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Date: 12-28-2018
Case Style:
GEOVANI JOHNSON vs STATE OF FLORIDA
Case Number: Nos. 4D15-4452, 4D15-4519 and 4D15-4539
Judge: Burton C. Conner
Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General
Defendant's Attorney: Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel
Description:
In Case Nos. 13011816CF10A and 13012248CF10A, Defendant was charged with violating probation, based in part on three counts of robbery with a firearm and possession of a firearm by a convicted felon filed in Case No. 14013212CF10A. The new charges proceeded to a jury trial. During jury selection, the State exercised a peremptory challenge on Juror No. 10, an African-American male. At Defendant’s request, the trial court asked the state for a race-neutral reason for the strike. The State responded: The State does have a race-neutral reason. [Juror No. 10] indicated that he would prefer CSI evidence.[2] Additionally, the Defense has stricken two black females in their first round of strikes. They’ve also stricken black individuals for cause. And this is -- Cutting off the State, the trial court stated: “All right. Okay. I find that to be [a] race-neutral reason. I’m going to uphold State’s use of a peremptory on [Juror No. 10].” Defendant did not make any further objection or argument at that time. However, at the conclusion of the jury selection process, when asked if each side accepted the panel of jurors, the defense advised the panel was not acceptable, in part because the trial court “denied my Melbourne vs. State objection to the State striking [Juror No. 10].” The jury found Defendant guilty of three counts of robbery with a weapon, lesser-included offenses, and not guilty of possession of a firearm by a convicted felon. The court entered judgment and sentenced Defendant to concurrent prison terms for the three robberies. The trial
2 “CSI” refers to the television show Crime Scene Investigation.
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court revoked Defendant’s probation in the other two cases and imposed sentences in those cases. Defendant gave notice of appeal. Appellate Analysis We review a trial court’s decision to uphold or deny a peremptory challenge for abuse of discretion. Truehill v. State, 211 So. 3d 930, 942 (Fla. 2017). As a reviewing court, we must presume that peremptory challenges are exercised in a nondiscriminatory manner. Poole v. State, 151 So. 3d 402, 409 (Fla. 2014). “Under Florida law, a party’s use of peremptory challenges is limited only by the rule that the challenges may not be used to exclude members of a ‘distinctive group.’” San Martin v. State, 705 So. 2d 1337, 1343 (Fla. 1997). [T]o strike the appropriate balance between a party’s right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, [our supreme court] in Melbourne enunciated a three-step procedure to be followed when a party objects to the exercise of a peremptory challenge on the ground that it was made on [an improper] discriminatory basis.[[3]] Hayes v. State, 94 So. 3d 452, 460-61 (Fla. 2012) (emphasis added). Based on the United States Supreme Court’s holdings in Batson v. Kentucky, 476 U.S. 79 (1986) and Purkett v. Elem, 514 U.S. 765 (1995), and Neil-Slappy4 case law, the procedure was stated as consisting of three steps: Step 1: Objection and Prima Facie Case A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis; b) show that the venireperson is a member of a distinct protected group; and c) request that the court ask the striking party its reason for the strike.
3 In Melbourne, the Court stated that State v. Neil, 457 So. 2d 481 (Fla. 1984) was “[a] seminal Florida case . . . wherein this Court set out a procedure for dealing with racially-motivated peremptory challenges.” Melbourne, 679 So. 2d at 763 (emphasis added). 4 State v. Neil, 457 So. 2d 481 (Fla. 1984); State v. Slappy, 522 So. 2d 18 (Fla. 1988).
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Step 2: Race-Neutral Explanation The court must then ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.
