PARIENTE, J.
The issue in this case is whether a trial court can deny a party the right to exercise a peremptory strike against a juror where the record does not establish that the juror was a member of a protected
During voir dire, each of the jurors answered a list of standard questions regarding their backgrounds. A potential juror, Earl Buchholz, Jr., identified himself as the chairman of a prestigious international tennis tournament held annually in Key Biscayne, Florida.
During the parties' exercise of challenges, defense counsel stated that he was peremptorily striking Mr. Buchholz, at which point the following exchange occurred:
(Emphasis added.)
On appeal, Smith raised only one issue: whether the trial court erred in denying defense counsel's peremptory challenge of Buchholz. In reaching its decision, the Third District rejected the defendant's claim that the State's objection to the peremptory challenge was insufficient. The Third District first recognized that when a party objects to the use of a peremptory challenge, the opponent "must make a timely objection, identify the racial or ethnic class or gender of the juror being challenged, and request that the trial court ask the striking party to articulate its reason(s) for the strike." Smith, 1 So.3d at 353. Any doubt as to whether this initial burden was met must be resolved in the objecting party's favor. The Third District then held that if an objection is insufficient, a trial court is not required to make an inquiry as to the reason for the strike. Id. at 354. However, the "trial court may exercise its discretion to do so if it clearly understands the nature of the objection." Id.
Relying on this Court's opinion in Franqui v. State, 699 So.2d 1332, 1335 (Fla. 1997), the Third District interpreted Franqui as drawing a distinction between "those cases in which reversal is being sought when the trial court failed to make a required inquiry and those in which an inquiry was made even though the objection levied did not require it to do so." Smith, 1 So.3d at 354. In support, the Third District reasoned that
Id. (emphasis omitted). The Third District rejected the premise that an inquiry cannot be made by the trial court unless the objecting party meets the first prong of Melbourne,
The conflict issue is whether a juror's surname, without more, is sufficient to trigger an inquiry into whether the peremptory strike was exercised in a discriminatory manner. As we explain below, the Third District's decision directly conflicts with this Court's decision in Alen, which held that a juror's surname alone is insufficient to demonstrate ethnicity. The Third District's opinion also mistakenly relied on and misapplied this Court's decision in Franqui. While Franqui recognized that no magic words were necessary to trigger an inquiry into whether a strike was exercised in a discriminatory manner, Franqui did not eliminate the necessity of establishing that the juror was a member of a cognizable class.
To answer this question, we discuss the law relative to peremptory challenges and then apply it in this case to determine if the trial court and the Third District properly determined that an inquiry into the basis for the peremptory challenge was appropriate. For the reasons addressed in more depth below, we conclude that the inquiry was contrary to this Court's well-established precedent.
As recognized by this Court, "the very purpose of peremptory challenges is `the effectuation of the constitutional guaranty of trial by an impartial jury.' Although peremptory challenges are not themselves constitutionally guaranteed at either the state or federal level, such challenges are nonetheless `one of the most important of the rights secured to the accused.'" Busby v. State, 894 So.2d 88, 98 (Fla.2004) (citations omitted); see also Alen, 616 So.2d at 453. These peremptory challenges, however, cannot be used in a discriminatory manner to exclude potential jurors based on race, ethnicity, or gender. Busby, 894 So.2d at 99.
Article I, section 16, of the Florida Constitution guarantees a defendant the right to an impartial jury. This Court has held that the exercise of a peremptory challenge solely on the basis of race violates the right to trial by an impartial jury under article I, section 16, of the Florida Constitution. See Neil, 457 So.2d at 486. The Court has explained the tension between the right to exercise peremptory challenges and the right to an impartial
State v. Slappy, 522 So.2d 18, 20 (Fla. 1988), receded from on other grounds by Melbourne, 679 So.2d at 765. In other words, the very purpose of placing any limits on the free exercise of peremptory challenges was to prevent the exclusion of individuals from jury service due to discrimination. As further explained in Alen:
Alen, 616 So.2d at 453 (quoting Neil, 457 So.2d at 486).
Over the years, the procedure for determining whether impermissible prejudice occurred has evolved. The Court finally settled on the procedure set forth in Melbourne, 679 So.2d at 764. This Court set forth clear guidelines that if a party objects to the opposing party's use of a peremptory challenge on such grounds, the objecting party must:
Id. (footnotes omitted) (emphasis added).
