third District held that the trial court erroneously believed it was bound by the state's facially neutral explanations. The district court essentially found that these explanations were not supported by the record, and remanded for a new trial.

Despite continuing efforts, racial and other discrimination remains a fact of this nation's evolving history. The United States Supreme Court has characterized it as a problem needing unceasing attention. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1775, 95 L.Ed.2d 262, rehearing denied, 482 U.S. 920, 107 S.Ct. 3199, 96 L.Ed.2d 686 (1987). As the Supreme Court elsewhere has noted:

[W]e ... cannot deny that, 114 years after the close of the War Between the States ..., racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious.

Rose v. Mitchell, 443 U.S. 545, 558-59, 99 S.Ct. 2993, 3001, 61 L.Ed.2d 739 (1979).

One would think it unnecessary to point out again, as did the court in Batson v. Kentucky, 476 U.S. 79, 87-88, 106 S.Ct. 1712, 1717-18, 90 L.Ed.2d 69 (1986) (citation omitted) (quoting Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 308, 25 L.Ed. 664 (1879)), that "[d]iscrimination within the judicial system is [the] most pernicious." It would seem equally self-evident that the appearance of discrimination in court procedure is especially reprehensible, since it is the complete antithesis of the court's reason for being--to insure equality of treatment and evenhanded justice. Moreover, by giving official sanction to irrational prejudice, courtroom bias only enflames bigotry in the society at large.

The need to protect against bias is particularly pressing in the selection of a jury, first, because the parties before the court are entitled to be judged by a fair cross section of the community, and second, because our citizens cannot be precluded improperly from jury service. Indeed, jury duty constitutes the most direct way citizens participate in the application of our laws.

Unfortunately, the nature of the peremptory challenge makes it uniquely suited to masking discriminatory motives. See Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23. Traditionally, a peremptory challenge permits dismissal of a juror based on no more than "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another." 4 W. Blackstone, Commentaries 353 (1807). This ancient tradition, however, is to some degree inconsistent with the requirements of the Florida and federal constitutions. We thus cannot permit the peremptory's use when it results in the exclusion of persons from jury service due to constitutionally impermissible prejudice. To the extent of the inconsistency, the constitutional principles must prevail, notwithstanding the traditionally unlimited scope of the peremptory.

In interpreting our own Constitution, this Court in State v. Neil, 457 So.2d 481 (Fla.1984), clarified sub nom, State v. Castillo, 486 So.2d 565 (1986), recognized a protection against improper bias in the selection of juries that preceded, foreshadowed and exceeds the current federal guarantees. ¹ We today reaffirm this state's continuing commitment to a vigorously impartial system of selecting jurors based on the Florida Constitution's explicit guarantee of an impartial trial. See Art. I, § 16, Fla. Const.

Despite this commitment, much litigation has arisen over its application to the facts of particular voir dire examinations. As in this case, one of the most frequently litigated issues in both the federal and state courts is the burden of proof, its nature and who must bear it. See Batson, 476 U.S. at 90, 106 S.Ct. at 1719; Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967); Hernandez v. Texas, 347 U.S. 475, 478-81, 74 S.Ct. 667, 670-72, 98 L.Ed. 866 (1954); Akins v. Texas, 325 U.S. 398, 403-04, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, rehearing denied, 326 U.S. 806, 66 S.Ct. 86, 90 L.Ed. 491 (1945); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); State v. Jones, 485 So.2d 1283 (Fla.1986); Pearson v. State, 514 So.2d 374 (Fla. 2d DCA 1987); Floyd v. State, 511 So.2d 762 (Fla. 3d DCA 1987); Blackshear; Kibler v. State, 501 So.2d 76 (Fla. 5th DCA 1987).

This Court early had recognized the impossible burden imposed by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, rehearing denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), which had required a defendant to show discriminatory practices employed systematically in a number of similar cases or contexts. 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.

457 So.2d at 486 (based on Art. I, § 16, Fla. Const.) (footnote omitted).

Unfortunately, deciding what constitutes a "likelihood" under Neil does not lend itself to precise definition. It is impossible to anticipate and articulate the many scenarios that could give rise to the inference required by Neil and Batson. We know, for example, that number alone is not dispositive, nor even the fact that a member of the minority in question has been seated as a juror or alternate. United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987); United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986); Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986); Neil; Pearson; Floyd. Indeed, the issue is not whether several jurors have been excused because of their race, but whether any juror has been so excused, independent of any other. This is so because

the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.

Gordon, 817 F.2d at 1541. Accord David; Fleming; Pearson; Floyd. As the Eleventh Circuit has stated,

Batson restates the principle that " '[a] single invidiously discriminatory governmental act' is not 'immunized by the absence of such discrimination in the making of other comparable decisions.' " Batson, supra, 106 S.Ct. at 1722, quoting Arlington Heights v. Metropolitan Housing [Development] Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 564 n. 14, 50 L.Ed.2d 450 (1977).

Fleming, 794 F.2d at 1483. Accord Pearson.

We nevertheless resist the temptation to craft a brightline test. Such a rule could cause more havoc than the imprecise standard we employ today, since racial discrimination itself is not confined to any specific number of forms or effects. Instead, we affirm 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. Only in this way can we have a full airing of the reasons behind a peremptory strike,...