DOUGLAS BLACKSHEAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2001-01-03
No. 4D99-3657
SHAHOOD and GROSS, JJ., concur.
774 So. 2d 893 Florida District Court of Appeal, Fourth District (2001) Positive Treatment
Cited by 2 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

Douglas Blackshear appealed his conviction for three counts of robbery with a firearm, challenging the trial court's denial of a peremptory challenge and arguing he was entitled to a lesser-included offense instruction. The Fourth District Court of Appeal affirmed, finding the trial court properly rejected his peremptory challenge as pretextual and did not abuse its discretion.


Holding

The trial court did not abuse its discretion in denying the peremptory challenge because, although the stated reason (nurse status) was gender-neutral on its face, the explanation for the challenge was not gender-neutral, as it specifically referenced concern about how 'she' as 'a lady juror' might be affected. Blackshear was not entitled to a lesser-included offense instruction for grand theft under the allegations in the information.


Headnotes

[1] A prosecutor's attempt to exercise a peremptory challenge without a race-neutral reason violates a potential juror's constitutional right to serve without discrimination.

[2] A trial court has discretion to determine the credibility of reasons offered for a peremptory challenge.

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Key Quotes

“The prosecutor's attempt to exercise a peremptory challenge on a black female, when he had no race neutral reason, was not only unprofessional, but would have, if allowed, violated her constitutional right to serve on a jury without being discriminated against.”

Establishes the court's condemnation of the prosecutor's discriminatory strike and the constitutional right at stake

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Facts & Procedural History

Blackshear was convicted of three counts of robbery with a firearm. During jury selection, Blackshear exercised peremptory challenges on two females a…

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Opinion of the Court
KLEIN, J.

KLEIN, J.

We withdraw our opinion which was filed on November 22, 2000 and substitute the following opinion.

Appellant was convicted of three counts of robbery with a firearm and seeks a new trial on the ground that he was improperly denied a peremptory challenge of a juror. We affirm.

The challenges to jurors began with appellant exercising peremptory challenges on two females and one male with no objection from the state. The state then attempted to exercise a peremptory challenge on a black female and appellant asked for a race neutral reason. The state responded:

MR. HOLDEN: Judge, I don’t have any race neutral reason but I will withdraw my strike, go back to defense strike that they used. I didn’t bring that up at that time. I believe everybody now is a protected party.

The state then acknowledged that the only reason it was now objecting to peremptory strikes already exercised by appellant was because the appellant was objecting to the state’s striking the black female. The trial court expressed concern with the tactics being used by the state, noted that this was not the first time the court had observed this type of thing, and suggested that it should be addressed by an appellate court.

The prosecutor’s attempt to exercise a peremptory challenge on a black female, when he had no race neutral reason, was not only unprofessional, but would have, if allowed, violated her constitutional right to serve on a jury without being discriminated against.1 We remind the prosecutor that it is his ethical duty to see that justice is done rather than to secure convictions. Smith v. State, 95 So. 2d 525 (Fla.1957); Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998).

The issue raised by appellant involves the trial court’s denial of his attempted peremptory strike of a woman. He argues that the trial court abused its discretion, because his explanation that he was challenging her because she was a nurse was a gender neutral reason. When the trial'court asked why he did not want a nurse on the jury, appellant’s counsel responded that one of the other people charged in this case was shot and that person might be called to testify. He suggested that the woman’s experience as a nurse might affect her evaluation of that testimony. Although the explanation that the woman was a nurse was gender neutral, the explanation for the challenge was not gender neutral:

Judge, Artori Brown was shot. He might be called to testify in this case. Maybe that somehow impacts her ability to listen to evidence as a lady juror. She has certain expertise in the field, (emphasis supplied.)

Taken in context, it appears that the trial court considered and rejected the reasons given by counsel for the strike. This credibility issue was within the province of the trial court. Melbourne v. State, 679 So. 2d 759, 764 (Fla.1996). This challenge smacks of the same unprofessional-ism as did the prosecutor’s attempt to strike the black female.

We have considered appellant’s argument that he should have had an instruction on grand theft as a lesser included offense but conclude that, under the allegations of the information in this case, he was not entitled to such an instruction. We therefore affirm.

SHAHOOD and GROSS, JJ., concur. . State v. Slappy, 522 So. 2d 18 (Fla.1988); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


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Citator

Cited By

  • Villella v. State, 833 So. 2d 192 (Fla. 5th DCA 2002)
    …there was no affair, when in fact the defense proffered this evidence and sought to have it admitted. The prosecutor’s obligation is to secure justice, not victory at any cost. Diaz v. State, 797 So. 2d 1286 (Fla. 4th DCA 2001); Blackshear v. State, 774 So. 2d 893 (Fla. 4th DCA 2001). Because of the fundamentally unfair comments of the prosecutor, I concur with the granting of a new trial.…

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