In Alen, after stressing that peremptory challenges cannot be used in a discriminatory manner to excuse a member of a cognizable class, this Court defined what constitutes a "cognizable class" that is entitled to protection under Neil. As this Court held:
Id. at 455. In applying this to the facts in Alen, the Court held that the trial court erred in permitting the State's use of a peremptory challenge to remove a Hispanic juror (after the State previously removed another Hispanic juror). In reaching this conclusion, the Court noted that the State failed to explain why it sought to excuse this juror and thus "[b]y failing to show the absence of pretext or that its reasons for excusing [the juror] were supported by the record, the state failed to meet its burden of proof." Id. at 456.
In Franqui, 699 So.2d at 1334, the defendant attempted to use a peremptory challenge to excuse prospective juror Aurelio Diaz from the jury. After the State summarily challenged the strike, the court inquired as to the reasons for the challenge. Defense counsel responded that he did not like the juror. The court disallowed the strike, finding that defense counsel did not offer a race-neutral reason. Id. On appeal, this Court expressly rejected the argument that the State's objection was insufficient to permit the trial court to make an inquiry, noting that based on the record, it was obvious that the trial court clearly understood that the objection to the challenge was being made on racial or ethnic grounds, based on the fact that the juror was born and raised in Havana, Cuba, and the juror's name was Aurelio Diaz. Id. at 1335. The Court further noted that "there was never any contention made to the trial court that prospective juror Diaz was not a member of a cognizable minority or that there should not be a Neil inquiry." Id. (footnote omitted). In reaching its holding, this Court noted that it had previously encouraged trial judges to err on the side of conducting a Neil inquiry. Id. (citing Slappy, 522 So.2d at 18). However, the Court's encouragement to hold an inquiry assumed the threshold trigger that the juror was a member of a cognizable class (in that case, Hispanic) had been met.
In this case, the trial court and then the Third District violated our precedent regarding peremptory challenges in two distinct ways. First, the trial court, without anything else in the record, allowed the inquiry because the name Buchholz sounded like a German name.
Second, in upholding the denial of the strike for juror Buchholz, the Third District further erred by misapplying Franqui. According to the Third District, "as long as the trial court understands the nature of the objection, an inquiry may be made." Smith, 1 So.3d at 354 (emphasis added). The Third District has misapplied our decision in Franqui, which does not stand for the proposition that a Melbourne inquiry is proper even if the record does not establish that the juror is a member of a protected group. In Franqui, we simply allowed the parties leeway in making a sufficient objection based on the juror's race or ethnicity if the record established that a juror was a member of a protected minority. However, under the Third District's reasoning in the case at hand, a Melbourne challenge would be permissible even if the record never demonstrates that the juror was a member of a cognizable class. Such a holding is contrary to this Court's long-established precedent regarding the purpose of the law in restricting peremptory challenges. As we have previously stressed, "[t]he initial presumption is that peremptories will be exercised in a nondiscriminatory manner." Neil, 457 So.2d at 486.
Here, the only support in the record for the conclusion that Buchholz was German is the trial court's statement that the juror's surname sounded "like a German name." Even assuming that being German is a protected class, in this case the record is devoid of any indication that Buchholz was actually German. As Smith explains, the record is "barren of the juror's ancestry, national origin or ethnicity." Many potential jurors have names that may suggest a national origin, even if they and their families have been in this country for generations.
This case is distinctly different from the situation in Franqui, where the record established that the venireperson at issue (Aurelio Diaz) was born and raised in Cuba and the trial court clearly understood the basis of the objection to the challenge. We further noted in Franqui that the trial court properly held a Neil inquiry, particularly since "there was never any contention made to the trial court that prospective juror Diaz was not a member of a cognizable minority or that there should not be a Neil inquiry." Id. at
The dissent contends that our decision will result in mini-trials as to whether a juror is indeed a member of a cognizable ethnic class. Contrary to the dissent's position, nothing within our opinion requires an evidentiary hearing to "prove" whether a potential juror is a member of a distinct ethnic group. In fact, as recognized in Alen, 616 So.2d at 455, many times the identifying trait is physically visible, such as with race and gender.
The dissent further alleges that it is unworkable to permit a trial court to inquire from a prospective juror whether that juror is a member of a cognizable ethnic class. All that is required is for the trial court to briefly ask a juror as to his or her ethnicity in these rare circumstances where a party has objected to the use of a peremptory challenge on that basis and there is no support in the record as to whether the prospective juror is in fact a member of that cognizable class. Moreover, as to the dissent's concern with privacy, asking a simple question regarding a juror's ethnicity is certainly less invasive than other questions which are typical in voir dire, including whether the juror or a member of his or her family has been convicted of a crime or has been the victim of a crime.