Step 3: Determination of Genuineness If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. The court’s focus here is not on the reasonableness of the explanation but rather its genuineness. See Melbourne, 679 So. 2d at 763-64; Hayes, 94 So. 3d at 461. In interpreting the true scope of the Melbourne procedure, we will rely on case law generated by Batson and Purkett and its progeny, especially two decisions from the United States Supreme Court. Step 3 of the Melbourne (Batson) Procedure Defendant’s appeal focuses on Step 3 of the Melbourne procedure. Relying on Hayes, Defendant contends the record does not support a conclusion that the trial court properly conducted Step 3. Specifically, Defendant argues the trial court did not review, analyze, or conduct any “judicial assessment” of the reasons given by the State for striking Juror No. 10; instead, the trial court summarily ratified the peremptory challenge. Additionally, Defendant argues the “cold record” is “devoid of any indication” that the trial court “considered or weighed any relevant circumstances in deciding whether the State’s strike was discriminatory.” The State responds, arguing a lack of preservation because Defendant failed to raise an issue of noncompliance with Melbourne below. As to the merits of Defendant’s arguments, the State also relies on Hayes, contending that when a defendant objects to the State’s exercise of a peremptory challenge, and the trial court upholds the strike, the defendant carries the burden of persuasion that the State’s strike was exercised in a discriminatory manner. The State contends the record shows the trial court complied with Step 3. Relying on Lidiano v. State, 967 So. 2d 972, 975 (Fla. 3d DCA 2007), the State argues that “[t]he trial court is not required to orally perform its genuineness analysis or to articulate the basis for its ruling.” Moreover, the State contends that because it pointed out, in providing its race-neutral reason for striking Juror No. 10, that the defense had stricken two black females in the defense’s first round of strikes, after the State had twice accepted the jury panel including those
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jurors, the record reflects that the trial court was aware of and considered the circumstances relevant to determining if a strike was improperly discriminatory and implicitly found there was no pretext in the strike. Spencer v. State Melbourne was decided in 1996. Twenty-two years later, courts still struggle with its proper application. Over the years, the case law has focused increasingly on Step 3 of the Melbourne procedure. The unresolved troublesome aspects of what Step 3 means and what it involves is perhaps best demonstrated by our supreme court’s most recent opinion on the subject, Spencer v. State, 238 So. 3d 708 (Fla. 2018) (“Spencer II”). The Spencer II opinion reveals a divided court on the issue of the preservation requirements for a Melbourne noncompliance claim. Ultimately, all of the justices agreed with the Second District that Spencer’s conviction should not be reversed for noncompliance with Melbourne. In a plurality opinion, three justices agreed the Melbourne noncompliance claim was preserved. Id. at 718. Two justices concurred in result, with an opinion disagreeing that the claim was preserved, suggesting that the court recede from language in Hayes, and readopt the court’s prior preservation reasoning in Floyd v. State, 569 So. 2d 1225 (Fla. 1990). Id. at 719-20 (Lawson, J., concurring in result). Two justices concurred in result without an opinion. Id. at 718. In Spencer II, the supreme court considered a certified question from the Second District. Id. 3d at 711. On direct appeal, the Second District upheld Spencer’s conviction, determining that his claim that the trial court did not comply with Step 3 of Melbourne was not preserved. Spencer v. State, 196 So. 3d 400, 401 (Fla. 2d DCA 2016) (“Spencer I”). As to one prospective juror, Spencer never asserted the State’s reason for the strike was a pretext. Id. at 410. As to the other prospective juror, Spencer did not object to the manner in which the trial court conducted the Melbourne procedure. Id. The Second District opined that the trial court was not required to perform a full genuineness analysis on the record every time a party initiates a Melbourne challenge, and if the opponent of the strike wants the trial court to determine the genuineness of the reason proffered for the strike, the opponent “must expressly make a claim of pretext and at least attempt to proffer the circumstances that support its claim.” Id. at 401. After conducting an extensive analysis of the law regarding Step 3, the Second District wrote: “It is true that the trial courts must make the three decisions required by Melbourne if requested, but the parties are not entitled to sit back and have the court go through this process for them.” Id. at 409 (bold emphasis added).
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The Second District certified a three-part question of great public importance: During a Melbourne hearing, when a trial court finds that the proponent’s reason for a peremptory challenge is facially neutral, is it the burden of the opponent (1) to claim the reason is a pretext, (2) to place into the record the circumstances supporting its position, and (3) to object if the trial court’s ruling does not contain adequate findings on the issue of genuineness?
