LUIS ENRIQUE MORIYON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court committed reversible error by failing to conduct an adequate inquiry into the state's use of peremptory challenges to strike black prospective jurors, and that a defendant has standing to challenge such exclusions based on ethnicity.
[1] A defendant, regardless of their race, has standing to challenge the arbitrary exclusion of members of any race from jury service.
[2] A party may request an inquiry into the use of peremptory challenges based on ethnicity, even if the defendant is not of the excluded ethnicity.
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Join FLexlaw to unlock all legal intelligenceLuis Enrique Moriyon was convicted of trafficking in cocaine. He appealed, arguing the trial court erred by not granting his motion for severance and …
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JORGENSON, Judge.
Luis Enrique Moriyon appeals a judgment of conviction and sentence for trafficking in cocaine. Moriyon asserts reversible error based upon the trial court’s refusal to grant his motion for severance and failure to conduct an adequate Neil inquiry.1
We agree that the trial court committed reversible error by failing to conduct an adequate inquiry into the state’s use of peremptory challenges to strike black prospective jurors pursuant to State v. Neil, 457 So. 2d 481 (Fla.1984), clarified sub nom State v. Castillo, 486 So. 2d 565 (Fla.1986), and State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, — U.S.-, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).2 In support of its assertion that no error occurred, the state offers two justifications.
First, the state contends that, as a Hispanic defendant, Moriyon lacked standing to question the state’s exercise of peremptory challenges. This court, however, has held repeatedly that “[a] defendant, whatever his race, has standing to challenge the arbitrary exclusion of members of any race for grand or petit jury service.” Castillo v. State, 466 So. 2d 7, 8 n. 1 (Fla. 3d DCA 1985) (following Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), approved in part, quashed in part on other grounds, 486 So. 2d 565 (Fla.1986); Rodriguez v. State, 539 So. 2d 612 (Fla. 3d DCA 1989); Parrish v. State, 540 So. 2d 870 (Fla. 3d DCA 1989); Hernandez v. State, 538 So. 2d 521 (Fla. 3d DCA 1989); Del Sol v. State, 537 So. 2d 693 (Fla. 3d DCA 1989).
The Florida supreme court limited the impact of Neil to “peremptory challenges of distinctive racial groups solely on the basis of race,” reserving for another day the question whether Neil is implicated where group bias is based upon “religious, ethnic, sexual, or other grounds.” 457 So. 2d at 487. If we were not sufficiently clear in Castillo, where we alluded to the question of standing to protest the exclusion from jury service of an identifiable group other than the defendant’s, we now hold explicitly that a party may request an inquiry into the use of peremptory challenges on the basis of ethnicity. Standing exists whether the defendant is Hispanic, rather than black, as in Castillo and Del Sol, or a Hispanic whose defense counsel is black, as in the case now before us.3 Neil and other cited cases evince a juridical concern to increase rather than to diminish minority participation on trial juries.4 Second, the state urges that the trial court did in fact conduct a Neil inquiry just prior to swearing in the jury. A careful review of the record demonstrates that the trial court conducted the most perfunctory of inquiries and accepted at face value the state’s proffered reasons for excluding black veniremembers from the jury. It appears that the hearing was curtailed without allowing a full presentation by the defense because of the erroneous premise that Neil was inapplicable. This prevented the necessary development of a complete record, which is an essential prerequisite both for the trial judge and for appellate review.5 “[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.” Slappy, 522 So. 2d at 22.
Reversed and remanded for a new trial. Conflict certified.
. We find no abuse of discretion in the trial court’s denial of Moriyon’s motion to sever his trial from that of codefendant Lourdes Garcia Lavin. Severance is not required where, as here, the antagonistic defenses amount to nothing more than codefendants blaming one another for the crime. O'Callaghan v. State, 429 So. 2d 691 (Fla.1983); McCray v. State, 416 So. 2d 804 (Fla.1982).