In this case, the State, as the opponent of the strike, never demonstrated that the venireperson was a member of a distinct racial or ethnic group, as required by Melbourne, 679 So.2d at 764, and the record does not support any basis for such a conclusion. Thus, as the initial step of the Melbourne guidelines was not satisfied, the trial court erred in denying the use of the peremptory challenge.
Finally, permitting the trial court to inquire as to the basis for a strike without first determining whether the venireperson is a member of a distinct racial or ethnic group misses the very point of the Melbourne inquiry. As this Court stressed in Melbourne, 679 So.2d at 764: "Throughout this [three-prong] process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination." A contrary holding runs the risk of completely eviscerating the right of a party to exercise a peremptory challenge. In Busby, this Court explained the extensive history of the right to peremptory challenges. Melbourne strikes a balance that preserves the right to peremptory challenges as long as the challenge is not exercised in a discriminatory manner to exclude a protected class. If any juror may be subject to being struck under Melbourne based on no reason other than his or her surname, we not only undermine the intent of Melbourne and its progeny but significantly restrict the right to exercise peremptory challenges without a corresponding benefit.
We understand that trial judges are under an enormous burden to comply with the dictates of Melbourne and its progeny.
For the reasons addressed above, we hold that the trial court erred in denying
It is so ordered.
QUINCE, LABARGA, and PERRY, JJ., concur.
LEWIS, J., concurs in result only.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.
POLSTON, J., dissenting.
I agree with the majority that a juror's surname by itself does not indicate that the person is a member of a distinct racial group. See State v. Alen, 616 So.2d 452 (Fla.1993). But the majority seriously errs by expanding its ruling beyond the conflict issue and dramatically changing the landscape of jury selection.
The majority essentially requires evidentiary hearings to identify an individual juror's distinct racial or ethnic group. Not only is this practice unnecessary and intrusive, but it also is contrary to this Court's precedent. Specifically, by requiring this level of evidentiary proof of a juror's particular race or ethnicity, the majority is receding from Franqui v. State, 699 So.2d 1332 (Fla.1997). Franqui had encouraged trial courts to move through the Melbourne process once the parties and the trial court became aware of a race-based objection to a peremptory challenge.
The record in this case demonstrates why trial courts should be allowed the discretion to move through the Melbourne process and simply ask for a race-neutral reason without holding a mini-trial regarding the background, gender, and race of the particular venireperson challenged. When the defense attempted to strike Mr. Buchholz, the trial court was in the position to understand that the defense had been attempting to strike the white members of the venire, such as Mr. Buchholz. In fact, the defense very clearly articulated its race-based goals for jury selection when stating on the record, "This is a black defendant and he needs to be judged by a jury of his reasonable peers, not white folks in Dade County." Appendix at 42.
Accordingly, because the trial court properly adhered to this Court's precedent by erring on the side of requesting a race-neutral reason without conducting a needless evidentiary hearing and because the record in this case demonstrates the soundness of this precedent, I respectfully dissent.
Prior to the majority's decision in this case, when the race or ethnicity of a prospective juror was obvious, the trial court could presume an objection to the peremptory strike of a juror was based on the juror's race or ethnicity, and no further evidentiary proof was required. See Franqui, 699 So.2d at 1332. In Franqui, the State challenged the defendant's peremptory strike of prospective juror Aurelio Diaz without identifying the distinct ethnic group to which Mr. Diaz belonged. Id. at 1334. On appeal, the defense argued that
The dissenting opinion stated:
Id. at 1340 (Harding, J., dissenting) (emphasis added) (citation omitted). In rejecting the dissenting opinion in Franqui, the majority reasoned that the trial court understood the objection was on racial grounds and there was never any contention that the juror was not a member of a cognizable minority or that there should not be an inquiry. Id. at 1335. Further, this Court stressed that "we have encouraged trial judges to err on the side of holding a Neil inquiry." Id. (citing State v. Slappy, 522 So.2d 18 (Fla.1988)).
Therefore, this Court in Franqui, 699 So.2d at 1332, encouraged trial courts to move through the Melbourne process once an objection was made and the parties and trial court were aware of the type of objection made. We explained that when an objection to a peremptory challenge is obviously based upon a juror's race, the trial court may ask the challenging party for a race-neutral reason for the strike and then evaluate the reason to determine whether it is credible. Franqui, 699 So.2d at 1335. That is exactly the process the trial court followed here in Smith. However, the majority now abandons the view that encouraged trial courts to err on the side of holding a Neil inquiry in favor of requiring proof, just like the dissent that was rejected in Franqui.
