final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
CYNAMON, ABBY, ASSOCIATE JUDGE.
appeals from his convictions entered after a jury found him
guilty of attempted burglary and driving without a valid
drivers' license.Appellant raises
several issues on appeal, only one of which we address here,
as it is dispositive. Appellant asserts that the trial court
reversibly erred when it allowed the state to use peremptory
strikes on two African American jurors, Ms. T and Ms. J, in
violation of the procedure articulated by the Florida Supreme
Court in Melbourne v. State, 679 So.2d 759 (Fla.
1996). For the reasons that follow, we agree with
appellant's argument as to Ms. T, and reverse and remand
this cause for a new trial.
record indicates that one of the questions posed to
prospective jurors during voir dire was whether any of their
family members had been arrested. Prospective jurors Ms. T,
Mr. W, Mr. S, and Mr. H each stated that they had a family
member who had been arrested.
the state sought to use a peremptory strike on Ms. T, an
African American, the defense requested a race-neutral reason
for the strike. The reason given by the state was the arrest
of one of Ms. T's family members. The defense challenged
this strike, contending that the state's reason was not
genuine, since Mr. W and Mr. H, two prospective jurors whose
family members had also been arrested, remained on the jury.
In response, the state asserted that its reason for striking
Ms. T had nothing to do with her race, but instead was based
on the arrest of her family member. The trial court found
that the state's reason for striking Ms. T was
race-neutral and allowed the strike. Appellant later renewed
his objections to the state's exercise of peremptory
strikes, and accepted the panel subject to his prior
final jury panel included Mr. W, Mr. S, and Mr. H, who were
all non-African American. Thus, three non-African American
prospective jurors who stated they had family members who had
been arrested remained on the jury, while the trial court
allowed the state to use a peremptory strike on an African
American prospective juror who had an arrested family member.
standard of review of this issue is abuse of discretion.
Wimberly v. State, 118 So.3d 816, 820 (Fla. 4th DCA
party challenges a peremptory strike, asserting that it is
racially discriminatory, Melbourne articulates a
three-step procedure that trial courts must follow. First,
the party challenging the strike must make a timely
objection, must demonstrate that the challenged juror is a
member of a distinct racial group, and must ask the trial
court to ask for a reason for the strike. 679 So.2d at 764.
Second, the party seeking to strike the juror must come
forward with a race-neutral reason. Id. Third, the
court must determine if the reason offered is genuine or is
instead a pretext "given all the circumstances
surrounding the strike." Id.
case at bar, the record indicates that defense counsel timely
objected, demonstrated that Ms. T was African American, and
asked the trial court to ask the state for a race-neutral
reason for the strike. The state then came forward with a
race-neutral reason for the strike, namely, the arrest of Ms.
T's family member. Thus, the first two steps of
Melbourne were satisfied.
appeal turns on the third step of Melbourne. As part
of its determination of genuineness, a trial court should
consider, among other things, "the racial makeup 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." Id. at 764 n.8.
courts have repeatedly found that it can be "racially
discriminatory to exercise a peremptory challenge against a
prospective juror in the minority where the proffered reason
applies equally to a prospective juror in the majority."
Smith v. State, 799 So.2d 421, 424 (Fla. 5th DCA
2001). For example, in Foster v. State, 732 So.2d
22, 24 (Fla. 4th DCA 1999), we held that the trial court
clearly erred in finding that the state's reason for
peremptorily striking two black jurors was genuine, where the
asserted basis for the strikes-prior arrests of immediate
family members-"was equally applicable to non-black
jurors who were not challenged." In so holding, we
explained that "[b]ecause there were no other