. Voir dire was conducted outside the presence of the trial court. Upon our request, the parties furnished supplemental briefs on the issue of a trial judge's absence during voir dire in light of the supreme court’s recent decision in Brown v. State, 538 So. 2d 833 (Fla.1989).
In Brown, the court recognized that a judge’s presence throughout a trial is a fundamental right which can be waived only by a fully informed defendant, not defense counsel, and only in limited circumstances. The parties also supplied this court with a copy of a waiver signed by Mori-yon in which he relinquished his right to have the trial judge present during voir dire. The identical waiver has been deemed to establish a prima facie valid consent. Kemp v. State, 541 So. 2d 1332 (Fla. 3d DCA 1989).
Having reviewed the supplemental briefs and the waiver, we conclude that Moriyon knowingly and intelligently waived his right to the judge’s presence during voir dire. Brown; Kemp; Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA), rev. denied, 436 So. 2d 100 (Fla.1983).
. We certify conflict with Kibler v. State, 501 So. 2d 76 (Fla. 5th DCA 1987), and Torres v. State, 541 So. 2d 1224 (Fla. 2d DCA 1989).
. See generally Jorgenson, Back to the Laboratory with Peremptory Challenges: A Florida Response, 12 Fla.St.U.L.Rev. 559, 567 n. 58 (1984).
.We caution that the absence of the trial judge during jury selection adds to the difficulty of conducting a proper Neil inquiry as the trial judge will not have personally observed voir dire and a transcript will not ordinarily be available. Where that is the case, the Neil hearing must be conducted with an additional measure of care.
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Bryant v. State, 565 So. 2d 1298 (Fla. 1990)…size again that hostility among defendants and the attempt by one defendant to place more blame on others are not justifiable reasons by themselves to require a severance. See, e.g., Dean v. State, 478 So. 2d 38 (Fla.1985); McCray; Moriyon v. State, 543 So. 2d 379 (Fla. 3d DCA), review dismissed, 549 So. 2d 1014 (Fla.1989); Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987). We find, however, that the trials should have been severed since Casteel, Irvine, and Rhodes were unable to cross-examine Bryant. A…
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Smith v. State, 574 So. 2d 1195 (Fla. 3d DCA 1991)…108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), it does not matter for these purposes whether other black jurors actually serve on the defendant’s jury. Slappy, 522 So. 2d at 21; see also Stubbs v. State, 540 So. 2d 255 (Fla. 2d DCA 1989); Moriyon v. State, 543 So. 2d 379 (Fla. 3d DCA 1989), review dismissed, 549 So. 2d 1014 (Fla.1989). Hence there can be no question of the reversible incorrectness of a lower court’s declination to rule, one way or the other, as to the Slappworthyness of the proffered explanation. Th…
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Sanchez v. Int'l Park Condo. Ass'n, Inc., 563 So. 2d 197 (Fla. 3d DCA 1990)…pport by analogy from the considerations underpinning State v. Neil, 457 So. 2d 481 (Fla.1984), City of Miami v. Cornett, 463 So. 2d 399 (Fla. 3d DCA), cause dismissed, 469 So. 2d 748 (Fla. 1985) (applying Neil to civil cases), and Moriyon v. State, 543 So. 2d 379, 380 (Fla. 3d DCA), review dismissed, 549 So. 2d 1014 (Fla.1989). Jury service is a collegial process. It may be that the other jurors were not affected by the remarks made by juror six. Juror six was, however, an active participant in the delibera…
Authorities Cited (16 total)
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- Peters v. Kiff, 407 U.S. 493 (U.S. 1972)
- Ervin McCRAY v. State, 416 So. 2d 804 (Fla. 1982)
- State v. Castillo, 486 So. 2d 565 (Fla. 1986)
- O'Callaghan v. State, 429 So. 2d 691 (Fla. 1983)
- Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983)
- Brown v. State, 538 So. 2d 833 (Fla. 1989)
- Kibler v. State, 501 So. 2d 76 (Fla. 5th DCA 1987)
- Parrish v. State, 540 So. 2d 870 (Fla. 3d DCA 1989)