Ivy v. State , 2016 Fla. App. LEXIS 4208 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
AARON RHASHAUD IVY, )
DOC# W01913, )
)
Appellant, )
)
v. ) Case No. 2D14-289
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 18, 2016.
Appeal from the Circuit Court for Hendry
County; James D. Sloan, Judge.
Howard L. Dimmig, II, Public Defender,
and Deana K. Marshall, Special Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Bilal A. Faruqui, Assistant
Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Aaron Rhashaud Ivy appeals his judgments and sentences for robbery
with a firearm, two counts of false imprisonment with a firearm, grand theft, and felon in
possession of a firearm. We affirm, writing only to discuss his claim that the trial court
did not conduct an adequate step 3 genuineness inquiry under Melbourne v. State, 679
So. 2d 759 (Fla. 1996), when he opposed the State's peremptory challenge of an
African-American venireperson. Relying on our decision in Spencer v. State, No. 2D14-
316 (Fla. 2d DCA Mar. 18, 2016), we conclude that Mr. Ivy did not create a record
preserving and establishing that he is entitled to a new trial due to the trial court's grant
of the State's peremptory challenge. Accordingly, we affirm.
I. THE FACTS
Mr. Ivy, along with two codefendants, robbed a jewelry store during
business hours on August 6, 2010. The robbery was recorded on surveillance cameras.
Mr. Ivy sustained a significant cut on his leg when he jumped over a glass counter to
assault one of two store employees who were present, causing the glass to break. He
cleaned his wound in the store's bathroom. He and his codefendant restrained the two
employees in the bathroom by taping their hands together. The police arrived while the
robbery was in progress because the police station was just around the corner from the
store. The police arrested the three perpetrators as they fled the scene. Both
employees identified Mr. Ivy as the robber who had carried the handgun. Thus, the
evidence against Mr. Ivy in this case was very strong.
The State charged all three defendants in a single information, charging
Mr. Ivy with two counts of kidnapping with a firearm, possession of a firearm by a
convicted felon, first-degree grand theft, and armed robbery. The three defendants
were tried together. Mr. Ivy was convicted on all five counts, but the jury returned lesser
convictions of false imprisonment instead of kidnapping, with special findings that Mr.
Ivy possessed a firearm. He was sentenced as a habitual felony offender to concurrent
sentences, the longest of which is forty-five years in prison for the armed robbery.
II. JURY SELECTION
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The transcript of jury selection in this case reflects a process different from
that in Spencer. The trial occurred in a rural county where many people know one
another. Several members of the venire were friends or relatives. The judge
recognized at the inception of the process that some members of the venire had
pending criminal cases. Some disclosed that they had relatives represented by the
public defender or that they knew the victim or witnesses in this case. The court
reporter identified each member of the venire by name in the transcript. In an era when
neighbors in large metropolitan cities do not even know one another’s names, the
transcript is a refreshing reminder of the value of community. But it is also an
environment in which jury selection is perhaps more casual.
During jury selection, one of the venirepersons revealed that she had a
son-in-law who had once been a law enforcement officer but was no longer. Neither the
State nor the defense inquired further on this subject. After a large number of
venirepersons were stricken for cause, the State and the defense attorneys exercised
peremptory challenges and initially reached an agreement on the first six jurors. As
they were about to select the alternates, the State decided to exercise a back strike.
The record reflects the following:
THE COURT: I thought you accepted the panel?
[ASSISTANT STATE ATTORNEY]: State of Florida,
any party can use back strikes or peremptories until such
time as a jury panel is sworn. That's Florida rules of criminal
procedure[].
THE COURT: What do you want?
[ASSISTANT STATE ATTORNEY]: State of Florida
would strike [venireperson] 126 . . . .
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[COUNSEL FOR MR. IVY]: We would like a race-
neutral1 reason for the peremptory. [Venireperson 126] is an
African American juror.
[ASSISTANT STATE ATTORNEY]: Her son was
previously a member of law enforcement. For that reason
the State would move to strike her for peremptory.