Specifically, in contrast to Franqui, the majority today holds that the objecting party must prove that the potential juror is a member of a distinct racial group. To do so will require an evidentiary hearing. But to hold an evidentiary hearing in every instance where a Melbourne issue arises is not what this Court has previously required—for good reason. It is unworkable. In order to prove membership in a distinct racial group, the objecting party would first have to identify and prove a cognizable class:
Alen, 616 So.2d at 454. Second, the objecting party would need to prove that the juror is part of that cognizable class. This process will cause numerous mini-trials during the jury selection process, which is inefficient and not what our precedent requires.
In this case, an evidentiary hearing to determine whether Mr. Buchholz is a member of a cognizable class serves no purpose. Mr. Buchholz is white,
But even though the majority is willing to accept as a matter of law (without deciding the matter) that German is a cognizable class under Alen, the majority still requires a determination not only of whether German is a cognizable class, but also of whether Mr. Buchholz is a member of that class. See majority op. at 1114. Why? Requiring this type of evidentiary hearing for every juror where this line of questioning occurs is inefficient, will unduly result in mini-trials, and will place prospective jurors in potentially very awkward positions. It is not necessary.
Even if a juror appears to be within a certain racial group, as Mr. Buchholz appeared
Further, how should the evidentiary hearing be conducted? The majority has not made clear what the trial court should have done in this case. The majority states that simply asking jurors will suffice,
In other cases, the inquiry has ended after establishing a prospective juror's nationality. In Windom v. State, 656 So.2d 432 (Fla.1995), for example, the following dialogue ensued during voir dire:
Id. at 436-37. Upon review, this Court never discussed its specific approval or disapproval of the inquiry. This Court held only that the defendant's objection was insufficient because the defendant failed to "make a timely objection in which it was demonstrated on the record that this venire person was a member of a cognizable class." Id. at 437.
In another case, the Fourth District reviewed a case where the State exercised a peremptory challenge against a prospective juror named Mohammed Kahn. Olibrices v. State, 929 So.2d 1176, 1176 (Fla. 4th DCA 2006). Defense counsel objected under Melbourne, and the following ensued:
Id. at 1177 (footnote omitted).
In both Olibrices and Windom, questioning ensued to determine whether the objecting party had established the first step of Melbourne as the majority requires in this case. However, in both cases, the questioning served little purpose in the actual determination of whether the juror was a member of a cognizable class. This
In my view, this Court in Franqui had the right approach in encouraging the trial court to err on the side of simply asking for a race-neutral reason. There is no need to recede from that approach as the majority does here. However well-intended, the additional and enormous burden of requiring proof of a juror's race is unnecessary and unclear. We have set the law adrift even more.
Furthermore, the record in this case demonstrates why trial courts should have the discretion to move to the second and third steps of Melbourne. After all, the trial court is in the best position to assess whether the parties are attempting to unconstitutionally exclude certain members of the panel from the jury. As this Court has explained, "the appropriate standard of appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is abuse of discretion." Nowell v. State, 998 So.2d 597, 602 (Fla.2008). "[T]he trial court is in the best position to assess the genuineness of the reason advanced. . . ." Id. In fact, "the trial court's decision [regarding genuineness] turns primarily on assessment of credibility and will be affirmed on appeal unless clearly erroneous." Melbourne, 679 So.2d at 764-65; see also Jones v. State, 923 So.2d 486, 490 (Fla.2006) ("When reviewing the trial court's decision on a Neil-Slappy claim, appellate courts are to keep in mind that `the trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.'" (quoting Melbourne, 679 So.2d at 764-65)).
Findings by a trial court and the appellate review of those credibility findings according to a "clearly erroneous" standard of review were explained by the United States Supreme Court in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson, 470 U.S. at 573, 105 S.Ct. 1504 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). There should be greater deference to trial court's findings when they are based on assessments of credibility because "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Id. at 575, 105 S.Ct. 1504. "If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74, 105 S.Ct. 1504 (emphasis added).
Accordingly, under Anderson, rather than narrowly focusing on an individual juror, the whole voir dire record should be considered to determine whether the trial judge's ruling was clearly erroneous.
