Opinion
No. 4D99-3657.
Opinion filed October 25, 2000.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 99-7204 CF10A.
Richard L. Jorandby, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was convicted of three counts of robbery with a firearm and seeks a new trial on the ground that he was improperly denied a peremptory challenge of a juror. We affirm.
The challenges to jurors began with appellant exercising peremptory challenges on two females and one male with no objection from the state. The state then attempted to exercise a peremptory challenge on a black female and appellant asked for a race neutral reason. The state responded:
MR. HOLDEN: Judge, I don't have any race neutral reason but I will withdraw my strike, goback to defense strike that they used. I didn't bring that up at that time. I believe everybody now is a protected party.
The state then acknowledged that the only reason it was now objecting to peremptory strikes already exercised by appellant was because the appellant was objecting to the state's striking the black female. The trial court expressed concern with the tactics being used by the state, noted that this was not the first time the court had observed this type of thing, and suggested that it should be addressed by an appellate court.
In Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996), the Florida Supreme Court held:
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.
In the present case, although the trial court did allow the state to question appellant's peremptory strikes which had already been exercised, it would have been well within the court's discretion to hold that the state's objections were not timely underMelbourne. We recognize, of course, that there are other circumstances when timeliness should not be invoked to bar revisitation, because the grounds for challenging the strikes may not have been apparent until a pattern emerged.
The prosecutor's attempt to exercise a peremptory challenge on a black female, when he had no race neutral reason, was not only unprofessional, but would have, if allowed, violated her constitutional right to serve on a jury. We remind the prosecutor that it is hisethical duty to see that justice is done rather than to secure convictions. Smith v. State, 95 So.2d 525 (Fla. 1957); Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998).
Batson v. Kentucky, 476 U.S. 79 (1986), was not only about the rights of the parties. It was also about a person's constitutional right to serve on a jury without being discriminated against. State v. Slappy, 522 So.2d 18, 20 (Fla. 1988).
The issue raised by appellant involves the trial court's denial of his attempted peremptory strike of a woman. He argues that the trial court abused its discretion, because his explanation that he was challenging her because she was a nurse was a gender neutral reason. We do not agree. When the trial court asked why he did not want a nurse on the jury, appellant's counsel responded that one of the other people charged in this case was shot and that person might be called to testify. He suggested that the woman's experience as a nurse might affect her evaluation of that testimony. This challenge smacks of the same unprofessionalism as did the prosecutor's attempt to strike the black female.
We have considered appellant's argument that he should have had an instruction on grand theft as a lesser included offense but conclude that, under the allegations of the information in this case, he was not entitled to such an instruction. We therefore affirm.
SHAHOOD and GROSS, JJ., concur.