NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006
ANDRE OWEN TURNBULL, Appellant, vs. THE STATE OF FLORIDA, Appellee.
** ** ** ** ** ** LOWER TRIBUNAL NO. 04-14596 CASE NO. 3D05-272
Opinion filed November 1, 2006. An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge. Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee. Before COPE, C.J., and GERSTEN and SUAREZ, JJ. PER CURIAM. Andre sentence reverse. Turnbull (“Turnbull”), driving as appeals a his conviction offender. and We
for
unlawful
habitual
The pertinent facts are as follows:
Two police officers
stopped Turnbull, an African-American man, for driving with a broken headlight. Turnbull admitted that he was driving with a
suspended license, but claimed it was out of necessity to rescue his stranded girlfriend. The officers reviewed Turnbull’s
driving record and arrested him.
The State charged Turnbull
with driving as a habitual traffic offender. At the beginning of voir dire, the first questions the State asked the prospective jurors were: (1) Do you think the police profile people when they drive down the street? and (2) Do you think that the police racially profile people? prospective jurors answered affirmatively. These Five five
prospective jurors were black. The State exercised peremptory strikes against four of the black venirepersons, Further, who the responded State to a the racial profiling for cause
questions.
used
challenge
against the remaining black venireperson, who responded to the racial profiling questions. The State used four peremptory strikes against: Locker Mich Jeanbaptiste (“Jeanbaptiste”), Linda Fortson Latson (“Latson”), Charlotte (“Smith”). Felicia Simmons (“Simmons”), and Susan Ann Smith
The defense timely objected to the strikes, stating
that the prospective jurors were black, and requested a “raceneutral” reason for the peremptory strikes.
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The
State’s
declared
reasons
for
striking
venireperson
Jeanbaptiste were that he had experiences with racial profiling and he was arrested for driving with a suspended license. The
trial judge accepted these reasons and sustained the State’s peremptory challenge of Jeanbaptiste. Next, the State articulated that venireperson Latson should be excluded because of her experiences with racial profiling and because the prosecutor thought her experiences would affect her impartiality. The trial judge upheld this reasoning even though
Latson explicitly stated that her experiences would not affect her impartiality. Then, the State expressed that Simmons should be removed because her family had been involved in the criminal justice system. The trial judge accepted this reason as race-neutral
and not pretextual. Finally, the State reasoned that Smith should be stricken because she thought that racial profiling was prevalent in the community. The trial judge sustained the peremptory challenge.
Turnbull renewed his objections to the challenged jurors before the jury was sworn. At trial, Turnbull raised the defense of necessity, arguing that he had only driven the car as a last resort. Turnbull
never argued that the officers pulled him over because of racial profiling. The jury found Turnbull guilty of unlawful driving
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as a habitual traffic offender, and the trial judge sentenced him to eighteen months in prison. This appeal follows.
On appeal, Turnbull asserts that the State improperly used peremptory challenges to exclude black jurors based on their beliefs that racial profiling was prevalent in the community. The State contends that excluding prospective jurors who believe that racial profiling is prevalent in the community is a raceneutral reason. Based on the specific facts in this case where
racial profiling was not an issue at trial, and based on the manner State. We reverse because the State’s questioning on racial the State asked the questions, we disagree with the
profiling and use of the elicited responses to strike black jurors constituted a subterfuge to the constitutional principles of the Sixth Amendment’s right to a trial by a jury of one’s peers. Our system of justice requires this result.
Although we recognize that a party has the right to use peremptory challenges to remove jurors without cause, the
purpose of the challenge is derogated when a party intentionally discriminates States against Court prospective and the jurors. Florida Both Supreme the Court United have See
Supreme
denounced the use of peremptory strikes based on race.
Batson v. Kentucky, 476 U.S. 79 (1986); State v. Neil, 457 So. 2d 481 (Fla. 1984).
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Courts have recognized that racial discrimination in jury selection is ubiquitous and have attempted to delineate a way to reduce the discrimination by setting out specific guidelines. See Batson, 476 U.S. at 82; Melbourne v. State, 679 So. 2d 759 (Fla. 1996). opinions that Without regurgitating the long line of Florida trace the proscribed discriminatory peremptory
challenges, it is sufficient to say that the reasons must be race-neutral and genuine. A facially race-neutral reason is one that is not based on race at all. 3d DCA 2004). when See Russell v. State, 879 So. 2d 1261, 1263 (Fla. The courts can consider relevant circumstances if the explanation is race-neutral. Such
determining
circumstances can include:
the racial make-up of the venire;
prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. 679 So. 2d at 764. When considering whether the explanation is race-neutral, the trial judge must also look to the genuineness of the See Melbourne,
proffered reason. DCA 2006). An
See Whitby v. State, 933 So. 2d 557 (Fla. 3d appellate court will review the genuineness
assessment for clear error. 1169 (Fla. 4th DCA 2005). circumstances of this case,
See Frazier v. State, 899 So. 2d Here, based upon the surrounding we conclude that the State’s
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reasoning for striking at least one of the prospective jurors was not genuine. Thus, the trial court committed clear error.
Here, the question of racial profiling did not bear any relevance to the case. not asked to illicit The questions on racial profiling were jurors’ general feelings toward law
enforcement.
Instead, the State designed tangential questions
on racial profiling to elicit responses from potential black jurors, which the State later held against them when selecting the final jury panel. The term “racial profiling,” standing alone, can be a term that engenders a visceral response. When used in a trial
milieu, one should inevitably realize that the term is not raceneutral, particularly with black jurors. Here, the State
reasoned that the prospective jurors’ experiences with racial profiling and their beliefs that racial profiling is prevalent would affect their impartiality. alone, is not We a conclude genuinely that this
reasoning,
standing
race-neutral
justification to purge them from the final jury panel. We recognize that litigants may question potential jurors concerning system. that their opinions on law enforcement or the justice
Indeed, there are many perfectly acceptable questions may ask to determine the prospective jurors’
attorneys
feelings about police officers.
In some instances, a racial
profiling inquiry may be relevant in voir dire, such as when a
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juror brings up the subject of racial profiling, or when racial profiling is related to the defense at trial. circumstances were not present in this case. The trial court’s decision to accept elicited responses to questions on racial profiling as race-neutral and genuine was clearly erroneous. initial line of The logical extrapolation of allowing this questioning is that attorneys will use However, these
irrelevant inflammatory questions to incite jurors to respond. Then, in turn, the attorneys may use the elicited responses as neutral reasons to justify the peremptory challenges. We cannot
condone this trial strategy because it defeats the spirit and intent of Melbourne. Accordingly, we find that the State’s justification of its peremptory challenges was not race-neutral and was not genuine. Therefore, since Turnbull did not receive a fair trial by a jury of his peers, we reverse and remand for a new trial. Reversed and remanded.
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