Williams v. State, 92-1709

• Decision Date: 11 June 1993
• Docket Number: No. 92-1709,92-1709
• Citation: 619 So.2d 487
• Parties: 18 Fla. L. Week. D1421 Eddie Purcell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 487

619 So.2d 487

18 Fla. L. Week. D1421

Eddie Purcell WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 92-1709.

District Court of Appeal of Florida,

First District.

June 11, 1993.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Eddie Purcell Williams was convicted of two counts of armed robbery with a firearm and two counts of attempted armed robbery with a firearm. He appeals his convictions and his sentences as a habitual violent felony offender, raising three issues. We conclude that the trial court erred in (1) denying Appellant the right to peremptorily challenge two black jurors and (2) admitting as collateral crime evidence testimony about an unrelated robbery that took place four years earlier. Accordingly, we reverse the convictions and remand for a new trial. We find it unnecessary to reach the sentencing issue.

I.

Williams (who is black) first contends that the trial court erred in denying his peremptory challenges to three black female potential jurors on the basis of a Neil violation. ¹ He argues that the trial court improperly directed his counsel, sua sponte without any objection being made by the state, to state racially neutral reasons for his challenge of these jurors. He further argues that the court applied the wrong legal test in making this ruling because the peremptory challenges were denied for reasons applicable only to challenges for cause. The state argues only that Appellant did not make the required contemporaneous objections before the trial court, and thus has not properly preserved this point for appellate review. This issue arose in the following manner.

In accordance with the customary practice in Duval County, the jury in this case was selected on Monday, April 20, 1992, even though the trial was not to commence until later that week. After the potential jurors had been examined on voir dire, the parties announced several peremptory challenges, and the defense made Neil objections to the state's challenge of two black jurors. Ruling on these objections, the trial judge, without any objection by the state, also required defense counsel to explain the reasons for the peremptory challenge of two black jurors, stating, "I don't know if there's a presumption about numbers or not, but I'm going to require both the state and defendant to tell me why they excused black jurors because it seems to me what's good for the goose is good for the gander." The trial court ruled upon the state's challenges, upholding a challenge based on the juror's prior criminal record and denying two challenges based on (1) a belief by a juror that a police officer may lie, and (2) a prior criminal traffic record.

The trial court then asked defense counsel to state the reasons for striking the two black jurors. During voir dire juror Adamson described how she had been the victim of an armed robbery. When asked by defense counsel whether, in view of this experience, she might feel that she could not judge the case fairly, she responded in the negative. Counsel stated that he excused juror Adamson because she had been the victim of a robbery, the offense for which Appellant was on trial, and he felt that she would likely identify with the victims in this case. The court commented, without hearing any argument from the state, that:

THE COURT: She said she wouldn't. I mean I'm not to presume she's lying, I hope.

* * *

MR. HIGBEE [defense attorney]: But I think she would sympathize with them [the victims].

THE COURT: Well, but for the fact that you asked her that it may be valid, but you asked her specifically, I see no reason to presume that she is lying. She is an administrator at Blue Cross-Blue Shield. Her answers to other questions were seemingly to the Court intelligent. She presents an attractive appearance, somewhat educated. There's no reason to think that--there's no basis for me to even remotely presume that she is lying if she can set aside any feelings that she might have so I'm going to deny that challenge for cause also as not being a valid reason. Not for cause, but deny the defendant's use of a peremptory to do that.

(Emphasis added.) The court then asked defense counsel about juror Hannon. During voir dire, this juror had disclosed to defense counsel that she had been the victim of a mugging in 1988, but she indicated that this experience would not preclude her from being a fair juror in this case. Counsel stated that he had excused Ms. Hannon for the same reason as Ms. Adamson--that he did not want victims of robberies or muggings sitting on the jury in this robbery case. The court then asked for the state's position with respect to victims of robberies sitting on robbery juries, and the prosecutor responded that Ms. Hannon did not give any indication that she could not be fair or impartial. The court then ruled:

I don't think that that's a legally sufficient reason to excuse a juror, even with a peremptory, just the fact that they have been victims of this particular crime or any other crime, unless there's some showing that they harbor some grudge against people of that category, there has to be a greater showing than the mere fact that they were victims, as far as I know.

