Opinion
Case No. 2D18-4349
01-13-2021
Terry Joseph GIBSON, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
Terry Gibson trespassed on private property and attempted to shoot a deer out of season. But the deer was robotic, placed there by Florida Fish and Wildlife Conservation Commission officers in a sting operation. Gibson was arrested, charged, and ultimately convicted of myriad offenses. We reverse his conviction for unlawful possession of a firearm by a convicted felon and affirm the remainder.
In addition to the firearm possession offense, the State charged Gibson with the illegal taking of a deer, armed trespass, attaching a tag not assigned, driving while license suspended, possession of a controlled substance, and possession of drug paraphernalia. The trial court bifurcated proceedings and held a trial on the firearm charge by itself. During jury selection, the State sought to exercise a peremptory strike on an African-American venireperson, Twan Stubbs. The court allowed the strike over Gibson's objection. For several reasons explained below, this was error.
The Florida Supreme Court has prescribed the process for determining these issues at trial as follows:
A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must
ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (footnotes omitted).
Here, the State concedes that the defense satisfied its burden under step one of the Melbourne analysis when it objected to the State's use of a peremptory strike of Stubbs. The issue in this appeal focuses on step two, specifically whether the State gave a sufficient race-neutral explanation for the strike. At trial, the prosecutor asserted three reasons for striking Stubbs, which we address in turn.
First, the State asserted that "[Stubbs] said she did not like public speaking, in reference to the defendant potentially not speaking himself, and I would say that that's not necessarily the best reason to find someone not guilty." However, as defense counsel pointed out, Stubbs never said she would find the defendant not guilty if he did not testify. Rather, during a discussion of a defendant's right to remain silent and not testify at trial, the exchange between defense counsel and Stubbs went as follows:
DEFENSE COUNSEL: But can we understand why someone may not want to do that, and subject themselves to cross-examination? And I'm seeing a head nod. Ms. Stubbs, what are your thoughts on that?
STUBBS: If I didn't have to get up there, I wouldn't get up there. I don't like to speak publicly, but I would be nervous. So that could be misconstrued as you're guilty.
Stubbs did not say that she would find the defendant not guilty if he did not testify, but rather stated that she could understand why a defendant might not want to testify. The trial court seemed to recognize that this was not a legitimate basis for a strike, as it entirely ignored this ground and noted that "[Stubbs'] lack of involvement is the basis for the challenge." We agree that Stubbs' statement regarding a defendant's failure to testify was not a sufficient basis for a peremptory strike.
The trial court did credit the prosecutor's second justification for the strike, i.e., Stubbs' alleged lack of interest in the jury-selection process seemed to be the primary basis for the strike. On this point, one of the two prosecutors asserted that "[Stubbs] was very quiet when I was speaking to her, did not seem overly interested in the process." The other prosecutor also noted that on her questionnaire Stubbs rated her interest in being there as a three out of ten, and this second prosecutor further stated that "I don't believe she indicated much on her questionnaire, which supports her lack of desire to be here." On the issue of Stubbs' engagement during questioning, when the trial court asked the State if there was any particular reason why the State did not ask Stubbs any questions, the first prosecutor responded:
No. My lack-of-involvement [argument] also stems on the fact that I asked group questions several times, and I felt like quite a few people on both sides of the room did speak up. Quite a few
people also shook their head in agreement or disagreement regularly, and when I would look up in that direction I do not remember Ms. Stubbs interacting in any way.
The trial court found this reasoning genuine and reasonable, and it allowed the State to strike Stubbs.
"Like verbal responses to questioning, a juror's lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a strike." Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003). However, when the opponent of the strike disputes the existence of the nonverbal behavior, the proponent may satisfy its burden of production "only if the behavior is observed by the trial court or otherwise has record support." Id. at 1199. A strike founded on nonverbal behavior cannot rest solely on a party's assertion of a good-faith basis. Rather, it must be supported by the record in a manner that allows for meaningful appellate review. Id. at 1200-01. "Just as the failure to offer any reason whatsoever would be inadequate to sustain a strike, equally inadequate is an unconfirmed subjective impression that cannot be confirmed by the trial court or reviewed by the appellate court because there is no record support." Id. at 1201–02.
In this case, the State's assertion that Stubbs was not interested in the proceeding is not supported by the record. First, the State's claim that Stubbs only rated her interest in being there as a three out of ten cannot be a valid basis for a strike when the State had accepted another venireperson who rated her interest in being there as a one. See Booker v. State, 773 So. 2d 1079, 1089 (Fla. 2000) ; Daniel v. State, 697 So. 2d 959, 961 (Fla. 2d DCA 1997) (holding that the State could not strike a Hispanic venireperson based on a stated opinion that was shared by another venireperson whom the State did not strike).
Second, the State's assertions that Stubbs "did not seem overly interested in the process" and was not interacting with the prosecutor during group questioning were disputed by defense counsel and were not otherwise reflected on the record. To the contrary, defense counsel countered the State's lack-of-interaction argument by pointing out that Stubbs had nodded in response to a group question and thus had actually prompted defense counsel to ask her a direct follow-up question: "[S]he was nodding and that's when I called on her. ‘Yes, fear of public speaking, I can speak to that,’ it was her nodding that actually got my attention." That account is supported by the voir dire transcript:
DEFENSE COUNSEL: All right. But can we understand why someone may not want to do that, and subject themselves to cross-examination? And I'm seeing a head nod. Ms. Stubbs, what are your thoughts on that?
STUBBS: If I didn't have to get up there, I wouldn't get up there. I don't like to speak publicly, but I would be nervous. So that could be misconstrued as you're guilty.
(Emphasis added.)
The facts of Dorsey are quite similar and instructive. There, the State asserted that the venireperson in question seemed uninterested, but that characterization lacked any support in the record and was disputed by defense counsel, who asserted that the venireperson was "attentive" and had "smiled in a lighthearted manner." 868 So. 2d at 1202. The supreme court held that under such circumstances, the strike could not be allowed:
On this record, the trial court's decision to allow the prosecutor's peremptory challenge to an African-American juror based solely on the prosecutor's
"word," which was contradicted by defense counsel and was otherwise without record support, is exactly the type of good faith affirmation that the United States Supreme Court in Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),] and Purkett [v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995),] found would render the requirements of a race-neutral explanation "vain and illusory," and therefore insufficient to satisfy equal protection.
In light of the disagreement of the prosecutor and defense attorney as to the juror's demeanor, and the trial court's inability to confirm the prosecutor's impressions, Wright [v. State, 586 So. 2d 1024 (Fla. 1991),] required that the strike be disallowed.
Id. at 1202–03. As in Dorsey, the State's peremptory strike based on Stubbs' alleged lack of interest should not have been allowed because that lack of interest was disputed by the defense and was without record support.
Last, we reach the same conclusion regarding the State's assertion that it was permissible to strike Stubbs due to the prosecutor's perceived lack of rapport with her. For these purposes, an alleged lack of rapport is no more than an "unconfirmed subjective impression that cannot be confirmed by the trial court or reviewed by the appellate court because there is no record support." Id. at 1201–02. As such, it cannot justify a peremptory challenge of a venireperson who belongs to a protected class. See also Daniel, 697 So. 2d at 961 ("The case law is clear that a ‘feeling’ about a juror is not a valid, neutral reason to exercise a strike, absent support in the record.").
Accordingly, we conclude that the State did not present a sufficient race-neutral basis for its peremptory strike of venireperson Stubbs. We reverse Gibson's conviction for possession of a firearm by a convicted felon and remand for a new trial on that charge. See id.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.