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Ivey v. State

Florida Court of Appeals, First District

September 13, 2017

SHAWNEST ANGELO IVEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Jackson County. Shonna Young Gay, Judge.

          Andy Thomas, Public Defender, Jennifer P. LaVia, Special Public Defender, for Appellant.

          Pamela Jo Bondi, Attorney General, Michael McDermott, Assistant Attorney General, for Appellee.

          MAKAR, J.

         Shawnest 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 reverse.[1]

         I. Background

         Juror 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.

         According 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 further consideration.

         Immediately 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.

         The 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 ...


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