Id. at 411. The plurality opinion of the supreme court began its analysis with the observation that, “[t]he real issue presented here is whether our decision in Melbourne requires a trial court to strictly adhere to the procedure as outlined in Melbourne and its progeny.” Spencer, 238 So. 3d at 711. Rejecting the elevation of form over substance, the plurality agreed with the Second District that strict adherence to the Melbourne procedure is not required. Id. The plurality sought “to clarify that preservation of an issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not require anything more than what we have previously articulated,” citing Melbourne and Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). Id. After discussing a progression of case law from 1984 to 2004,5 the plurality then discussed some of the pronouncements in the Court’s 2012 Hayes opinion. Id. at 712-15. Critical to its position, the plurality relied on two statements in Hayes: [W]here the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. and
5 In chronological order, the cases discussed were: Neil; Batson; Slappy; Floyd; Joiner; Purkett; Melbourne; Rodriguez v. State, 753 So. 2d 29 (Fla. 2000); and Dorsey v. State, 868 So. 2d 1192 (Fla. 2003).
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We emphasize that under the final step, the step at issue in this case, if the proponent’s reason for the challenge is race-, ethnicity-, or gender-neutral, then the trial court should inquire of the opponent of the strike. Id. at 715 (quoting Hayes, 94 So. 3d at 463, 467). Immediately thereafter, the plurality said: Spencer argues that this Court should answer the certified question in the negative because the third step of Melbourne, like Batson, is a decisional step where the trial judge evaluates the parties’ persuasiveness after considering all relevant circumstances. Spencer argues that the preservation occurs in step one that can only be waived as articulated in Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993), by failing to renew objections before the jury is empaneled. Alternatively, the State argues that because the opponent of a peremptory strike bears the burden of persuasion, that burden should include expressly stating a claim of pretext and presenting facts and argument to support such a claim. We agree with both arguments. Id. (emphasis added) (footnote omitted). In rejecting the Second District’s opinion regarding preservation, the plurality said: Although the Second District acknowledges that “[i]t is unquestionably the better practice for the trial court, having made a determination of neutrality under step 2 of the Melbourne analysis, to ask the opponent whether he or she wishes to challenge the genuineness of the proponent’s reason,” it nevertheless holds that there is “no reason to reverse a judgment and sentence following an entire trial when the trial court omits this step without objection from anyone.” Spencer, 196 So. 3d at 407. We disagree with this statement because it is contradictory to the plain language of Hayes. Hayes, 94 So. 3d at 461 (“Compliance with each step [of Melbourne] is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.”).
While we were not “abandoning requirements for full preservation in Hayes,” Spencer, 196 So. 3d at 408, Hayes provides that the trial court has a duty to perform the correct
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legal analysis independent of trial counsel’s duty. Hayes, 94 So. 3d at 465 (“Since the reason defense counsel offered was facially gender neutral, the trial court was then required to engage in step three—the genuineness analysis.”); see also Batson, 476 U.S. at 98, 106 S.Ct. 1712 (after the prosecution articulates a neutral explanation “[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination.”); Slappy, 522 So. 2d at 22 (“[A] judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact.”). Here, the trial judge performed his duty when he requested a response from defense counsel immediately after the State provided its purported race-neutral reason and before the trial court ruled on the genuineness of the reason. Id. at 716 (alterations in original) (emphases added). Upon that reasoning, the plurality concluded the trial court complied with the Melbourne procedure and affirmed the Second District’s conclusion there was no reversible error. Id. at 718. While concurring with the result, the concurring opinion viewed some of the principles discussed in Hayes and relied upon by the plurality as dicta. Id. at 718-20, 724 (Lawson, J., concurring in result). Rejecting the dicta, the concurring opinion relied on principles discussed in Floyd, which requires the opposing counsel to challenge the proffered raceneutral explanation to preserve the issue. Id. at 718. The concurring opinion felt it was time to resolve the seeming conflict between Floyd and Hayes, and asserted the Court should recede from the dicta in Hayes. Id. at 720. Although the concurring opinion did not expressly adopt the “if requested” language of the Second District in Spencer I, the concurring opinion appears to have asserted that approach. The concurring opinion stated three reasons for agreeing with the Second District. Id. In stating the second reason, the concurring opinion wrote: Second, contrary to the assertion in Hayes, the trial judge does not need to “undertake an on-the-record genuineness inquiry” in the absence of any challenge to the race-neutral reason to allow for “meaningful appellate review.” As explained in Melbourne, if the opponent of the strike does not make a record from which the trial court’s decision can be