(Emphasis added.)

After denying the defense's challenge to a third juror, the court asked whether the panel was acceptable, and the defense attorney responded, "Other than the strikes that I attempted to use and you disallowed, Judge, they're acceptable." The parties immediately exercised strikes of other jurors to reduce the panel to six and indicated that the panel was acceptable to them. On the first day of trial later that week, before the jury was sworn, defense counsel "move[d] for a mistrial to preserve any issues" because "I know that we have not started trial but rather than do it after the jury comes out, I would ask that you grant a mistrial on the fact that you denied my peremptory strikes." After the court had denied the motion, the prosecutor argued that the motion was late because the defense attorney previously had no opposition to the seating of the jurors when striking the panel, and they were no longer able to bring in a new panel. The court stated that it was not interested in hearing arguments on any motions at that time. Defense counsel did not again raise the denial of the peremptory challenges until the motion for new trial was filed after the jury verdict.

A.

We reject the state's contention that Appellant failed to preserve this issue for appellate review. The supreme court, in holding that an objection based on a Neil violation was not properly preserved for appellate review in Joiner v. State, 618 So.2d 174 (Fla.1993), explained the rationale of its ruling:

We held in Jefferson [v. State, 595 So.2d 38 (Fla.1992) ] that striking the entire jury panel is not the only remedy for a Neil violation. There we held that seating the improperly challenged juror is a proper remedy for a Neil violation. We agree with Joiner that a new panel may exacerbate rather than alleviate the constitutional violation Neil is designed to remedy. We therefore disapprove the lower court's suggestion that the preferred procedure reserving the issue is to move to strike the jury panel....

We do not agree with Joiner, however, that he preserved the Neil issue for review. He affirmatively accepted the jury immediately prior to its being sworn without reservation of his earlier made objection. We agree with the district court that counsel's action in accepting the jury led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection. It is reasonable to conclude that events occurring subsequent to his objection caused him to be satisfied with the jury about to be sworn. We therefore approve the district court to the extent that the court held that Joiner waived his Neil objection when he accepted the jury. Had Joiner renewed his objection or accepted the jury subject to his earlier Neil objection, we would rule otherwise. Such action would have apprised the trial judge that Joiner still believed reversible error had occurred. At that point the trial judge could have exercised discretion to either recall the challenged juror for service on the panel, strike the entire panel and begin anew, or stand by the earlier ruling.

618 So.2d at 176 (emphasis added). Unlike Joiner, in the instant case defense counsel first indicated during jury selection on Monday that the jury panel was acceptable "other than the strikes" disallowed by the court. Although defense counsel stated two pages later in the transcript, after further strikes had reduced the panel to six, that the panel was acceptable to the defendant, nevertheless, before the jury was sworn on the day the trial began, defense counsel moved for a mistrial to preserve any issue regarding the trial court's denial of his peremptory challenges. The law is well settled that a trial judge has no authority to infringe upon a defendant's right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn, and that a denial of this right is per se reversible error. Gilliam v. State, 514 So.2d 1098 (Fla.1987); Fla.R.Crim.P. 3.310 This has been the rule of law in this state for more than a hundred years. Mann v. State, 23 Fla. 610, 3 So. 207 (1887); O'Connor v. State, 9 Fla. 216 (1860). We conclude that Appellant's motion for mistrial, having been made before the jury was sworn, was legally sufficient under the supreme court's rationale in Joiner to timely apprise the trial judge that Appellant continued to believe that reversible error had occurred in the denial of his peremptory challenges, so that the trial court could exercise its discretion either to correct the error or let its prior ruling stand....