JAMES EDWARD COTTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Edward Cotton appealed his conviction for burglary and attempted indecent assault, challenging the trial court's denial of his motion for mistrial based on alleged racial discrimination in the prosecution's use of peremptory challenges. The court affirmed the conviction, finding that Cotton failed to make the requisite showing under the test established in Neil v. State that prospective jurors were excluded solely because of their race.
No. The trial court did not err. Although Cotton objected to the exclusion of Black jurors at trial, he failed to demonstrate on the record that the challenged persons were members of a distinct racial group and that there was a strong likelihood they were challenged solely because of their race, as required by Neil v. State. The record reflected valid, race-neutral bases for excluding the challenged jurors.
[1] A party seeking to challenge the discriminatory use of peremptory challenges must make a timely objection and demonstrate a strong likelihood that challenged persons of a…
[2] If a party demonstrates a strong likelihood of race-based peremptory challenges, the burden shifts to the party exercising the challenges to show they were not based sole…
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Join FLexlaw to unlock all legal intelligence“The initial presumption is 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 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.”
Establishes the foundational test and burden of proof for alleging racial discrimination in peremptory challenges
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Join FLexlaw to unlock all legal intelligenceCotton was convicted of burglary and attempted indecent assault. During jury selection, the prosecution exercised peremptory challenges that resulted …
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DOWNEY, Judge.
This is an appeal from a judgment of guilty of burglary and attempted indecent assault. Appellant raises five points on appeal, all of which have been seriously considered and found not to demonstrate reversible error. One point deserves comment.
Appellant contends in his second appellate point that the trial court erred in denying his motion for mistrial in permitting the state to exercise peremptory challenges so as to systematically exclude blacks from the jury. The point is adequately preserved because appellant objected to the alleged exclusion at trial and this case was in the “pipeline” (Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)) when the Florida Supreme Court decided Neil v. State, 457 So. 2d 481 (Fla.1984).
In Neil the supreme court set forth the test to be employed when confronted with the alleged discriminatory use of peremptory challenges based upon race:
The initial presumption is that perempto-ries will be exercised in a nondiscriminatory manner. 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 peremp-tories. 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 jurors’ race. The reasons given in response to the court’s inquiry need not be equivalent to those for a challenge for cause. If the party 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. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.
Id. at 486-487 (footnotes omitted).
Thus, we learn from Neil that, before requiring the offending party to demonstrate that the questioned challenges were not exercised solely because of a prospective juror’s race, the offended party must “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.” No such showing was made here, nor could it have been. Without burdening this opinion with the voir dire interrogation of each juror, suffice to say that the record reflects the exclusion of a number of blacks from the jury, but in almost each instance there was a valid basis for exclusion other than race. For example, one juror’s son had been prosecuted by the state, represented here by the prosecutor. Another juror has been in the same type of trouble as appellant and was therefore not sure he could convict. Another excluded juror felt children had little credibility, and children were the primary witnesses in this case. Additionally, Juror Parrish was seventy years of age, was not sure she could make a judgment, and did not want to serve.
Since the record presented does not support an application of the Neil rule, the judgment and sentence appealed from is affirmed.
AFFIRMED.
DELL and BARKETT, JJ., concur.
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Blackshear v. State, 504 So. 2d 1330 (Fla. 1st DCA 1987)…e v. Neil, supra at 487, n. 10; see also Taylor v. State, 491 So. 2d 1150 (Fla. 4th DCA 1986) (defendant’s initial burden not met by counsel’s pointing out that all five prospective black jurors had been challenged). Moreover, as in Cotton v. State, 468 So. 2d 1047 (Fla. 4th DCA 1985), racially neutral reasons for many of the state’s peremptory challenges of the black prospective jurors were apparent from the record of the voir dire examination. Although, as we have held, the defense did not meet its initial…
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Taylor v. State, 491 So. 2d 1150 (Fla. 4th DCA 1986)…on, it is appropriate to examine the answers given. See Hale v. State, 480 So. 2d 115, 116 n. 1 (Fla. 2d DCA 1985). Juror number fifteen had a relative accused of murder. This would clearly seem to be an adequate reason. See, e.g., Cotton v. State, 468 So. 2d 1047 (Fla. 4th DCA 1985). The prosecutor stated that he challenged juror number twenty-six because “of her reaction towards her three kids. She was trying to hurry up the proceedings. I don’t think she could be fully alert.” The court said the defense co…1 / 2
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McCLOUD v. State, 517 So. 2d 56 (Fla. 1st DCA 1987)…e of race. The mere demonstration of the exclusion of a number of blacks is not sufficient to entitle a party to inquiry into the other party’s use of per-emptories. See also Blackshear v. State, 504 So. 2d 1330 (Fla. 1st DCA 1987); Cotton v. State, 468 So. 2d 1047 (Fla. 4th DCA 1985). Furthermore, in the instant case the state gave nonracial reasons for striking most of the black jurors. The court apparently found these reasons adequate to assure it that there was no substantial likelihood the challenges were…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)