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challenged on appeal as “clearly erroneous,” the trial judge’s ruling “will be affirmed.” Id. at 721 (emphases added) (citation omitted). Post-Spencer Analysis Until a majority opinion by our supreme court says otherwise, in this District, we contend there arguably is no conflict between Hayes and Floyd. We further hold that the Melbourne procedure is indeed a threestep process, and the intent of our supreme court, in adopting the procedure, was to require that all the steps be followed. We reject the notion that the three-steps are required only “if requested.” Our premise is that the three-step procedure stated in Melbourne is analogous to the procedures used by the judiciary to address claims of discovery violations during a criminal trial and assertions of the defendant’s incompetence to proceed in criminal prosecutions. When a claim is made during a criminal trial that there has been a discovery violation, the trial court must engage in a process of analysis, regardless of whether the proponent of the objection requests a Richardson6 hearing. Jones v. State, 32 So. 3d 706, 710-11 (Fla. 4th DCA 2010) (determining that the Richardson hearing requirement applies to a possible discovery violation, even if the defendant does not request a Richardson hearing). Likewise, if a defendant in a criminal prosecution makes an initial showing of incompetence to proceed, the trial court must take certain steps before proceeding, regardless of whether the defendant pursues the matter or not. Dougherty v. State, 149 So. 3d 672, 677-78 (Fla. 2014) (determining that once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, failure to make an independent determination regarding a defendant’s competency to stand trial is reversible error); Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA 2018) (determining that once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, failure to hold a hearing constitutes fundamental error which can be addressed for the first time on appeal). The rationale for imposing such duties on the trial court is to assure the integrity and rudimentary fairness of the proceedings (prohibiting trial by ambush or criminally punishing someone who is incompetent).
6 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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In our view, elements of the Melbourne procedure impose a duty on trial courts, separate and apart from the duties of the advocates, for similar reasons. That is to say, Melbourne imposes some procedural requirements as a duty on trial courts that do not require objections at each step to preserve the matter for appellate review; however, with regards to factual accuracy of assertions by the proponent of a peremptory strike, the standard preservation requirements apply. We conclude that at a minimum, Melbourne imposes a duty on trial courts at Step 3 to request a response to the proffered explanation from the opponent of a peremptory challenge once Step 2 has been completed. We continue to adhere to our prior case law that “the Melbourne procedure does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under [S]tep [3].” Denis v. State, 137 So. 3d 583, 586 (Fla. 4th DCA 2014) (citing Hayes, 94 So. 3d at 463). We continue to agree with the plurality opinion in Spencer II that: [W]here the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. Spencer, 238 So. 3d at 715 (quoting Hayes, 94 So. 3d at 463); see also R.J. Reynolds Tobacco Co. v. Enochs, 226 So. 3d 872, 874 (Fla. 4th DCA 2017) (same); West v. State, 168 So. 3d 1282, 1285 (Fla. 4th DCA 2015) (same); Denis, 137 So. 3d at 586 (same); Burgess v. State, 117 So. 3d 889, 891 (Fla. 4th DCA 2013) (same); King v. State, 106 So. 3d 966, 968 (Fla. 4th DCA 2013) (same); Victor v. State, 126 So. 3d 1171, 1172 (Fla. 4th DCA 2012) (same); Cook v. State, 104 So. 3d 1187, 1190 (Fla. 4th DCA 2012) (same).7 Also relying on Hayes, we have said that “[c]ompliance with each step [of the Melbourne procedure] is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.” King, 106 So. 3d at 968 (quoting Hayes, 94 So. 3d at 461); see also Welch v. State, 992 So. 2d
7 The dissent points out that these cases do not involve “a situation in which counsel for the defendant failed to challenge the race-neutral reason.” However, the cases are cited as support for the quote and not to specifically negate the premise that Melbourne requires three steps only if the opponent of the strike continually makes specific objections about the procedure.
