NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JULY TERM, A.D. 2006
ANDRE OWEN TURNBULL,
THE STATE OF FLORIDA,
CASE NO. 3D05-272
TRIBUNAL NO. 04-14596
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.
The pertinent facts are as follows:
Two police officers
stopped Turnbull, an African-American man, for driving with a
Turnbull admitted that he was driving with a
suspended license, but claimed it was out of necessity to rescue
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 were black.
The State exercised peremptory strikes against four of the
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”),
The defense timely objected to the strikes, stating
that the prospective jurors were black, and requested a “raceneutral” reason for the peremptory strikes.
Jeanbaptiste were that he had experiences with racial profiling
and he was arrested for driving with a suspended license.
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
The trial judge upheld this reasoning even though
Latson explicitly stated that her experiences would not affect
Then, the State expressed that Simmons should be removed
because her family had been involved in the criminal justice
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
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.
never argued that the officers pulled him over because of racial
The jury found Turnbull guilty of unlawful driving
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
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
Our system of justice requires this result.
Although we recognize that a party has the right to use
purpose of the challenge is derogated when a party intentionally
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).
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
Without regurgitating the long line of Florida
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.
See Russell v. State, 879 So. 2d 1261, 1263 (Fla.
3d DCA 2004).
The courts can consider relevant circumstances
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,
See Whitby v. State, 933 So. 2d 557 (Fla. 3d
assessment for clear error.
See Frazier v. State, 899 So. 2d
1169 (Fla. 4th DCA 2005).
Here, based upon the surrounding
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.
The questions on racial profiling were
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
milieu, one should inevitably realize that the term is not raceneutral,
reasoned that the prospective jurors’ experiences with racial
profiling and their beliefs that racial profiling is prevalent
justification to purge them from the final jury panel.
We recognize that litigants may question potential jurors
Indeed, there are many perfectly acceptable questions
feelings about police officers.
In some instances, a racial
profiling inquiry may be relevant in voir dire, such as when a
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
The logical extrapolation of allowing this
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.
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.