Whitby v. State, 3D04-1770.

Decision Date15 February 2006
Docket NumberNo. 3D04-1770.,3D04-1770.
Citation933 So.2d 557
PartiesEdgar Sylvester WHITBY, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.

Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The defendant, Edgar Sylvester Whitby, appeals his conviction for battery. As we are constrained by this court's opinions in Alsopp v. State, 855 So.2d 695 (Fla. 3d DCA 2003), and Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005), we reverse.

The defendant was charged with aggravated battery by knowingly or intentionally causing permanent disfigurement by throwing hot water on the victim. During jury selection, the State sought to back-strike prospective juror Lynn. The defense objected stating that Mr. Lynn, a white male, was a member of a protected class, and requested that the State provide a race-neutral reason. The trial court allowed the peremptory strike of prospective juror Lynn without requiring the State to proffer a race-neutral reason.

The defense then sought to challenge prospective juror Hayes for cause based upon her response that, as a result of her employment with the Drug Enforcement Agency ("DEA"), she would be biased in favor of a police officer when weighing his/her credibility. The State argued that Ms. Hayes should not be excused for cause because after further questioning, she had responded that she would not give a police officer's testimony more weight merely because he was a police officer. Before ruling on the cause challenge, the trial court brought juror Hayes back into the courtroom for further questioning. During this additional questioning, Ms. Hayes stated unequivocally that her verdict would be based upon the evidence presented. Based upon this response and her previous response that she would not give a police officer's testimony more weight merely because he was a police officer, the trial court denied the defendant's cause challenge of juror Hayes.

The jury found the defendant guilty of the lesser included offense of battery and he was sentenced to 300 days in jail. The defendant's appeal challenges the trial court's denial of his cause challenge as to juror Hayes and the trial court's failure to require the State to provide a race-neutral reason for its peremptory challenge of juror Lynn.

The standard for which we review a trial court's ruling on a cause challenge is abuse of discretion. Kessler v. State, 752 So.2d 545, 550 (Fla.1999). "A juror should be excused for cause if there is any reasonable doubt about the juror's ability to render an impartial verdict." Singleton v. State, 783 So.2d 970, 973 (Fla. 2001); see also Kessler, 752 So.2d at 550.

During voir dire, juror Hayes initially indicated that she would be biased in favor of a police officer's credibility. However, upon further questioning, she unequivocally stated that she would not give a police officer's testimony more weight due to his/her status as a law enforcement officer and that she would evaluate the case on the evidence presented. We, therefore, conclude that the trial court acted within its discretion by denying the defendant's cause challenge of Ms. Hayes. See Grullon v. N. Miami Med. Ctr., 780 So.2d 196 (Fla. 3d DCA 2001).

While we conclude that the trial court did not abuse its discretion in denying the defendant's cause challenge of Ms. Hayes, we reverse based upon the trial court's failure to conduct a Neil inquiry regarding the State's peremptory challenge of juror Lynn. In doing so, we express our concern, as other judges of this court have expressed in the past, that the present procedure, which was intended to simplify the process, has led to unnecessary reversals of otherwise error-free trials decided by clearly impartial juries.

In order to protect against racial discrimination in the jury selection process, the Florida Supreme Court in State v. Neil, 457 So.2d 481 (Fla.1984), provided the trial courts with a procedure to follow when determining whether a peremptory challenge is unlawfully being exercised on racial grounds:

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. 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. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective juror's race.

Neil, 457 So.2d at 486-87 (footnotes omitted)(emphasis added).

Over the years, when it became clear that trial courts were having a difficult time applying the procedure established in Neil, the Florida Supreme Court refined the procedure in State v. Johans, 613 So.2d 1319 (Fla.1993). The difficulty appeared to be especially with the application of that portion of the Neil test which required the opponent of the strike to show a strong likelihood that the challenged juror was being stricken solely based upon his race before triggering an inquiry by the court. Thus, in order to provide clear guidance to the trial courts, the Florida Supreme Court again simplified the procedure and deleted the requirement that the opponent of the strike show that there was a strong likelihood that the juror was being challenged solely because of his/her race:

In Florida, there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. Neil, 457 So.2d at 486. Consequently, we have held that a party concerned about the other party's use of peremptory challenges must make a timely objection, demonstrate on the record that the challenged person or persons are members of a distinct racial group, and show that there is a strong likelihood that those individuals have been challenged solely because of their race. Id. However, the case law that has developed in this area does not clearly delineate what constitutes a "strong likelihood" that venire members have been challenged solely because of their race.

. . .

Rather than wait for the law in this area to be clarified on a case-by-case basis, we find it appropriate to establish a procedure that gives clear and certain guidance to the trial courts in dealing with peremptory challenges. Accordingly, we hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. We recede from Neil and its progeny to the extent that they are inconsistent with this holding.

Johans, 613 So.2d at 1321 (emphasis added).

Thus, in Johans, the Florida Supreme Court eliminated the requirement in Neil that the party objecting to a particular peremptory challenge demonstrate or show that there is a strong likelihood that the peremptory challenge was racially motivated, and prospectively held that the objecting party only needs to allege that the peremptory challenge is being used in a racially discriminatory manner, in order to trigger an inquiry by the court.

Approximately two months after the Florida Supreme Court decided Johans, it noted in Valentine v. State, 616 So.2d 971 (Fla.1993), that it would be "far less costly in terms of time and financial and judicial resources to conduct a brief inquiry and take curative action during voir dire than to foredoom a conviction to reversal on appeal." Valentine, 616 So.2d at 974.

While the language in Valentine signaled the Court's intention to eliminate the requirement that the party objecting to a peremptory challenge, allege the likelihood that the challenge was racially motivated, it apparently did not do so because in 1995, it found no error in the trial court's failure to require the State to provide a race-neutral reason for a challenge of an East Indian juror in Windom v. State, 656 So.2d 432 (Fla.), cert. denied, 516 U.S. 1012, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995). After objections were raised by both the State and the defense regarding peremptory challenges each had made, inquiries made by the trial court, and the race-neutral reasons provided, the defense questioned an additional challenge exercised by the State, stating: "I'd like to question that choice, too, assuming she is black." As there was some uncertainty as to the juror's race, the juror was questioned further and it was learned that she was East Indian. A unanimous Florida Supreme Court concluded that the trial court did not err by failing to require the State to provide a race-neutral reason for the challenge as the defense did not satisfy its burden in order to trigger an inquiry by the court because it failed to allege that there was a strong likelihood that the juror was challenged solely because of her race.

Consistent with what we have held in [State v.] Alen[, 616 So.2d 452 (Fla. 1993),] and Johans, and from our review of the voir dire record, we conclude, in respect to this prospective juror, that the defendant's expressed objection did not make it necessary for the trial court to require the State to have and express a race-neutral reason for the challenge. We reiterate once again what we stated specifically in Neil: there is an initial presumption 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 which...

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    ...and Wilkie D. Ferguson, Jr., Bar Association, As Amici Curiae. PER CURIAM. We initially accepted review of this case, Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006), on the basis of the district court's certification of a question of great public importance. Art. V, § 3(b)(4), Fla. Const......
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