FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Jackson County. Shonna
Young Gay, Judge.
Thomas, Public Defender, Jennifer P. LaVia, Special Public
Defender, for Appellant.
Jo Bondi, Attorney General, Michael McDermott, Assistant
Attorney General, for Appellee.
Angelo Ivey, who was convicted of possession of XLR11
(commonly referred to as K2, Spice, or Synthetic Marijuana)
and methamphetamine, argues that the trial court erred in
allowing a peremptory challenge to strike an African-American
juror where the State's race-neutral reason-that the
juror gave the prosecutor a dirty look-was neither observed
by the trial court nor supported by the record. We agree and
number 46 is an African-American woman. During jury
selection, neither the State nor defense counsel questioned
her other than to ask whether she was employed (she said
yes). After the close of voir dire, but before finalizing the
jury, the prosecutor informed the trial court that the State
wanted to use a peremptory strike on the potential juror. In
response, defense counsel requested a race-neutral reason for
the strike because juror number 46 was the only
African-American on the jury panel.
to the prosecutor, the basis for the peremptory strike was
that she had made a joke about the potential juror during a
break in jury selection between a prior case and Ivey's
case. She said the potential juror overheard her and then
gave "a look" that the prosecutor believed
reflected bias against her. Neither the trial judge, defense
counsel, nor anyone else observed the described encounter;
nor was there any record evidence to establish "the
look" other than the prosecutor's statement. The
trial court accepted the State's proffered reason for the
strike as race- neutral and removed juror number 46 from
thereafter, the trial court asked the State and defense
counsel if they were agreeable to the jury members who had
been selected. Defense counsel said he went over the entire
panel with Ivey, who said he "agrees and accepts this
jury." Just prior to swearing the jury, however, the
trial court and defense counsel had the following exchange:
Court: The only additional thing is looking at my seating
chart for jury selection yesterday, I had seated for juror
number 46, and just for record purposes, wanted to make sure
she was not a cause, she was a peremptory challenge. And
there was a challenge race neutral reason given, and she was
excused based on the state using a peremptory challenge. With
that, is there anything else we need to address this morning
before we bring the jury in?
Defense: Your Honor, the only thing other than-everything you
said is fine. What I would like to do, I've made a few
objection in preliminary proceedings and objected to evidence
and objected to different things. I would like to just make
that as a continuing objection, so they don't come back
and say we failed to object in the trial.
Court: I will just state for record purposed [sic], any
ruling that has already been made by me, I recognized
[defense counsel's] continue [sic] objections, that has
been the ruling that has been made by the Court.
jury was sworn and Ivey was later found guilty on the
possession charges. On appeal, he argues that the trial court
erred in allowing the State to ...