543 So. 2d 379 | Fla. Dist. Ct. App. | 1989
Luis Enrique Moriyon appeals a judgment of conviction and sentence for trafficking in cocaine. Moriyon asserts reversible error based upon the trial court’s refusal to grant his motion for severance and failure to conduct an adequate Neil inquiry.
We agree that the trial court committed reversible error by failing to conduct an adequate inquiry into the state’s use of peremptory challenges to strike black prospective jurors pursuant to State v. Neil, 457 So.2d 481 (Fla.1984), clarified sub nom State v. Castillo, 486 So.2d 565 (Fla.1986), and State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, — U.S.-, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).
Reversed and remanded for a new trial. Conflict certified.
. We find no abuse of discretion in the trial court’s denial of Moriyon’s motion to sever his trial from that of codefendant Lourdes Garcia Lavin. Severance is not required where, as here, the antagonistic defenses amount to nothing more than codefendants blaming one another for the crime. O'Callaghan v. State, 429 So.2d 691 (Fla.1983); McCray v. State, 416 So.2d 804 (Fla.1982).
. Voir dire was conducted outside the presence of the trial court. Upon our request, the parties furnished supplemental briefs on the issue of a trial judge's absence during voir dire in light of the supreme court’s recent decision in Brown v. State, 538 So.2d 833 (Fla.1989). In Brown, the court recognized that a judge’s presence throughout a trial is a fundamental right which can be waived only by a fully informed defendant, not defense counsel, and only in limited circumstances. The parties also supplied this court with a copy of a waiver signed by Mori-yon in which he relinquished his right to have the trial judge present during voir dire. The identical waiver has been deemed to establish a prima facie valid consent. Kemp v. State, 541 So.2d 1332 (Fla. 3d DCA 1989). Having reviewed the supplemental briefs and the waiver, we conclude that Moriyon knowingly and intelligently waived his right to the judge’s presence during voir dire. Brown; Kemp; Peri v. State, 426 So.2d 1021 (Fla. 3d DCA), rev. denied, 436 So.2d 100 (Fla.1983).
. We certify conflict with Kibler v. State, 501 So.2d 76 (Fla. 5th DCA 1987), and Torres v. State, 541 So.2d 1224 (Fla. 2d DCA 1989).
. See generally Jorgenson, Back to the Laboratory with Peremptory Challenges: A Florida Response, 12 Fla.St.U.L.Rev. 559, 567 n. 58 (1984).
.We caution that the absence of the trial judge during jury selection adds to the difficulty of conducting a proper Neil inquiry as the trial judge will not have personally observed voir dire and a transcript will not ordinarily be available. Where that is the case, the Neil hearing must be conducted with an additional measure of care.