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206, 212 (Fla. 2008) (determining a failure to follow Melbourne procedure constitutes reversible error). As mentioned, however, we also continue to adhere to our prior case law that the opponent of a peremptory challenge who contests the factual assertions on which the strike is based must comply with the usual requirements for preservation. See Hoskins v. State, 965 So. 2d 1, 9 (Fla. 2007) (stating that the defendant’s failure to question the facts on which the strike was based waived the issue for review); Denis, 137 So. 3d at 585; Doe v. State, 980 So. 2d 1102, 1104 (Fla. 4th DCA 2008) (affirming the trial court’s decision to sustain the peremptory strike because “[d]efense counsel did not challenge the facts on which the strikes were based and thus failed to preserve this issue for appellate review”). Like the plurality opinion in Spencer II, we disagree with the Second District’s premise that “[i]t is true that the trial courts must make the three decisions required by Melbourne if requested. . . .” Spencer, 196 So. 3d at 409 (bold emphasis added). In our view, such a premise suggests, at best, that only the first two steps of the Melbourne procedure are mandatory.8 Such a premise ignores that Step 3, in our view, is the penultimate decision and raison d’etre for the analysis. Without Step 3, the protection against an improper discriminatory peremptory challenge is lost. The primary problem with the assertion that the Melbourne procedure does not always have to be a three-step process is that it ignores what we deem to be key language in United States Supreme Court case law, starting with Purkett. The discussion of the facts in Purkett does not make it clear what response, if any, Purkett made when the state proffered its raceneutral reasons for the preemptory strikes against two black men. What is clear is that the Supreme Court said: If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Purkett, 514 U.S. at 767 (emphasis added). Additionally, the Court wrote: “The Court of Appeals erred by combining Batson’s second and third steps into one. . . .” Id. at 768. Such language indicates that each of the three steps are independently vital and significant.
8 However, the Second District’s opinion could also be read to mean that compliance with Step 2 is not mandatory unless requested.
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Perhaps the strongest argument to be made that the Melbourne procedure is a three-step process that does not require the preservation requirements asserted by the Second District, the concurring opinion in Spencer, and the dissent in this case, comes from a review of United States Supreme Court case law subsequent to Purkett. Two opinions are pertinent to our analysis: Johnson v. California, 545 U.S. 162 (2005); and Foster v. Chatman, 136 S.Ct. 1737 (2016). From a review of those two cases, it does not appear that the Supreme Court requires a specific preservation argument to be made to prevail on a Batson challenge; instead, the challenge can be upheld years later, based on the appellate record. In Johnson, although the Court addressed Step 1 of the Batson analysis, it is persuasive here. Johnson was convicted of second degree murder by a California jury. Johnson, 545 U.S. at 164. At trial, he asserted a race-based challenge to the state’s preemptory strikes of black prospective jurors. Id. at 165. The trial court did not ask the prosecutor to explain the rationale for his strikes; instead, the trial court simply found that Johnson had failed to establish a prima facie case of discrimination under the governing state precedence. Id. The Supreme Court began its analysis by pointing out that in Batson, the Court remanded the case for further proceedings because the trial court failed to demand an explanation from the prosecutor for the preemptory challenge. Id. at 16970. The Court then wrote: [I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated. Id. at 170. After referencing the Batson requirement that the opponent of the strike carries the burden of persuasion, the Court then wrote: [E]ven if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end— it merely proceeds to step three. The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim. Id. at 171 (footnote omitted) (internal citation omitted). The Court then opined:
