FRANK RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Richardson's cocaine convictions were reversed due to improper use of a peremptory challenge to strike the only black juror on the venire panel, violating established precedent on racial discrimination in jury selection. The court remanded for a new trial and clarified that the state may proceed on only one of the two cocaine-related charges due to double jeopardy principles.
The court reversed Richardson's convictions, holding that the prosecutor's peremptory challenge to strike Borson violated precedent because the stated reason for excusal (her response about the hypothetical statute) was equally applicable to other seated jurors, making the reason presumptively pretextual. The court also held that defense counsel's subsequent approval of the final jury panel did not constitute a waiver of the Neil claim since Borson had already been excused when counsel expressed approval.
[1] The elimination of all minority venire members, even if their number totals only one, shifts the burden to the state to justify the excusal upon proper defense motion.
[2] A prosecutor's stated reason for striking a juror is not supported by the record and is presumptively pretextual if the same reason could have been applied to seated juro…
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Join FLexlaw to unlock all legal intelligence“The act of eliminating all minority venire members, even if their number totals only one, shifts the burden to the state to justify the excusal upon proper defense motion.”
Establishes the legal standard that striking the only minority juror triggers the burden on the prosecution to justify the peremptory challenge
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Join FLexlaw to unlock all legal intelligenceRichardson was charged with purchase of cocaine within 1,000 feet of a school and possession of cocaine based on criminal acts occurring on January 23…
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PER CURIAM.
We reverse appellant's convictions and sentences for the purchase of cocaine within 1,000 feet of a school and possession of cocaine and remand for a new trial.
Appellant persuasively contends that the prosecution improperly exercised a peremptory challenge to strike a black juror in direct violation of State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), and State v. Neil, 457 So. 2d 481 (Fla.1984).
In the instant case, the state exercised a peremptory challenge to strike the only black juror on the panel, Marilyn Bor-son. The act of eliminating all minority venire members, even if their number totals only one, shifts the burden to the state to justify the excusal upon proper defense motion. Reynolds v. State, 576 So. 2d 1300 (Fla.1991). After the state peremptorily excused Borson, the trial court, not defense counsel, initiated the inquiry into the state’s reasons. However, when the trial court asks for justification, it is appropriate to examine the answers given. Taylor v. State, 491 So. 2d 1150, 1151 (Fla. 4th DCA), rev. denied, 501 So. 2d 1284 (Fla.1986).
During voir dire, the prosecutor essentially asked the members of the venire whether they thought that the statute involved should apply to a person’s use of marijuana in their own home, if that home is located within 1,000 feet from a school. Borson responded that it should not.
However, when asked the same question, both Judith Browne and Castoria Wilson, both of whom were seated on the jury, gave the identical response.
Additionally, Robert Finch, who was also seated on the jury responded, “Not particularly.” It should be noted that this question was posed to all the members of the venire before Borson was excused.
Therefore, the reason given for striking Borson could have been equally applied to jurors who were not challenged; consequently, the prosecutor’s reason is not supported by the record and is presumptively pretextual. Slappy.
The state also contends, however, that Richardson is barred from raising his Neil claim on appeal because defense counsel affirmatively expressed his approval of the jury actually selected shortly after the trial court’s inquiry occurred.
The state asserts that defense counsel’s affirmative statement that he was satisfied with the jury constituted a waiver to any subsequent collateral attack based on Neil grounds.
However, at the time defense counsel expressed his approval of the jury, Borson had already been excused.
We hold that defense counsel’s subsequent expression of approval of the final jury panel fails to constitute such a waiver. Appellant’s alleged criminal acts occurred on January 23, 1988, and both parties agree that this appeal is governed by the double jeopardy principles set forth in Carawan v. State, 515 So. 2d 161 (Fla.1987). Under the Carawan analysis, dual convictions for both the purchase and possession of the same cocaine cannot stand.
Accordingly, on remand, the state may proceed with a new trial on only one of these charges. Should the state proceed on the purchase of cocaine within 1,000 feet of a school charge, we in no way limit instruction of the jury on the lesser-included offense of possession so that the jury may exercise its inherent “pardon power.” See State v. Wimberly, 498 So. 2d 929 (Fla.1986); State v. Baker, 456 So. 2d 419 (Fla.1984).
GLICKSTEIN, WARNER and GARRETT, JJ., concur.
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Booker v. State, 773 So. 2d 1079 (Fla. 2000)…. State, 732 So. 2d 22, 24 (Fla. 4th DCA 1999); Randall v. State, 718 So. 2d 230, 232 (Fla. 3d DCA 1998); Overstreet v. State, 712 So. 2d 1174, 1177 (Fla. 3d DCA 1998); Stroud v. State, 656 So. 2d 195, 196-97 (Fla. 2d DCA 1995); Richardson v. State, 575 So. 2d 294, 295 (Fla. 4th DCA 1991). However, after [*1090] carefully reviewing the record in the present case, we determine that the State’s proffered reason for peremptorily challenging Ms. Filer was not equally applicable to Mr. Pepper, and, therefore, the…
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Overstreet v. State, 712 So. 2d 1174 (Fla. 3d DCA 1998)…e to Ms. Barrera, who was not stricken, it can hardly be deemed non-pretextual. See Daniel, 697 So. 2d at 960; Stroud v. State, 656 So. 2d 195, 196-97 (Fla. 2d DCA 1995); Givens v. State, 619 So. 2d 500, 502 (Fla. 1st DCA 1993); Richardson v. State, 575 So. 2d 294, 295 (Fla. 4th DCA 1991); Floyd v. State, 511 So. 2d 762, 765 (Fla. 3d DCA 1987). It occurs to us from the record that the State was successful in camouflaging the pre-textual nature of its strike of Ms. Thomas only because of the lower court’s fau…
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Daniel v. State, 697 So. 2d 959 (Fla. 2d DCA 1997)…iling to reject the state’s explanation as pretextual. Stroud v. State, 656 So. 2d 195 (Fla. 2d DCA 1995)(strike based on briefness of juror answer was insufficient where other juror responses on the same issue were also brief); Richardson v. State, 575 So. 2d 294 (Fla. 4th DCA 1991)(strike based on challenged juror’s response which was similar to opinion of unchallenged juror was improper). Because the trial court erred in failing to examine the genuineness of the state’s reasons for striking the Hispanic v…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Men's Int'l Prof'l Tennis Council v. Volvo N. Am. Corp., 487 U.S. 1219 (U.S. 1988)
- Waste Mgmt. of Wis., Inc. v. Wis. Dep't of Natural Res., 487 U.S. 1219 (U.S. 1988)
- Reynolds v. State, 576 So. 2d 1300 (Fla. 1991)
- Taylor v. State, 491 So. 2d 1150 (Fla. 4th DCA 1986)