Had the majority witnessed voir dire as the trial court did, or even considered the entire voir dire record here, it would have been clear that both parties were posturing and that the trial judge wisely moved through the Melbourne process when the defense attempted to exercise a peremptory
Here, while properly proceeding through a Melbourne inquiry, the trial court asked for a race-neutral explanation. The defense cited juror Buchholz's prior jury service—the same reason the prosecution had just provided for the immediately preceding juror. Although both sides gave apparent race-neutral reasons, the trial court rejected the reasons as not genuine. Because each side accused the other of trying to obtain a jury of a particular racial mix, the trial judge made credibility determinations as required by Melbourne and made rulings against both sides. The trial court was in the best position to make those findings, and the rulings are not clearly erroneous. The majority should not substitute its own credibility findings for those of the trial judge. Rather, the trial court's ruling that the race-neutral reasons given by the defense were not genuine was amply supported by the record and should be affirmed by this Court.
Although the defense's statement that he did not want "white folks" serving on the jury came after the ruling as to Mr. Buchholz, it demonstrates why trial courts should have the discretion to move through the Melbourne process. The trial judge was in the best position to evaluate voir dire, and the ruling was validated by later comments made by the defense. Making its own evaluation, the majority's ruling now improperly reverses the trial court's ruling and holds that the trial court should have allowed the defense to strike Mr. Buchholz, one of the "white folks."
The majority errs by expanding its ruling beyond the conflict issue and by dramatically changing the process of jury selection by receding from Franqui and placing an unnecessary and illogical burden on trial courts and prospective jurors that will undoubtedly result in prolonged and inefficient voir dire proceedings. Furthermore, the voir dire record in this case clearly demonstrates why trial courts should be allowed to exercise discretion
I would affirm. Therefore, I respectfully dissent.
THE COURT: All right. Did you change your mind about anybody, prosecution?
MS. MATO: I would move, Judge, to strike Mr.—Juror No. 3, Colas.
MR. CASASNOVAS: Judge, we are going to raise an objection as to a Ne[il] Slappy. I believe Mr. Colas is a member of a minority group known as Latinos.
THE COURT: Since when is that a minority group?
MR. CASASNOVAS: Not in Dade County, I know.
THE COURT: I think under the present law I have to require that you explain it.
MS. MATO: Yes, Judge. Simply Mr. Colas has served on a jury before. And his fiancée's son has been arrested. He has also been a victim of a crime several times.
MR. CASASNOVAS: That would inure to the benefit of the defense. We are not objecting on those grounds.
MS. MATO: You chose to exercise a peremptory?
THE COURT: I don't think that is a genuine objection. I'm going to overrule you.
MR. CASASNOVAS: I'm sorry, Judge. What did you just say?
THE COURT: I overruled her.
MR. CASASNOVAS: All right.
THE COURT: So he is foreseated.
MS. MATO: He is what, I'm sorry?
THE COURT: Foreseated.
MS. MATO: You are not excusing him?
THE COURT: No.
MS. MATO: All right. Your Honor, if I may have a moment.
Judge, I know that when Mr. Colas was questioned about his fiancée's son's treatment by law enforcement or by the system in general, he indicated that he thought that he had received a harsher punishment than the other cases that were in court that day. No, he did not feel that, you know, he was not really certain in terms of whether he—whether he was treated fairly or not. So, that is another reason that I have, Judge, for requesting—exercising a peremptory on him.
THE COURT: There is no need to argue. I'm denying it—your objection, whatever you want to call it.
All right. So, we have six. Anything else, anybody?
MR. CASASNOVAS: We are going to ask for a peremptory on Mr. Buchholz, No. 12.
MS. MATO: Judge, I would—
THE COURT: Wait a minute. What about Buchholz? You are peremptorily challenging him?
MR. CASASNOVAS: Yes, sir.
THE COURT: Are you requiring an explanation?
MS. MATO: Yes, Judge.
MR. CASASNOVAS: Is he a member of a distinct minority group which would render him—
THE COURT: Buchholz?
MR. CASASNOVAS: Yes.
MR. CASASNOVAS: This is a recognized minority group within the law, I believe. Mr. Buchholz—
THE COURT: I suppose there is—anybody qualifies under our present great, deeply thought out appellate decisions.
MR. CASASNOVAS: He is a victim of a house robbery which makes him a victim of a crime. And he can harbor bias or any difficulty in this case—
THE COURT: The Court will rule that is not a genuine objection and it is overruled.
MR. CASASNOVAS: We have several others.
THE COURT: Go ahead.
MR. CASASNOVAS: He served on a jury.
THE COURT: He served on a jury in Ohio.
MS. WRIGHT: St. Louis.
MR. CASASNOVAS: In a criminal case.
MS. MATO: Those were the same reasons I requested that juror No. 3 be excused.
THE COURT: We are done with Juror No. 3.
MS. MATO: The reasons they said were not the same reasons they are saying for Juror No. 12.
