FREDERICK FOSTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1990-02-27
No. 89-594
Before HUBBART, BASKIN and GODERICH, JJ.
557 So. 2d 634 Florida District Court of Appeal, Third District (1990) Negative Treatment
Cited by 29 cases

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Synopsis

Frederick Foster, a black defendant, appealed his convictions for grand theft and resisting an officer without violence, arguing that the prosecution improperly used peremptory challenges to exclude black jurors from the jury panel. The Florida Third District Court of Appeal reversed, finding that the state failed to provide racially neutral explanations for its peremptory challenges and that the state failed to prove ownership of the allegedly stolen vehicle.


Holding

The court reversed Foster's convictions, holding that the state failed to provide racially neutral explanations for all of its peremptory challenges. The prosecutor's stated reason of a 'feeling' about the third juror was insufficient, as were her marital status and occupation without connection to the case facts. Additionally, the state's conviction for grand theft must be reversed because the state failed to prove ownership of the vehicle when the witness's testimony was improperly supplemented by a repair receipt.


Headnotes

[1] A party objecting to the discriminatory use of peremptory challenges must demonstrate that the challenged jurors are members of a distinct racial group and that there is…

[2] Once a prima facie case of discriminatory use of peremptory challenges is established, the burden shifts to the challenging party to provide a clear, specific, and racial…

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Key Quotes

“the burden shifts to the state to provide a 'clear and reasonably specific' racially neutral explanation of 'legitimate reasons' for the state's use of its peremptory challenges.”

Establishes the legal standard for evaluating whether the prosecution has provided legitimate, racially neutral reasons for peremptory challenges after a defendant raises a discrimination objection.

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Facts & Procedural History

Foster was charged with grand theft of an automobile owned by Clara Suarez and resisting an officer without violence. During jury selection, the state…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

Frederick Foster appeals his convictions and sentences for grand theft and resisting an officer without violence. We reverse.

Foster, a black male, was charged with grand theft of an automobile owned by Clara Suarez and with resisting an officer without violence. The case proceeded to trial. During voir dire, five of six black prospective jurors were excused: one was dismissed for cause; one was dismissed peremptorily by the defense; and three were dismissed peremptorily by the state. After the state’s third peremptory challenge, defense counsel objected on the ground that the challenges had been used to exclude blacks from the jury panel.

The trial court requested the state to give its reasons for the exercise of its challenges. The state replied that two of the three prospective jurors had been excused because they said they would have a difficult time sitting in judgment of another and could follow the law only if compelled to do so.1 The reason the prosecutor supplied for the third challenge was that the individual “is a stable person and I did not get a good feeling about [her]. I believe she was a widow, two children, she worked for custodian of the school board.” Counsel for the state also mentioned that he was striking the third juror in order to reach another potential juror he felt was stable. Apparently accepting these reasons, the trial court overruled defense counsel’s objection and jury selection continued. Prior to the impaneling of the jury, Foster’s counsel renewed his objection, to no avail. The trial culminated in a verdict of guilt as to both offenses.

The trial court entered convictions in accordance with the verdicts, and Foster filed this appeal.

The Florida Supreme Court established the procedure for determining whether peremptory challenges have been improperly utilized in a discriminatory manner.

First, the defense “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 the peremptory challenges are being exercised solely on the basis of race.” State v. Neil, 457 So. 2d 481, 486 (Fla.1984). If the trial court decides that “there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race,” Neil, 457 So. 2d at 486, then the burden shifts to the state to provide a “ ‘clear and reasonably specific’ racially neutral explanation of ‘legitimate reasons’ for the state’s use of its peremptory challenges.” State v. Slappy, 522 So. 2d 18, 22 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).

In deciding whether the state has met its burden and has not merely provided reasons as a pretext for discriminatory conduct, the trial court must look for certain acts signaling the misuse of challenges, such as: “(1) alleged group bias not shown to be shared by the juror in question, (2) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel have questioned the juror, (3) singling the juror out for special questioning designed to evoke a certain response, (4) the prosecutor’s reason is unrelated to the facts of the case, and (5) a challenge based on reasons equally applicable to juror [sic] who were not challenged.” Slappy, 522 So. 2d at 22.

In the case under consideration, the defense objected to the state’s use of its peremptory challenges and demonstrated that the challenged people were members of a distinct racial group, the first step required by Neil.

The trial court did not expressly find there was a strong likelihood that the challenges had been exercised solely on the basis of race, but impliedly made such a finding because it asked the state to provide reasons for its challenges. Although the court accepted the state’s response as establishing its burden of proof, it should not have done so because the reasons furnished were not clearly racially neutral for all of the state’s peremptory challenges.2 The state’s reason for its peremptory challenge of the third juror was obviously insufficient: a “feeling” about a juror does not satisfy the Neil test. Slappy, 522 So. 2d at 23; Reed v. State, 14 F.L.W. 298 (Fla. June 15, 1989); see also Floyd v. State, 511 So. 2d 762 (Fla. 3d DCA), review denied, 545 So. 2d 1369 (Fla.1987).

Furthermore, the prospective member’s marital status or occupation are not valid reasons unless those facts have some connection to the facts of the case, Reed; Slappy; Mayes v. State, 550 So. 2d 496 (Fla. 4th DCA 1989); no such connection is discernible in this record.

