RICHARD SUGGS A/K/A TIMOTHY BOMAR A/K/A DENNIS BOMAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1993-10-01
No. 91-1641
DIAMANTIS, J., concurs., DAUKSCH, J., concurs in conclusion only, without opinion.
624 So. 2d 833 Florida District Court of Appeal, Fifth District (1993) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Richard Suggs challenges his grand theft conviction on the ground that the prosecutor improperly used a peremptory challenge to strike the only Black juror who had been accepted by both sides, based solely on a vague "bad feeling" about the juror's response during voir dire. The court reversed, holding that a peremptory challenge must be supported by a race-neutral reason grounded in the record, not subjective feelings.


Holding

The court reversed, holding that a peremptory challenge must be supported by a specific, race-neutral reason grounded in the record that is clear, logical, and susceptible to appellate review. A prosecutor's "bad feeling" is insufficient to support a peremptory challenge because it is too easily used to mask racial or other impermissible bias, and any subjective impressions based on tone of voice or facial expression must be stated on the record and confirmed by the trial judge.


Headnotes

[1] A peremptory challenge based on a prosecutor's "bad feeling" about a juror's response, without further articulation or record support, is insufficient to overcome a chall…

[2] When a trial judge conducts a Neil inquiry and finds a peremptory challenge was not racially motivated, that finding is entitled to great deference on appellate review.

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Key Quotes

“Bad feelings are not sufficient to withstand a Neil inquiry because it would be too easy to mask a racially motivated (or other improper) basis for exercising a peremptory challenge.”

Establishes the legal standard that subjective impressions alone cannot support a peremptory challenge challenge.

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Facts & Procedural History

During jury selection in a grand theft case, juror Green, the only Black member of the venire questioned, was initially accepted by both the public de…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

Pursuant to the direction of the Florida Supreme Court, 620 So. 2d 1231, we issue the following opinion to resolve the State v. Neil, 457 So. 2d 481 (Fla.1984) issue involved in this case. Suggs was found guilty of grand theft after his jury trial. He argues the trial court erred when it allowed the state attorney to back-strike the only black member of the jury who had been (at that point) accepted by both sides for service on the jury panel, through the exercise of a peremptory challenge. We reverse.

During voir dire, the state attorney (Fad-dis) questioned and talked with many members of the venire, including the juror in question, Green. Faddis inquired about Green’s job and responsibilities as a supervisor for UPS. Nothing remarkable occurred during that exchange.

When the public defender (Jewett) took his turn at voir dire, he advised the venire that his client would probably testify at trial. However, he told them Suggs had prior criminal convictions. He asked what effect that information would have on the prospective jurors’ thinking.

To juror Green, Jewett directed the following question: “Will that make you judge his testimony?” Green replied, “Make me listen more intently to the actual evidence in this case.” To another member of the venire (White), Jewett posed the same question. White said, “I’d just listen to the facts.” White was not later struck by a peremptory challenge, but it is also clear from the record that he was not seated as a prospective juror. The venire was then excused and the process of selecting the jury commenced. Neither side challenged any prospective juror for cause. Both initially accepted Green as juror number one. The public defender exercised three peremptory challenges against jurors number three, four and eight. Both accepted juror number nine. At that point, the state attorney back-struck Green. Both accepted juror number ten.

Then, Jewett objected. He said, “Your Honor, we’d ask that the State give reasons why Mr. Green was struck, the only black juror we’ve gone through?” Faddis argued that the public defender had not made a sufficient showing to require him to explain his reasons for striking Green. However, the judge pressed him to state his reasons.

Faddis admitted he did not have a reason he could fully express. He said he had a “bad feeling” about Green, which stemmed from his response to Jewett’s question at voir dire concerning Sugg’s prior criminal record. “He said I’m going to have to look at the evidence a little bit more carefully.... That’s the response I didn’t like.” Faddis did not articulate why he disliked Green’s response, nor does the record support any inference his objection was based on the manner or tone of voice employed by Green in his response.

After hearing argument and considering the conduct of the trial up to that point by both attorneys, the trial judge ruled that he did not think there was a pattern of racial discrimination at this trial by either side. Further, he determined that the state’s challenge of Green (in particular) was not based on a racial or other improper motive. He said, “When you start striking based on race or religion or nationality ... — that’s something else again. I don’t have any indication that is the case here. So I’m going to allow the strikes.” Jewett accepted the jury panel “other than our prior objection to striking of number one [Green].”

Although Jewett in this case may not have made a sufficient showing that the state’s peremptory challenge as to Green was likely motivated by racial bias,1 the trial judge gave him the benefit of the doubt,2 and initiated a Neil inquiry.3 He also made a clear ruling on the record rejecting any improper basis for the challenge. Most reversals for improper peremptory challenges in Florida have occurred in cases where the trial judge does not make a Neil inquiry or a clear ruling. See Reynolds v. State, 576 So. 2d 1300 (Fla.1990); Bryant v. State, 565 So. 2d 1298 (Fla.1990); Kibler v. State, 546 So. 2d 710 (Fla.1989); State v. Neil; Johans v. State, 587 So. 2d 1363 (Fla. 5th DCA1991).