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The three-step process thus simultaneously serves the public purposes Batson is designed to vindicate and encourages “prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.” Id. at 172-73 (quoting Hernandez v. New York, 500 U.S. 352, 358-59 (1991)). Although it is not clear from the opinion that preservation was raised as an issue in the case, what is clear is that the Supreme Court envisioned the first two steps of the Batson procedure as the steps involving the production of evidence in order for the trial court to conduct a proper analysis in the third step. It seems implicit in the Supreme Court’s reasoning that if a specific preservation objection is required, then it would have addressed the issue of Johnson’s failure to object and secure a ruling as to Step 2, and conclude the Batson challenge was properly denied by the trial court. In Foster, the Supreme Court granted certiorari review of a Georgia death penalty conviction and sentence. Foster, 136 S.Ct. at 1743. There, the state exercised nine of its ten allotted peremptory strikes, removing four black prospective jurors. Id. Foster immediately lodged a Batson objection, which was rejected by the trial court. Id. After the judgment and sentence was upheld by the Georgia Supreme Court, Foster sought habeas relief in state court. Id. During the state court habeas proceedings, Foster obtained a series of documents from the prosecution files, clearly suggesting the prosecutor’s office used race in evaluating which prospective black jurors would be subject to a preemptory strike. Id. at 1744-45. The state court denied habeas relief based on res judicata. Id. at 1745. Because both sides conceded that Steps 1 and 2 of Batson had been met, the Supreme Court addressed only Step 3. Id. at 1747. Foster focused his Batson claim on two prospective jurors, for whom the state proffered multiple reasons during trial for the strike as to both. Id. at 1748. As to one of the stricken prospective jurors, for whom the state offered eleven reasons for the strike, the Court noted that the trial court accepted the state’s justifications, concluding that “‘[i]n the totality of circumstances,’ there was ‘no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons’ for the strike.” Id. at 1748-49 (alteration in original). However, based on the Court’s independent examination of the record, it concluded that much of the reasoning provided by the state “ha[d] no grounding in fact.” Id. at 1749. As to the second prospective juror, for whom the state proffered eight reasons for the strike, the Court noted that the state’s reasons for the
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strike were inconsistent before the trial court, focusing its argument on only one concern, and the state’s justification for the strike shifted over time in the post-trial proceedings. Id. at 1751-52. The Court also observed that many of the state’s justifications “come undone when subjected to scrutiny.” Id. at 1753. Additionally, as to both stricken prospective jurors, the Court noted that many of the proffered reasons applied to white prospective jurors, for whom the state did not exercise a strike. Id. at 1750. Thus, the Supreme Court reversed the conviction and remanded the case for further proceedings. Id. at 1755. What is instructive about Foster is that the Supreme Court determined there was a Batson violation on proffered reasons for a preemptory strike that “[came] undone” after an extensive review of the record. If objections were made discussing any details regarding the proffered explanations, it is likely the Court would have discussed the objections or alluded to them. Because there is no discussion of such points, it appears the United States Supreme Court does not impose a specific objection in order to conduct an appellate review of the trial court’s compliance with Batson. The Dissent’s Analysis The dissent cites ten cases in support of its contention that Melbourne does not always require three steps, but does require a specific objection to preserve a claim of pretext. However, four of the cases were decided before Purkett.9 Prior to Purkett, the contention that Batson requires three
9 The four cases are: United States v. Arce, 997 F.2d 1123 (5th Cir. 1993); Hopson v. Fredericksen, 961 F.2d 1374 (8th Cir. 1992); United States v. Bennett, 928 F.2d 1548 (11th Cir. 1991); and United States v. Rudas, 905 F.2d 38 (2d Cir. 1990). Arce is not helpful to the analysis because it relies on Rudas, which is discussed below. 997 F.2d at 1127. Hopson is not helpful to the analysis because the issue was the failure of the judge to articulate the reason for overruling the Batson objection. 961 F.2d at 1377-78. Neither the United States Supreme Court nor the Florida Supreme Court has ever imposed such a requirement. In Bennett, the Fifth Circuit held that “the government’s articulated reasons are not pretextual as a matter of law. Opportunity to rebut the government’s reasons would therefore have been to no avail. Consequently, we need not address Bennett’s secondary argument [that the trial court failed to allow Bennett to rebut the explanation] at this juncture.” Bennett, 928 F.2d at 1550 n.1. Clearly, the theory of waiver approved by the Fifth Circuit is questionable, given its conclusion that articulated reasons are not pretextual as a matter of law.