Additional evidence of improper use of challenges is the fact that the state accepted a single mother as a juror after it had excused the third juror because she was a widow with children. See Roundtree v. State, 546 So. 2d 1042 (Fla.1989); Parrish v. State, 540 So. 2d 870 (Fla. 3d DCA), review denied, 549 So. 2d 1014 (Fla.1989); Floyd. As to the prosecutor’s remaining reason, to reach another juror, we again find impropriety. Although “eliminating one juror in order to reach another is a legitimate basis for exercising a peremptory challenge,” Kibler v. State, 546 So. 2d 710, 714 (Fla.1989), counsel must provide non-racial reasons for challenging black jurors instead of white jurors to make room on the jury. Kibler. After carefully examining the record, we conclude that the state did not carry its burden of providing a racially neutral explanation for its exercise of peremptory challenges even though the impaneled jury included one black member. See Slappy; Tillman v. State, 522 So. 2d 14 (Fla.1988); Floyd; Williams v. State, 551 So. 2d 492 (Fla. 1st DCA 1989); Stubbs v. State, 540 So. 2d 255 (Fla. 2d DCA 1989).

Under these circumstances reversal is required.

Foster also argues that the trial court erred in denying his motion for judgment of acquittal after the state failed to establish that the vehicle stolen was not the property of Clara Suarez.

We agree. To convict an individual of grand theft pursuant to section 812.014, Florida Statutes (1987), the state must prove the ownership of the stolen property in one other than the defendant. R.C. v. State, 481 So. 2d 14 (Fla. 1st DCA 1985); see also C.B. v. State, 519 So. 2d 686 (Fla. 3d DCA 1988); A.L. v. State, 359 So. 2d 583 (Fla. 3d DCA 1978); Wilcox v. State, 183 So. 2d 555 (Fla. 3d DCA 1966); Nelson v. State, 453 So. 2d 473 (Fla. 2d DCA 1984); O’Bryan v. State, 359 So. 2d 545 (Fla. 4th DCA 1978).

Clara Suarez, the sole witness to testify as to ownership of the vehicle, was unable to remember the tag number of her automobile, and stated that she was uncertain whether anything would refresh her recollection. A document may be used to refresh recollection, but it may not be used to put words in a witness’s mouth. Esperti v. United States, 406 F. 2d 148 (5th Cir.), cert. denied, 395 U.S. 938, 89 S.Ct. 2005, 23 L.Ed.2d 458 (1969); see also Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983), discussion quashed, conviction approved on other grounds, 476 So. 2d 170 (Fla.1985); C. Ehrhardt, Florida Evidence § 613.1 (1984).

The automobile repair receipt shown to Clara Suarez did more than refresh her recollection; it supplied her the missing information without which the state was unable to prove ownership of the automobile. Foster’s conviction for resisting a police officer without violence must be reversed because impaneling of the jury was based on improperly exercised challenges, denying him the right to an impartial jury. Art. I, § 16, Fla. Const.; Neil.

Reversed and remanded for new trial solely on the charge of resisting an officer without violence.

. We note that the state did not challenge white jurors who gave similar responses.

. The reasons given for the first two peremptory challenges, that the prospective panel members could not follow the law unless compelled and could not sit in judgment of another, are racially neutral and valid. Woods v. State, 490 So. 2d 24 (Fla.), cert. denied, 479 U.S. 954, 107 S.Ct. 446, 93 L.Ed.2d 394 (1986).


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Citator

Cited By (15 total)

  • Nowell v. State, 998 So. 2d 597 (Fla. 2008)
    …challenge. See State v. Holiday, 682 So. 2d 1092, 1094 & n. 1 (Fla.1996) (affirming the trial court’s refusal to allow a peremptory strike based on the defense counsel’s “gut feeling” that the potential juror would favor the State); Foster v. State, 557 So. 2d 634, 635 (Fla. 3d DCA 1990) (“[A] ‘feeling’ about a juror does not satisfy the Neil test.”). This is especially so when the proponent of the strike points to nothing in the record, such as worrisome behavior or questionable answers given by the potentia…
  • Green v. State, 572 So. 2d 543 (Fla. 2d DCA 1990)
    …) (state peremptorily challenged five prospective black jurors out of its first seven peremptory challenges); Slappy, 522 So. 2d at 19 (“Four of the state’s six peremptory challenges were used to exclude blacks from the panel....”); Foster v. State, 557 So. 2d 634 (Fla. 3d DCA 1990) (state had peremptorily challenged three out of five prospective black jurors); Timmons v. State, 548 So. 2d 255, 257 (Fla. 2d DCA 1989) (state had peremptorily challenged the sole prospective black juror on the venire after anoth…
  • Slater v. State, 625 So. 2d 1334 (Fla. 3d DCA 1993)
    …by the state, and in the possession conviction, as his second degree conviction was enhanced to a life felony because of the possession of a firearm. We disagree as to the first. Adams v. State, 559 So. 2d 1293 (Fla. 3d DCA 1990); Foster v. State, 557 So. 2d 634, 635 (Fla. 3d DCA 1990). We agree as to the second. Beaubrum v. State, 595 So. 2d 254 (Fla. 3d DCA 1992), quashed in part, 616 So. 2d 9 (Fla.1993); Grantham v. State, 545 So. 2d 945 (Fla. 1st DCA 1989), rev. denied, 553 So. 2d 1166 (Fla.1989). There…

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