THE COURT: I don't think that the objections to Buchholz are genuine. I'm going to overrule it.
MR. CASASNOVAS: That is over our respectful objection.
THE COURT: That's correct.
Defense, anybody else?
MR. CASASNOVAS: We move to strike Ms. Lorie, No. 13.
THE COURT: All right.
MR. CASASNOVAS: On peremptory grounds.
THE COURT: All right. Strike No. 4. All right.
Next one up would be then 17, Adderley, prosecution?
MS. MATO: I move for a cause challenge.
THE COURT: Speak.
MS. MATO: Yes. For one thing, she was very clear in that she could not find the defendant guilty based solely on testimonial evidence, despite the fact that that is not what the law requires.
So she, therefore, cannot follow the law. She also made several comments about police officers. For those reasons, Judge, I would move for a cause challenge on her.
THE COURT: The cause challenge is denied.
MS. MATO: All right. I would move for a peremptory strike then on her.
THE COURT: That is granted.
MR. CASASNOVAS: If we raise a Ne[il] Slappy, it would be academic at this point.
THE COURT: You do what you want. You are the lawyer.
MR. CASASNOVAS: We raise a Ne[il] Slappy. She is a black female, Judge.
THE COURT: And I just heard an explanation, I believe why.
MR. CASASNOVAS: That is why I am saying whether it's academic or not. I don't know whether Your Honor would consider it.
THE COURT: No, but she is off the jury anyway. You kicked her off.
MS. MATO: I would ask that—I would ask to exercise a peremptory on her.
THE COURT: We need another juror then, No. 6.
THE CLERK: Yes.
THE COURT: Next one up is, defense, Pena?
MS. WRIGHT: Your Honor, if we could just have some clarification.
MR. CASASNOVAS: We asked for a peremptory on Lorie.
THE COURT: That was No. 4.
MR. CASASNOVAS: That was No. 13.
MS. MATO: That was your fourth peremptory.
MR. CASASNOVAS: That was granted.
THE COURT: Yes.
MR. CASASNOVAS: I'm sorry, Judge. I'm falling asleep.
THE COURT: How many do we have, Jan?
THE CLERK: Five jurors, Judge.
THE COURT: So, No. 18, Pena, defense?
MR. CASASNOVAS: We accept.
MS. MATO: We accept, Judge.
THE COURT: All right. That is six again. Prosecution, do you change your mind about anybody?
MS. MATO: No, Judge.
THE COURT: Defense, do you change your mind about anybody?
MR. CASASNOVAS: Your Honor, we respectfully change our mind on Pena, No. 18, after consulting.
THE COURT: All right. Peremptory challenge on her, whatever.
MS. MATO: Your Honor, at this time—
THE COURT: Wait. Wait. Is that a peremptory challenge?
MR. CASASNOVAS: Yes.
THE COURT: That is your fifth.
MS. MATO: Your Honor, I would raise a Ne[il] Slappy challenge. She is the second or actually the third Hispanic female that the defense has sought to kick off the panel. So I would ask for a race neutral, gender neutral reason.
THE COURT: All right. Sir.
MR. CASASNOVAS: She was the victim of a theft and she is also a supervisor in the Building Department.
THE COURT: I will tell you what. I'm going to—this is Christmas. I'm going to grant your motion. She is off.
MS. MATO: That would be over the State's objection, Judge.
THE COURT: No. 19, prosecution?
MS. MATO: Accept.
MR. CASASNOVAS: We accept, Judge.
THE CLERK: Six.
THE COURT: That is six again. Defense, have you changed your mind about anybody?
MR. CASASNOVAS: No.
Well, we objected to Buchholz already. No, Judge. Not at this point.
THE COURT: Prosecution?
MS. MATO: Judge, I would exercise a peremptory on Juror No. 16.
MR. CASASNOVAS: Your Honor, we object respectfully.
THE COURT: You are requiring an explanation?
MR. CASASNOVAS: Requiring an explanation, she is a black female and this is the—how many so far—so far.
MS. MATO: Yes, Judge. My reason for striking her is that her husband who she has been married to for a while has been arrested before and has been—has served time in prison for gun charges.
THE COURT: That's correct. All right.
MR. CASASNOVAS: My recollection, with all due respect, she was asked by Ms. Mato and she said he was treated fairly by the State.
MS. WRIGHT: Furthermore, she had never really discussed the charges that he had been convicted of with her husband and that by the time she had gotten together with him, that case had already been closed out.
THE COURT: That is true, but it is a ground under case law, as I recall from other research, so it is granted.