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steps was only approved by the plurality opinion in Hernandez. Additionally, in Hernandez, the Court said “[o]nce a prosecutor has offered a race-neutral explanation for peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing of intentional discrimination becomes moot.” Hernandez, 500 U.S. at 359. As discussed below, that language was erroneously interpreted to mean that once a trial court rules on a Batson objection, even without determining if the proffered reasons are genuine, the prima facie showing of intentional discrimination becomes moot. The case which appears to be the strongest support for the dissent’s position is Davis v. Baltimore Gas & Electric Company, 160 F.3d 1023 (4th Cir. 1998), in which the Fourth Circuit said: “The court has no obligation to guide the movant, step-by-step, through the requirements of his own objection.” Id. at 1028. However, Davis does not mention Purkett at all, and instead, misapplied Hernandez, which also predated Purkett. Id. at 1026-27. Immediately after stating the quote from Hernandez discussed above, the Fourth Circuit said: Fourth Circuit law endorses the Supreme Court’s holding in Hernandez. Prior to the Court’s pronouncement in Hernandez, the Fourth Circuit held that when racially neutral reasons are proffered, it is unnecessary to determine whether a prima facie case was actually demonstrated. So, since Defendant volunteered racially neutral reasons for its strikes, the prima facie determination is moot. Davis, 160 F.3d at 1027 (internal citations omitted). In other words, the Fourth Circuit completely ignored Step 3 discussed in Hernandez (which Purkett amplified further) to conclude that a racially neutral proffered explanation ends the Batson inquiry. The remainder of the cases cited by the dissent are also unpersuasive, because in those cases, either the trial court gave the opponent of the
The problem with Rudas is that the Second Circuit asserted that “[o]nce the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim,” with no citation of authority. 905 F.2d at 41.
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strike the opportunity to respond,10 or at least, there is not enough information to determine whether the trial court did,11 or the cases do not rely on Purkett and rely on pre-Purkett cases.12 The dissent voices a legitimate concern that “the goal has become the process.” Justice O’Connor may have expressed the fear best when she observed that by “constitutionalizing jury selection procedures . . . jury selection—once a sideshow—will become the main event.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 147 (1994) (O’Connor, J., concurring). Nonetheless, it must be remembered that the procedure espoused by Batson by a majority of the Supreme Court and adopted in Melbourne “was designed ‘to serve multiple ends,’ only one of which was to protect individual defendants from discrimination in the selection of jurors.” Georgia v. McCollum, 505 U.S. 42, 48 (1992) (emphasis added) (quoting Powers v. Ohio, 499 U.S. 400, 406 (1991)). As can be seen from the Supreme Court’s application of Batson, much more is involved than a concern about Equal Protection under the Constitution. Batson not only preserves Equal Protection, but also Due Process, and the Sixth Amendment right to a trial by a fair jury. In Powers, the Supreme Court addressed the issue of whether Batson applied when a white defendant sought to challenge the state’s use of peremptory challenges to exclude black potential jurors. 499 U.S. at 403. In the first paragraph of the opinion, the Court said: In the many times we have confronted the issue since those cases [referring to three cases construing the Civil Rights Act of 1875], we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts. Id. at 402 (emphases added). The majority in Powers went on to say: “Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people.” Id. at 407. The majority concluded that “Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the excluded jurors and the community at large.” Id. at 406 (emphases added). The notion that Batson was intended to avoid “offend[ing] . . . the integrity
10 United States v. Vann, 776 F.3d 746 (10th Cir. 2015); State v. Washington, 288 S.W.3d 312 (Mo. Ct. App. 2009); Adair v. State, 336 S.W.3d 680 (Tex. Crim. App. 2010). 11 Wright v. Harris Cty., 536 F.3d 436 (5th Cir. 2008); People v. Alvarado, 759 N.Y.S.2d 659 (N.Y. App. Div. 2003). 12 Wright, 536 F.3d at 436; United States v. Jackson, 347 F.3d 598 (6th Cir. 2003).
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of the courts” and “harm” to “the community at large” was grounded upon the following statement in Batson: The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge. Batson, 476 U.S. at 86 (citing Duncan v. Louisiana, 391 U.S. 145, 156 (1968)), and in a footnote, where the Court said: In Duncan v. Louisiana . . . the Court concluded that the right to trial by jury in criminal cases was such a fundamental feature of the American system of justice that it was protected against state action by the Due Process Clause of the Fourteenth Amendment. The Court emphasized that a defendant’s right to be tried by a jury of his peers is designed “to prevent oppression by the Government.” For a jury to perform its intended function as a check on official power, it must be a body drawn from the community. By compromising the representative quality of the jury, discriminatory selection procedures make “juries ready weapons for officials to oppress those accused individuals who by chance are numbered among unpopular or inarticulate minorities.”
