Stephens v. State, 89-499
| Decision Date | 05 April 1990 |
| Docket Number | No. 89-499,89-499 |
| Citation | 559 So.2d 687 |
| Parties | 15 Fla. L. Weekly D897 Almertis STEPHENS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Nancy L. Showalter, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant seeks reversal of his judgment of conviction and sentence for armed robbery (two counts), aggravated assault and assault. We affirm in part, reverse in part, and remand.
The appellant argues that the trial court erred in accepting the prosecutor's reasons for exercising its peremptory challenges to exclude three black men from the jury panel. Appellant made a timely objection to the prosecution's use of its peremptory challenges, and the trial court conducted an inquiry pursuant to State v. Neil, 457 So.2d 481 (Fla.1984). The prosecution stated that two of the challenged jurors were excused because of prior criminal activity. More specifically, the prosecution excused Juror 169 because he had "a record," although the prosecution did not know what it was. Juror 198 was excused because he had a 1973 arrest for armed robbery, although the prosecution was not certain that a conviction was ever obtained for that offense.
In State v. Neil, supra, the Supreme Court held that peremptory challenges are presumed to have been exercised in a nondiscriminatory manner, but upon a timely demonstration that a party has used its peremptory challenges against a distinct racial group and that there is a strong likelihood that the challenged veniremen were excused solely because of their race, the trial court is to evaluate the presumption that the peremptory challenges were not racially motivated. 457 So.2d at 486. If a trial court believes that there is a "likelihood" that peremptory challenges were improperly used, then the burden shifts to the party exercising its peremptories to demonstrate that the challenged veniremen were excused for a reason besides race. Id. at 486-487. Such a reason need not be equivalent to a challenge for cause. For example, "[i]f the party [exercising its peremptory challenges] shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue." Id. at 487. "Within the limitations imposed by State v. Neil, the trial judge necessarily is vested with broad discretion in determining whether peremptory challenges are racially intended." Reed v. State, 15 FLW S115, S116 (Fla. March 1, 1990).
In State v. Slappy, 522 So.2d 18, 21 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), the Supreme Court resisted the "temptation to craft a bright line test" for determining what constitutes a "likelihood" under Neil that a peremptory challenge has been exercised in a discriminatory manner. Once a trial court has concluded that there is a likelihood of improper use, there must be a rebuttal consisting of a " 'clear and reasonably specific' racially neutral explanation of 'legitimate reasons' for the state's use of its peremptory challenges. Id. at 22, quoting, Batson v. Kentucky, 476 U.S. 79, 96-98 & n. 20, 106 S.Ct. 1712, 1722-24 & n. 20, 90 L.Ed.2d 69 (1986). 1 The trial court is to evaluate the credibility of the party offering the explanation as well as the credibility of the asserted reasons, and such an evaluation should be made "in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record." Id. In order to demonstrate "clear," "reasonably specific" and "legitimate" reasons, the proffered reasons must be neutral, reasonable, and not pretextual. Id.
The Supreme Court listed in Slappy five factors which, if present, would "tend" to show that the reason given for challenging a juror was not actually supported by the record or was pretextual: (1) an alleged group bias not shown to be shared by the juror in question; (2) failure to examine a juror or conducting only a perfunctory examination, assuming the juror had not already been questioned by the trial court or opposing counsel; (3) singling the juror out for special questioning; (4) the prosecutor's reason is unrelated to the facts of the case, and (5) the challenge is based on reasons equally applicable to a juror who was not challenged. Id.
In Tillman v. State, 522 So.2d 14 (Fla.1988), the Supreme Court observed that in some instances the trial court may accept a prosecutor's assertion of fact without further record support. The Supreme Court gave as an example the situation where a prosecutor represents to the trial court that a prospective juror has been convicted of a crime; the Supreme Court noted that such a reason may be accepted without requiring a copy of the judgment of conviction. Id. at 17, n. 1.
In the case before us, the trial court implicitly held that the appellant had demonstrated a likelihood of improper use of peremptories by the prosecution for the trial court called upon the prosecutor to state his reasons for challenging three black men. As noted, the trial court allowed Juror 169 to be excused because he had a criminal record, and Juror 198 was excused because he had a 1973 arrest for armed robbery. Therefore, the question before us is whether the record reflects that the trial court abused its discretion in finding the prosecution's reasons for a peremptory challenge to be sufficient.
We are not persuaded that the trial court erred when it allowed Juror 169 to be excused despite the lack of record support for the prosecution's assertion that this prospective juror had a record. Further, while the prosecutor in the instant case did not state on the record whether the arrest of Juror 198 resulted in conviction, we do not believe the trial court erred in finding this explanation reasonable in this case given the fact that the prior arrest was for armed robbery, which is the primary offense with which appellant was charged. Both reasons are quite analogous to the example given in Tillman, and the prosecution's conduct does not suggest that any of the Slappy factors are applicable.
As for the third venireman excused, Juror 178, the prosecutor stated that because he had apparent difficulty reading the jury questionnaire, the prosecutor was concerned that this prospective juror would have difficulty with the jury instructions. The trial judge indicated that he had also observed this juror's difficulty with the questionnaire. In Tillman, the court noted that a trial judge "is certainly permitted to place in the record his observations to support a prosecutor's reasons for striking a juror." 522 So.2d at 17, n. 1. We are not persuaded that the trial court erred in finding this reason race-neutral and reasonable in the instant case.
In its brief, appellant argues that Juror 178 was singled out for special questioning designed to elicit a certain response, which is one of the factors identified in Slappy as tending to show that a peremptory challenge was not used in a race-neutral fashion. The special questions asked of this prospective juror were how long he had been employed in construction and whether he had attended a local high school. The appellant does not indicate and we fail to perceive what certain response the prosecutor was attempting to elicit so as to provide a pretext for excusing this venireman.
Recognizing that we are reviewing a trial court's exercise of its discretion, we are mindful of the Supreme Court's recent observation that "[i]n trying to achieve the delicate balance between eliminating racial prejudice and the right to exercise peremptory challenges, we must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a 'feel' for what is going on in the jury selection process." Reed v. State, supra at S116. In sum, we have not been shown that the record indicates the jury selection process failed to meet the requirements of Neil.
Appellant argues further that the trial court impermissibly allowed comment on his right to remain silent. During the proffer of the testimony of Detective Rutherford, who interviewed appellant shortly after his arrest, appellant objected to the eliciting of the statement allegedly made by him to Rutherford: "I told you I did it; I don't have anything else to say." The trial court initially sustained the objection, but later concluded that the statement could be deemed an admission of some sort and would apparently allow the statement on that basis. The appellant preserved his objection, and the statement at issue was elicited on direct examination by the state.
As explained in Jackson v. State, 522 So.2d 802, 807 (Fla.1988), the Supreme Court has adopted "a very liberal rule" for determining what constitutes a comment on silence. "If the comment is 'fairly susceptible' of being interpreted by the jury as a comment on the defendant's exercise of his right to remain silent it will be treated as...
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