FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 22, 2017

PROSPECTIVE AFRICAN-AMERICAN JUROR GIVING PROSECUTOR A “DIRTY LOOK” OUTSIDE OF THE VOIR DIRE NOT A VALID RACE-NEUTRAL REASON--DEFENDANT PRESERVED ISSUE FOR APPEAL WHEN DEFENSE COUNSEL RAISED OBJECTION TO PEREMPTORY CHALLENGE AND CONFIRMED OBJECTION JUST PRIOR TO THE JURY BEING SWORN BY CONTINUING OBJECTION.

Ivey v. State, 42 Fla. L. Weekly D2004 (Fla. 1st DCA September 13, 2017):

During jury selection, neither the state nor defense counsel questioned the prospective African-American woman juror at issue about anything other than to ask whether she was employed (she was). 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 challenge on her, drawing a request from defense counsel for a race-neutral explanation.

The prosecutor stated that the basis for the peremptory was that the prosecutor herself had made a joke about the potential juror during a break in jury selection between a prior case and this case, and said the potential juror overheard her and then gave her “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 and removed the potential juror from further consideration.

Just prior to the swearing in of the jury, defense counsel advised the court of defendant’s renewed objection to the race-neutral reason offered by the prosecutor for the strike. Counsel then accepted the panel.

In order for the proponent of a peremptory strike to properly articulate a reason for a strike based on non-verbal behavior, the behavior must be observed by the trial court or otherwise have record support. In this case, “the look” was neither observed by the trial judge nor did it have record support. It only had the prosecutor’s say-so, which the Florida Supreme Court in Dorsey v. State had already said was inadequate.

The issue in Dorsey, was whether a party’s observation of a juror’s non-verbal behavior could constitute a genuine, race-neutral reason for peremptory challenge, when the purported behavior is challenged by the opposing party, but not observed by the trial court or supported by the record. The supreme court said in Dorsey that there must be more than the prosecutor’s own perception of non-verbal conduct to meet the burden imposed under Melbourne v. State for a genuine race-neutral challenge.

In Dorsey, however, the prosecutor’s interpretation of events had occurred during the voir dire where the defense counsel was present and had an observable basis for disagreement with the prosecutor’s assertion, conferring a duty to say something. In this case, the alleged non-verbal conduct had taken place outside of the courtroom, so the defense attorney could not have a basis for disputing it.

Thus, in this case where the prosecution agreed that the law was against it, but stated that defense counsel failed to preserve the objection by failing to challenge “the look,” the court rejected that argument because “the look” had taken place outside of the presence of the defense counsel. The court also ruled that defendant preserved the objection by confirming it just prior to the jury being sworn in.