Where the trial judge conducts a Neil inquiry and finds the challenge was not racially motivated, that finding must be given great deference by an appellate court. Files v. State, 586 So. 2d 352 (Fla. 1st DCA1991); Green v. State, 583 So. 2d 647 (Fla.1991). The trial judge is the fact-finder in this drama, and must resolve all questions of credibility. Part of the basis for the trial judge’s findings is his or her observation of the attorneys’ interactions with the venire and each other. Entering into this determination are things not encapsulated in the record on appeal; ie., tone of voice, speech pattern, facial expression, and body language. Further, as our Florida Supreme Court has said, the appellate courts must rely primarily on the inherent fairness and color blindness of the trial judges to see that peremptory challenges are not exercised to mask improper motives or bias. Reed v. State, 560 So. 2d 203 (Fla.1990).

It appears that the standard of review for an appellate court in a case such as this one is to determine whether reasonable persons would agree the peremptory challenge was exercised for racial or other improper considerations and whether the reasons for the challenge are supported by the record. State v. Slappy, 522 So. 2d 18 (Fla.1988); Knight v. State, 559 So. 2d 327 (Fla. 1st DCA1990). The reasons given for a peremptory challenge need not rise to the level of a challenge for cause,4 but they must stem from something established by the record which is race-neutral. Slappy.

The problem in Knight was that although the reasons given for striking three of the black jurors were rational and supported by the record, the reasons for striking the fourth juror made no sense to the appellate judge panel, although they were supported by the record. As summarized in the opinion, the fourth juror was challenged because she was single, had four children, did not own her own home, and she worked as a cook. The majority opinion expressed surprise that a prosecutor would find these circumstances make a person undesirable as a juror, but since the trial judge expressly found that no improper racial discrimination was involved in the strike, it declined to find error. This ease is somewhat like Knight. As in Knight, the five categories for finding pretex-tual strikes outlined in Slappy do not exist: 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 had questioned the juror; 3) singling the juror out for special questioning designed to evoke a certain response; 4) a prosecutor’s reason is unrelated to the facts of the ease; and 5) a challenge based on reasons equally applicable to a juror who was not challenged. 522 So. 2d at 22. However, the reason given for striking Green is not clear and logical, nor susceptible of appellate assurance it was not based on racial or other impermissible grounds.

The primary reason for striking Green was the prosecutor’s reaction to his answer to a question posed by Jewett. From this he got a “bad feeling.” Bad feelings are not sufficient to withstand a Neil inquiry because it would be too easy to mask a racially motivated (or other improper) basis for exercising a peremptory challenge. See Alen v. State, 596 So. 2d 1083 (Fla. 3d DCA1992) (Hubbard, J., concurring). Had the prosecutor in this case been able to tie his “bad feeling” to a specific answer, to a specific question in the record, our decision would have been otherwise. But the response here does not on its face appear logically adverse to the state’s case. It appears to be, at best, a non-reason.5

If the prosecutor’s “bad feeling” had been based on Green’s tone of voice or facial expression used in answering the question, that should have been stated on the record and called to the attention of the trial judge for confirmation. The absence of any record manifestations of lack of racial bias requires a reversal in this case since there is no objective basis in this record upon which we can seize to support the trial judge’s exercise of discretion to allow the striking of this juror from the panel.6

REVERSED and REMANDED.

DIAMANTIS, J., concurs.

DAUKSCH, J., concurs in conclusion only, without opinion.

. See Taylor v. State, 583 So. 2d 323 (Fla.1991).

. See State v. Slappy, 522 So. 2d 18 (Fla.1988).

. State v. Neil, 457 So. 2d 481 (Fla.1984).

. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

. "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 the jury selection should continue.” Neil, 457 So. 2d at 487.

. See Brown v. State, 624 So. 2d 299 (Fla. 3d DCA 1993); Stroder v. State, 622 So. 2d 585 (Fla. 1st DCA1993).


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Citator

Cited By

  • Daniel v. State, 697 So. 2d 959 (Fla. 2d DCA 1997)
    …law is clear that a “feeling” about a juror is not a valid, neutral reason to exercise a strike, absent support in the record. Nunez v. State, 664 So. 2d 1109 (Fla. 3d DCA 1995); Bernard v. State, 659 So. 2d 1346 (Fla. 5th DCA 1995); Suggs v. State, 624 So. 2d 833 (Fla. 5th DCA 1993). There is no evidence of Guillermo’s bias for defense counsel in the record. Therefore, the trial court’s acceptance of the prosecutor’s stated reason for the strike as race neutral is erroneous. Pretext may exist when a juror i…
  • Nunez v. State, 664 So. 2d 1109 (Fla. 3d DCA 1995)
    …ny where none otherwise existed. Therefore, we find that the prosecutor’s “observation” about Ms. Lane could not be deemed a race neutral reason when it could not be tied to a specific answer to a specific question on the record. See Suggs v. State, 624 So. 2d 833, 836 (Fla. 5th DCA1993) (prosecutor’s “bad feelings” about a prospective juror were insufficient to withstand a Neil inquiry when such feelings cannot be tied to a specific answer to a specific question). If the State truly did not believe Ms. Lane…
  • Wendall Goney, Sr. v. State, 691 So. 2d 1133 (Fla. 5th DCA 1997)
    …Holiday, 682 So. 2d 1092 (Fla.1996); Melbourne v. State, 679 So. 2d 759 (Fla.1996); State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); State v. Neil, 457 So. 2d 481 (Fla.1984); Suggs v. State, 624 So. 2d 833 (Fla. 5th DCA 1993).…

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