Id. n.8 (internal citations omitted). In McCollum, the Supreme Court addressed the issue of whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. 505 U.S. at 44. There, three white defendants were charged with aggravated assault and simple battery against two black victims. Id. In holding that the Constitution prohibits criminal defendants from using race for a peremptory challenge, the Supreme Court again relied on the premise that Batson was designed to serve “multiple ends,” including protecting the “integrity of the courts.” Id. at 48. As part of the rationale for its holding, the Court said: “[B]e it at the hands of the State or the defense,” if a court allows jurors to be excluded because of group bias, “[it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens’ confidence in it. Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public
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confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal. Id. at 49-50 (alterations in original) (internal citation omitted). Finally, we disagree with the dissent’s contention, agreeing with the Second District and the concurring opinion in Spencer II, that Hayes and the plurality opinion in Spencer II cast the trial judge as an advocate by imposing a duty to ask the opponent of a peremptory strike to respond to the proffered explanation for the strike. Although a trial court judge must be impartial, “[t]his fundamental precept does not foreclose a trial judge from asking questions to ascertain the truth or to clarify issues.” Gerali v. State, 50 So. 3d 727, 729 (Fla. 5th DCA 2010). It is not uncommon for trial court or appellate judges to ask questions of an advocate to test the strength of an argument. Judges are trained in the skills of neutrality, and we are confident that trial courts can engage in conducting a factual determination without becoming advocates, if questioning is needed to make a factual determination of pretext. The “multiple ends” the Batson-Melbourne procedure was designed to achieve should not be thwarted by the preservation requirements the dissent seeks to impose. It is reasonable and appropriate to impose some duty on the trial court to accomplish the “multiple ends.” Applying the Melbourne Procedure to This Case In the instant case, we conclude the cold record is devoid of any indication that the trial court considered circumstances relevant to whether the peremptory challenge was exercised for a discriminatory purpose. Unlike Spencer II, it is clear that the trial court did not request a response by Defendant to the explanation proffered by the State for the peremptory challenge. Instead, the trial court cut off the State while it was proffering its explanation for the strike and justification for its genuineness, and brought the analysis to an end with the statement, “All right. Okay. I find that to be race-neutral reason. I’m going to uphold State’s use of a peremptory on [Juror No. 10].” On the record presented, we simply cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. See Landis v. State, 143 So. 3d 974, 978 (Fla. 4th DCA 2014) (“If the record lacks any indication that the trial court considered the totality of the circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a
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genuineness inquiry was actually conducted and give deference to the trial court.”). The State asks us to infer that the trial court complied with Step 3 because it pointed out to the trial court, in providing its race-neutral reason for striking Juror No. 10, that the defense had stricken two black females in the defense’s first round of strikes, after the State had twice accepted the jury panel with those jurors. The State contends that the record reflects the trial court was aware of and considered the circumstances relevant to determining if the strike was improperly discriminatory and implicitly found there was no pretext in the strike. We decline the invitation because the trial court cut off the State before it could point out that it had twice accepted the jury panel with those jurors when it exercised two peremptory challenges. We are satisfied that once the trial court decided the explanation was race neutral, it determined no further analysis was needed. In other words, the trial court prematurely curtailed the procedure. Because the trial court failed to comply with the duty imposed by Step 3 of the Melbourne procedure, we reverse the conviction and sentence, and remand the case for a new trial as to the robbery counts in Case No. 14013212CF10A. The violation of probation proceedings in the other two cases were tried without a jury, thus the error regarding jury selection does not affect the adjudication that Defendant violated probation in those cases. We affirm the adjudications and sentences imposed in Case Nos. 13011816CF10A and 13012248CF10A. We further determine that our opinion in this case regarding the procedure for a Melbourne challenge conflicts with the opinions in Brown v. State, 204 So. 3d 546 (Fla. 5th DCA 2016), Ivy v. State, 196 So. 3d 394 (Fla. 2d DCA 2016), and Hanna v. State, 194 So. 3d 424 (Fla. 3d DCA 2016), because those cases continue to adhere to the analysis of the Second District in Spencer I. Thus, we certify conflict with those decisions.
Outcome: Reversed and remand for further proceedings.
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