BRYANT HICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1991-12-18
No. 91-0503
GARRETT and FARMER, JJ., concur.
591 So. 2d 662 Florida District Court of Appeal, Fourth District (1991) Caution
Cited by 18 cases

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Synopsis

Bryant Hicks appealed his cocaine possession conviction on two grounds: that the trial court improperly denied his objection to the prosecutor's peremptory challenge of the only black juror, and that the court admitted prior consistent statements of a prosecution witness. The appellate court reversed, finding the prosecutor's race-neutral justifications for striking the black juror constituted pretextual discrimination.


Holding

The court reversed, finding that the prosecutor's stated reasons for challenging Mrs. Tolbert constituted pretextual discrimination and violated Batson protections against race-based peremptory challenges. The court declined to address the second issue because the appellant failed to preserve the specific objection at trial.


Headnotes

[1] A peremptory challenge is invalid if the stated reasons for its exercise are a mere pretext for racial discrimination.

[2] A prosecutor's assertion that a prospective juror is liberal based solely on their occupation as a teacher is insufficient to establish a race-neutral reason for a peremp…

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Key Quotes

“Moreover, we cannot accept the state's contention that all elementary school assistants, and these two in particular, were liberal. If they indeed possessed this trait, the state could have estab[lished] it by a few questions taking very little of the court's time.”

Establishes that generalized claims about an occupation's political views must be supported by specific questioning or evidence, not accepted as face value justifications for peremptory challenges

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Facts & Procedural History

During jury selection in a cocaine possession trial, the prosecution exercised a peremptory challenge to remove Mrs. Tolbert, the only black person on…

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Opinion of the Court
DELL, Judge.

DELL, Judge.

Bryant Hicks appeals from his conviction and sentence for possession of cocaine. He raises two points on appeal. He contends that the trial court erred when it denied his objection to the state’s peremptory challenge of the only black person on the jury venire and when it permitted the state to introduce testimony of prior consistent statements of a state witness. We reverse.

The state exercised a peremptory challenge to strike a Mrs. Tolbert, the only black prospective juror. In response to the court’s questions following appellant’s objection, the state offered three reasons for its challenge; first, Mrs. Tolbert was the only teacher on the panel. The state argued that teachers in general are more liberal in their thinking than people in other occupations. Next, the fact that both she and her husband were music teachers worried the prosecutor because musicians “have more frequenting in and of themselves of occupations with illegal drugs, alcohol, substance abuse in general than other members of the population.” Finally, the state asserted that Mrs. Tolbert’s previous service as an alternate juror in a criminal case in which the jury returned a not guilty verdict constituted valid grounds for the exercise of its challenge.

In State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), the supreme court established a nonexclusive list of factors for the court to consider when it evaluates whether the state has given non-racially related reasons for the exercise of a peremptory challenge or whether those reasons constitute a mere pretext. In Slappy, the court rejected the state’s challenge of two school teachers:

Moreover, we cannot accept the state’s contention that all elementary school assistants, and these two in particular, were liberal. If they indeed possessed this trait, the state could have estab lished it by a few questions taking very little of the court’s time.

Id. at 23. During preliminary questioning, the trial court established that Mrs. Tolbert was a music teacher for kindergarten through sixth grade, she had been elected teacher of the year at her school, her husband was a band director at a high school, and she had two children in college. The record shows that the state did not question Mrs. Tolbert concerning her occupation and what effect it might have on her political beliefs or ability to serve as a juror. We also find nothing in this record that would support the state’s argument that the occupation as music teacher of both Mrs. Tolbert and her husband would cause her to have a greater tolerance for the use of controlled substances.

Finally, the state did not extensively question either of the two other prospective jurors who had prior jury service and who had actually deliberated and reached a verdict in a criminal case. One of these two served in this case and the state excused the other mainly on the ground that he had completed two years of law school. The record supports appellant’s argument that the state singled out Mrs. Tolbert in its questioning about prior jury service.

Our review of the record satisfies us that the state’s reasons for challenging Mrs. Tolbert constituted a mere pretext and that the state did not exercise its challenge based upon race-neutral reasons. Therefore, we reverse and remand this case for a new trial.

We note as to appellant’s second point on appeal that appellant failed to preserve its objection to Officer Brent’s testimony. Although appellant made a general hearsay objection to Officer Brent’s testimony, he failed to object on the specific ground which he now asserts for the first time on appeal. See Williams v. State, 414 So. 2d 509 (Fla.1982).

REVERSED and REMANDED.

GARRETT and FARMER, JJ., concur.


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Citator

Cited By

  • Bowden v. State, 787 So. 2d 185 (Fla. 1st DCA 2001)
    …the state articulates a facially acceptable reason; the trial court must also find record support for the reason to ensure the state has not given a pretextual explanation for an inappropriate challenge. Slappy, 522 So. 2d at 23-24; Hicks v. State, 591 So. 2d 662 (Fla. 4th DCA 1991); Gadson v. State, 561 So. 2d 1316 (Fla. 4th DCA 1990). House v. State, 614 So. 2d 647, 648 (Fla. 2d DCA 1993). While our supreme court receded from Slappy in Melbourne v. State, [*192] 679 So. 2d 759, 764 (Fla.1996), to the exte…
  • Johnson v. State, 600 So. 2d 32 (Fla. 3d DCA 1992)
    …41 So. 2d 1262 (Fla. 3d DCA 1989) (strike against juror from low socioeconomic background pretextual). Our conclusion gains support from the state’s failure to question prospective juror Ellis on either of the stated grounds. Slappy; Hicks v. State, 591 So. 2d 662 (Fla. 4th DCA 1991); Gadson v. State, 561 So. 2d 1316 (Fla. 4th DCA 1990). The state’s final reason for striking prospective juror Ellis, the presence of other black jurors on the panel, has repeatedly been ruled an invalid reason for excluding a b…
  • Cobb v. State, 825 So. 2d 1080 (Fla. 4th DCA 2002)
    …647 (Fla. 2d DCA 1993)(ruling that the state’s reason for excluding a black juror, that she worked in the mental health field and that those in that field were more liberal than conservative, could not sustain peremptory challenge); Hicks v. State, 591 So. 2d 662 (Fla. 4th DCA 1991)(finding that the state’s reason for challenging the only black person on jury venire in a drug case constituted mere pretext where reason offered was that juror was a music teacher, married to a musician, and thus likely to be mo…

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