TIMOTHY HUNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2017-08-16
No. 4D15-4475
Damoorgian and Kuntz, JJ., concur.
225 So. 3d 838 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 1 case

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Synopsis

Timothy Hunter appealed his convictions for attempted burglary and driving without a valid driver's license, arguing the trial court violated the Melbourne procedure by allowing the state to use a peremptory strike against an African American juror based on a reason equally applicable to non-African American jurors who were not struck. The Fourth District Court of Appeal agreed and reversed for a new trial.


Holding

The trial court abused its discretion in allowing the strike of Ms. T because the prosecutor's only race-neutral explanation applied equally to three non-African American jurors whom the state did not challenge, refuting any suggestion of genuineness. The court reversed and remanded for a new trial without reaching the issue of whether the strike of Ms. J was proper.


Headnotes

[1] A trial court abuses its discretion when it allows a peremptory strike based on a reason that applies equally to an unchallenged juror of a different race.

[2] When a party challenges a peremptory strike as discriminatory, the trial court must determine if the race-neutral reason offered is genuine or pretextual, considering all…

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Key Quotes

“Because the prosecutor's only race-neutral explanation for striking Ms. T applied equally to three non-African American jurors whom the state ultimately did not challenge, any suggestion of genuineness is refuted by the record.”

Establishes the dispositive principle that disparate application of a race-neutral reason to similarly situated jurors of different races refutes genuineness under Melbourne.

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Facts & Procedural History

During voir dire, prospective jurors Ms. T, Mr. W, Mr. S, and Mr. H each disclosed that family members had been arrested. The state sought to perempto…

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Opinion of the Court
Cynamon, Abby, Associate Judge.

Cynamon, Abby, Associate Judge.

Appellant appeals from his convictions entered after a jury found him guilty of attempted burglary and driving without a *839valid drivers’ license.1 Appellant raises several issues on appeal, only one of which we address here, as it is dispositive. Appellant asserts that the trial court reversibly erred when it allowed the state to use peremptory strikes on two African American jurors, Ms. T and Ms. J, in violation of the procedure articulated by the Florida Supreme Court in Melbourne v. State, 679 So.2d 759 (Fla. 1996). For the reasons that follow, we agree with appellant’s argument as to Ms. T, and reverse and remand this cause for a new trial.

The record indicates that one of the questions posed to prospective jurors during voir dire was whether any of their family members had been arrested. Prospective jurors Ms. T, Mr. W, Mr. S, and Mr. H each, stated that they had a family' member who had been arrested.

When the state sought to use a peremptory strike on Ms. T, an African American, the defense requested a race-neutral reason for the strike. The reason given by the state was the arrest of one of Ms. T’s family members. The defense challenged this strike, contending that the state’s reason was not genuine, since Mr. W and Mr. H, two prospective jurors whose family members had also been arrested, remained on the jury. In response, the state asserted that its reason for striking Ms. T had nothing to do with her race, but instead was based on the arrest of her family member. The trial court found that the state’s reason for striking Ms. T was race-neutral and allowed the strike. Appellant later renewed his objections to the state’s exercise of peremptory strikes, and accepted the panel subject to his prior objections.

The final jury panel included Mr. W, Mr. S, and Mr. H, who were all non-African American. Thus, three non-African American prospective jurors who stated they had family members who had been arrested remained on the jury, while the trial court allowed the state to use a peremptory strike on an African American prospective juror who had an arrested family member.

Our standard of review of this issue is abuse of discretion. Wimberly v. State, 118 So.3d 816, 820 (Fla. 4th DCA 2012).

When a party challenges a peremptory strike, asserting that it is racially discriminatory, Melbourne articulates a three-step procedure that trial courts must follow. First, the party challenging the strike must make a timely objection, must demonstrate that the challenged juror is a member of a distinct racial group, and must ask the trial court to ask for a reason for the strike. 679 So.2d at 764. Second, the party seeking to strike the juror must come forward with a race-neutral reason. Id., Third, the court must determine if the reason offered is genuine or is instead a pretext “given all the circumstances surrounding the strike.” Id.

In the case at bar, the record indicates that defense counsel timely objected, demonstrated that Ms. T was African American, and asked the trial court to ask the state .for a race-neutral reason for the strike. The state then came forward with a race-neutral reason for the strike, namely, the arrest of Ms. T’s family member. Thus, the - first two steps of Melbourne were satisfied.

This appeal turns on the third step of Melbourne. As part of its determination of genuineness, a trial court should consider, among other things, “the racial makeup of the venire; prior strikes exercised against the same racial group; a strike *840based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Id. at 764 n.8.

Florida courts have repeatedly found that it can be “racially discriminatory to exercise a peremptory challenge against a prospective juror in the minority where the proffered reason applies equally to a prospective juror in the majority.” Smith v. State, 799 So.2d 421, 424 (Fla. 5th DCA 2001). For example, in Foster v. State, 732 So.2d 22, 24 (Fla. 4th DCA 1999), we held that the trial court clearly erred in finding that the state’s reason for peremptorily striking two black jurors was genuine, where the asserted basis for the strikes— prior arrests of immediate family members—“was equally applicable to non-black jurors who were not challenged.” In so holding, we explained that “[bjecause there were no other race-neutral reasons proffered to justify the strike, any suggestion of genuineness in the State’s decision to strike these two black jurors was completely refuted.” Id.

Numerous other cases have held that a trial court’s finding of genuineness was clearly erroneous where the record reflected disparate treatment of similarly situated jurors. See Nowell v. State, 998 So.2d 597, 605 (Fla. 2008) (trial court erred in accepting the State’s “age-based justification” for a peremptory strike of a Hispanic juror as genuine, because the state’s proffered reason was also “clearly applicable” to a “similarly aged white male whom the state failed to challenge”); Stroia v. State, 119 So.3d 1274, 1279 (Fla. 4th DCA 2013) (trial court erred in finding that the state’s reason for striking an African American juror—that family members had been arrested for drug charges—was genuine where the state accepted two similarly situated white jurors); see also Landis v. State, 143 So.3d 974, 981 (Fla. 4th DCA 2014) (similar); Wallace v. State, 889 So.2d 928, 930 (Fla. 4th DCA 2004) (similar).

Here, even taking into account the trial court’s superior vantage point, we conclude that the trial court abused its discretion in allowing the strike of Ms. T. Because the prosecutor’s only race-neutral explanation for striking Ms. T applied equally to three non-African American jurors whom the state ultimately did not challenge, any suggestion of genuineness is refuted by the record. Indeed, when defense counsel specifically pointed out that there were other jurors who were still on the jury panel whose family members had also been arrested, the prosecutor did not attempt to explain the disparate treatment of Ms. T in comparison with similarly situated jurors. Nor did the prosecutor otherwise advance any argument that could support a finding of genuineness.

Because we find that it was reversible error to allow the state to peremptorily strike Ms. T without proffering a genuine race-neutral reason in support, we do not reach the issue of whether the strike of Ms. J was proper under Melbourne. We reverse and remand for a new trial.2

Reversed and Remanded for a new trial.

Damoorgian and Kuntz, JJ., concur.


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Cited By

  • Roberts v. State (Fla. 1st DCA 2019)
    …peremptory challenge on a prospective juror who is a member of a distinct racial group when the proffered reason applies equally to a prospective juror who is not a member of a distinct racial group can be racially discriminatory. Hunter v. State, 225 So. 3d 838, 839 (Fla. 4th DCA 2017). However, that is not what occurred here. During jury selection, the prosecutor used a hypothetical to explain the concept of burden of proof to the jury. The prosecutor asked the jury panel to believe that it was illegal…

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