So, now we've got No. 20, defense. That is Zenck. She is gone.
MR. CASASNOVAS: She is cause.
MS. MATO: She is gone.
THE COURT: No. 21, prosecution?
MS. MATO: I accept.
MR. CASASNOVAS: We accept.
THE COURT: That is six again. Any further objections from anybody?
MS. MATO: Judge, I would move to strike Juror No. 9, Ms. Wallace.
MR. CASASNOVAS: Your Honor, we have a deep seated objection. This is the—I lost count of all the black females that she has stricken.
THE COURT: I don't think she is black.
MR. CASASNOVAS: She is a black female, Judge. She is a black female. This is a black defendant and he needs to be judged by a jury of his reasonable peers, not white folks in Dade County. This is our objection, Your Honor.
We are now seeing a pattern with regard to the State seeking to strike all black jurors in this case.
MS. MATO: You are asking for a race neutral, gender neutral reason?
THE COURT: Yes.
MS. MATO: Judge, she indicated earlier she was familiar with the area where this crime occurred. She also indicated that she had been—let's see, that her brother had been arrested for domestic violence. She had been a witness to his domestic violence case. Her father had been arrested also for drug possession and her brother had also been arrested for stealing driver license forms. She was also the victim of a crime. She had been sexually harassed earlier.
For the record, Judge, I have sought to strike Hispanic males and Hispanic jurors from this panel so those are my grounds for striking Juror No. 9, Judge.
THE COURT: Under the case law, as I understand it, your motion is granted.
MR. CASASNOVAS: Over our respectful objection.
THE COURT: That is fine. Next one up, then, is No. 22, I think. Yes, defense, Alpizar?
MR. CASASNOVAS: We accept.
MS. MATO: I accept, Judge.
THE COURT: All right. That is six again.
Any further objections from anybody?
MR. CASASNOVAS: We move to strike Ms. Alpizar, No. 22.
MS. MATO: And, Your Honor, she is another Hispanic female which has been— which defense has sought to strike from
MR. CASASNOVAS: How do you know she is Hispanic?
MS. MATO: Her name is Mara Isel Alpizar.
MR. CASASNOVAS: It could be Polish.
MS. MATO: Her last name is Hispanic.
THE COURT: Do you want to bring her in and ask her if she is Hispanic?
MR. CASASNOVAS: All right, yes.
THE COURT: Bring her in.
MS. BAIL: What is her name, Judge?
THE COURT: Alpizar.
MR. CASASNOVAS: You ran her for priors?
MS. MATO: Yes, I ran everybody.
THE BAILIFF: Ms. Alpizar.
(Thereupon, Ms. Alpizar entered the courtroom and the following proceedings were had:)
THE COURT: Ma'am, just a little questioning here. Is your national background Latin?
MS. ALICEA [sic]: Yes.
THE COURT: Are you from the United States or were you born someone else?
MS. ALPIZAR: Cuba.
THE COURT: You were born in Cuba?
MS. ALPIZAR: Yes.
THE COURT: Thank you very much.
(Thereupon, Ms. Alpizar exited the courtroom and the following proceedings were had:)
THE COURT: All right. Your objection to Ms. Alpizar is overruled. I believe that is six.
Am I correct?
THE CLERK: Yes, Judge.
THE COURT: Numerically correct. Whether I am legally correct will be tested by the District Court of Appeal. Right, Jan, six?
THE CLERK: Yes, Judge.
THE COURT: All right. Jan, just so we are absolutely correct—
THE CLERK: Yes. Lawrence is Juror No. 2. Cue is Juror No. 3.
MR. CASASNOVAS: Buchholz.
Over our objection.
THE CLERK: Lineberger is five and we are on six now.
THE COURT: All right. Now, let's get an alternate. Next one up is.
MS. MATO: No. 23.
THE CLERK: Judge, you don't have six jurors as of yet.
MS. MATO: Yes, we do.
THE CLERK: I thought you read Alpizar. Was she stricken?
THE COURT: No.
THE CLERK: That is six.
THE COURT: The alternate, without objection, would be Castaneda.
MS. WRIGHT: Actually, Your Honor, I believe that would be cause on Castaneda.
MS. MATO: I would agree, Judge.
THE COURT: No. 24, Smith?
MR. CASASNOVAS: I have no objection.
MS. MATO: I have no objection to her, Judge.
THE COURT: Shirley Smith will be the alternate. Are we sufficient with one?
THE CLERK: Yes, Judge.
MS. MATO: Do you think we need a second one just in case?
