Smith v. StateSmith v. State
Bennett H. Brummer, Public Defender, Robert Kalter, Asst. Public Defender, and Ronald S. Lowy, Sp. Asst. Public Defender, for appellants.
Robert A. Butterworth, Atty. Gen. and Monique T. Befeler, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.
REVISED OPINION
SCHWARTZ, Chief Judge.
Smith and Washington were tried together and convicted of the armed robbery of a Farm Store. We reverse Smith‘s conviction for a new trial because of a Neil-Slappy violation; affirm Washington‘s conviction because he did not raise the pertinent objections below, but order his resentencing after remand.
During the voir dire, the state exercised three peremptory challenges to exclude three blacks from the prospective jury. Counsel for Smith — pointedly not joined by Washington‘s attorney — raised the now familiar Neil objection that the challenge had been exercised on the basis of the jurors’ race. The trial court apparently, and no doubt correctly, agreed that a prima facie showing to that effect had been made and, pursuant to State v. Neil, 457 So. 2d 481 (Fla. 1984), ordered the prosecutor to explain the grounds upon which the black jurors had been stricken. Accordingly, the prosecutor then propounded supposedly race-neutral reasons for the challenges.1 The trial judge, however, on the ground that other black jurors remained on the panel, then specifically declined to rule, as Smith requested, upon the sufficiency of the explanation. He said:
At this point, there are three blacks on the jury, okay? They are not entitled to a jury of all black people. There are three black people on the jury and I am going to leave it at that. I am not going to rule with regard to whether these other strikes are correct or not at this time.
This refusal to rule was clearly reversible error.
It is entirely established Florida law that, once a Neil inquiry has been, as it was here, appropriately initiated, it is incumbent upon the trial judge to evaluate the credibility of the explanation for the peremptory challenges and “to determine whether the proffered reasons, if they are neutral and reasonable, are indeed supported by the record.” Tillman v. State, 522 So. 2d 14, 16-17 (Fla. 1988). Moreover, because even the exercise of a single racially-motivated prosecution strike is constitutionally forbidden, State v. Slappy, 522 So. 2d 18 (Fla. 1988), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 909 (1988), it does not matter for these purposes whether other black jurors actually serve on the defendant‘s jury. Slappy, 522 So. 2d at 21; see also Stubbs v. State, 540 So. 2d 255 (Fla. 2d DCA 1989); Moriyon v. State, 543 So. 2d 379 (Fla. 3d DCA 1989), review dismissed, 549 So. 2d 1014 (Fla. 1989). Hence there can be no question of the reversible incorrectness of a lower court‘s declination to rule, one way or the other, as to the Slappworthyness of the proffered explanation. Thompson v. State, 548 So. 2d 198, 202 (Fla. 1989), which is procedurally almost identical to this situation,2 squarely so holds. For this reason, Smith‘s conviction is reversed for a new trial.3
Washington
We cannot afford similar relief to Washington. This is because, exactly contrary to the circumstances in Charles v. State, 565 So. 2d 871 (Fla. 4th DCA 1990), the Neil-Slappy objection was raised solely by defendant Smith and was not also
The lower court, after (concededly appropriately) finding that Washington was an habitual violent felony offender, see
As to case no. 89-1954 reversed, as to case no. 89-1818, affirmed in part, vacated in part and remanded.
Notes
In reversing the defendant‘s conviction because the trial court did not analyze or rule upon the sufficiency of the state‘s reasons for excluding black jurors, the court noted:
... [t]he present record reflects a grave possibility that the trial court below relied upon the state‘s erroneous statement that Neil only comes into play if there is a “systematic” exclusion of blacks. This is the only reasonable conclusion based on the record. Indeed, the trial court first began to conduct a Neil inquiry but then reversed itself after hearing the state‘s erroneous statement of the law. Moreover, every relevant statement by the trial court incorrectly characterized Neil as applying only to “systematic” uses of the peremptory.
It has not escaped us that this set of circumstances may well give rise to a claim of ineffective assistance of Washington‘s trial counsel (who is not the attorney now representing him on appeal). We therefore determine the present issue specifically without regard to a subsequent proceeding under
Because, however, serious issues are presented, among other things, as to whether counsel‘s failure to object may serve to obviate the preservation requirement through the medium of relief under 3.850, see Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), pet. for review dismissed, 475 So. 2d 693 (Fla. 1985), and whether the lack of objection may have stemmed — as it is deemed to have done — from a deliberate strategic determination of counsel to go forward with a jury with which he was pleased, State v. Stirrup, 469 So. 2d 845 (Fla. 3d DCA 1985), review denied, 480 So. 2d 1296 (Fla. 1985); Anderson, 467 So. 2d at 785, we deem it entirely inappropriate — and Washington does not contend otherwise — to invoke any exception to the rule that ineffective assistance claims may not be raised on direct appeal and should be relegated to post-conviction proceedings under 3.850. Kelley v. State, 486 So. 2d 578, 585 (Fla. 1986), cert. denied, 479 U.S. 871, 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986); State v. Barber, 301 So. 2d 7 (Fla. 1974); Hammer v. State, 543 So. 2d 437 (Fla. 2d DCA 1989).