THE COURT: Next one is 25, Ulloa?
MS. MATO: I accept her, Judge.
MR. CASASNOVAS: We have an objection to her language. I'm not sure. She was very clear when she spoke.
THE COURT: You object to Ulloa, whatever the name, No. 25?
MS. MATO: They think she has language difficulty or something.
THE COURT: All right. No. 26 would be next. Diaz, any problem with him or her?
MS. MATO: I have no objection, Judge. I accept her. Supper is waiting. I've got to get to it.
MR. CASASNOVAS: Objection, Judge. We will keep her.
THE COURT: She is the second alternate. All right.
Jan, just so we can absolutely be sure. Please recite the names of the people on the jury.
THE CLERK: No. 3, Colas, Orlando Colas. No. 6, Duke Lawrence. No. 12, Earl Buchholz. No. 19, Manuel Caban. No. 21, John Lineberger. No. 22, Mara Alpizar, and No. 24, Shirley Smith. Digna Diaz.
THE COURT: Would you bring them in, please?
MR. CASASNOVAS: Judge with respect to—
THE COURT: Hold on a minute.
MR. CASASNOVAS: We just are, for the record, accepting subject to all prior motions and objections.
THE COURT: Very well.
MR. CASASNOVAS: Specifically with regard to Mr. Buchholz, we disagree with Your Honor, respectfully.
THE COURT: Fine. Bring them in, please.
(Thereupon, the prospective jurors entered the courtroom at 5:50 p.m.)
THE BAILIFF: Please be seated.
THE COURT: All right. Note for the record the presence of the defendant and the jury. Folks, we are going to now announce the names of the people who have been selected. If you hear your name called, it means that you have been selected on the jury.
If your name is not called, please get up, leave your badge on the desk and you may go home.
All right, Jan.
THE CLERK: Orlando Colas, Duke Lawrence, Earl Buchholz, Manuel Caban.
THE COURT: Manuel what?
THE CLERK: Caban, thank you. John Lineberger, Mara Alpizar.
THE COURT: Mara Alpizar, Shirley Smith and Digna Diaz.
THE COURT: Digna Diaz. All right. Those folks please remain seated. The rest of you, please get up, put your badge on the desk and you may go.
(Thereupon, the prospective jurors exited the courtroom and the following proceedings were had:)
THE COURT: Folks, would you move that way? Sir, white shirt, sir.
That's fine. Come on up other folks, please.
We have all eight here.
Please swear the jurors, please.
(Thereupon, the jurors and the alternates were duly sworn.)
[instructions given to the jury by the trial court]
(Thereupon, the jury exited the courtroom at 6:00 p.m. and the following proceedings were had:)
THE COURT: All right.
MR. CASASNOVAS: Your Honor, one last just supplementing of the record, one sentence.
THE COURT: Go ahead.
MR. CASASNOVAS: For the record, all jurors, with the exception of Ms. Smith, are white or white Latinos, white or white Latinos, just for the record because the record will speak for itself as to the challenges that were made by the State on the black jurors.
THE COURT: Anything else?
MR. CASASNOVAS: For now, no.
THE COURT: See you tomorrow at ten o'clock.
MR. CASASNOVAS: Have a nice day.
THE COURT: You will be here earlier, though.
(Thereupon, the proceedings were adjourned until 10:00 a.m. the following day).
CANADY, C.J., concurs.
MS. MATO: And, Your Honor, she is another Hispanic female which has been — which defense has sought to strike from the panel. I'm asking for a race neutral, gender neutral reason.
MR. CASASNOVAS: How do you know she is Hispanic?
MS. MATO: Her name is Mara Isel Alpizar.
MR. CASASNOVAS: It could be Polish.
MS. MATO: Her last name is Hispanic.
THE COURT: Do you want to bring her in and ask her if she is Hispanic?
MR. CASASNOVAS: All right, yes.
THE COURT: Bring her in.
MS. BAIL: What is her name, Judge?
THE COURT: Alpizar.
MR. CASASNOVAS: You ran her for priors?
MS. MATO: Yes, I ran everybody.
THE BAILIFF: Ms. Alpizar.
(Thereupon, Ms. Alpizar entered the courtroom and the following proceedings were had:)
THE COURT: Ma'am, just a little questioning here. Is your national background Latin?
MS. ALICEA [sic]: Yes.
THE COURT: Are you from the United States or were you born someone else?
MS. ALPIZAR: Cuba.
THE COURT: You were born in Cuba?
MS. ALPIZAR: Yes.
THE COURT: Thank you very much. Appendix at 43-44.