[COUNSEL FOR CODEFENDANT ONE]: There's no
indication that she said she would be less likely to believe
the testimony of a law enforcement officer.
[ASSISTANT STATE ATTORNEY]: That's not one of
the requirements of the race-neutral reason.
THE COURT: It's just that, to be race neutral.
[COUNSEL FOR MR. IVY]: It has to be genuinely
race neutral. And the fact that a juror has a relative who was
a police officer seems to be good reason for the defense to
get rid of her, but not the State.
THE COURT: Any other reason you know of you can
provide?
[ASSISTANT STATE ATTORNEY]: If it's good for
defense counsel to use as a race-neutral reason, as
[counsel for Mr. Ivy] just argued, it would be a reason that
would be valid for the State of Florida as well.
[COUNSEL FOR CODEFENDANT ONE]: Just for the
record, on behalf of [codefendant 1] we object and ask for a
race-neutral reason for the record.
[COUNSEL FOR CODEFENDANT TWO]: We join in.
THE COURT: Understood. However, I think the State
has argued adequate[ly] its race-neutral reason. If it's good
for one side then it's good—
[COUNSEL FOR MR. IVY]: It would make sense I use
it obviously.
1The court reporter used the word "res" rather than "race" in this portion of
the transcript. We have substituted the correct word throughout.
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THE COURT: Who said it has to make sense?
[COUNSEL FOR MR. IVY]: Genuineness.
THE COURT: It means if we look at it on its face, if
that would be a race-neutral reason for exercising, just
because it might make more sense for one side than the
other does not remove it from being race neutral. I note your
objection for the record, I'm going to allow it—
[COUNSEL FOR MR. IVY]: Thank you, judge.
THE COURT: (Continuing) —as race neutral. . . .
Prior to this exercise of a peremptory challenge, three other potential
jurors who had connections to law enforcement had been dismissed. One had been
dismissed for cause and the other two were peremptorily stricken by a defendant. At
the end of the selection process when accepting the jury, Mr. Ivy's attorney made a
proper Joiner objection concerning these two peremptory challenges. See Joiner v.
State, 618 So. 2d 174 (Fla. 1993).
III. APPLYING THE SPENCER ANALYSIS IN THIS CASE
We will not repeat the legal discussion contained in sections III through V
of Spencer. In section IV of that opinion, we described each step of the three-step
procedure established in Melbourne2 and suggested the components necessary to
accomplish those steps. See Spencer, slip. op. at 8-10. Applying that analysis to the
State's peremptory challenge of venireperson 126 in this case, the trial court adequately
resolved the questions required for step 1 and properly began step 2.
When Mr. Ivy's counsel asked the State for a race-neutral reason, the
State explained that venireperson 126 had a son-in-law who had previously been a law
2Melbourne v. State, 679 So. 2d 759, 763-65 (Fla. 1996).
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enforcement officer. Counsel for one of Mr. Ivy's codefendants responded, but only to
suggest that venireperson 126 did not indicate that she was less likely to believe a law
enforcement officer. That response seems directed at the issue of genuineness and not
facial race neutrality. The State immediately pointed this out, responding "[t]hat's not
one of the requirements of the race-neutral reason." The court echoed this by stating
that "[i]t's just that, to be race neutral."
Mr. Ivy's attorney then argued that the reason must be "genuinely race
neutral," and suggested that the circumstance of a venireperson having a family
member that had been a law enforcement officer seemed to be a valid reason for a
peremptory challenge by a defendant but not by the State. Mr. Ivy's counsel thus
appears to have been moving on to step 3 by suggesting that even if a proffered reason
is facially race neutral, it must be "genuinely" race neutral. But he did not make this
explicit, and the trial court does not appear to have understood that Mr. Ivy's counsel
had moved on to step 3. Instead, the trial court remained at step 2 and asked why a
race-neutral reason had "to make sense." Instead of clarifying the confusion, explaining
to the trial court that there is a third step in Melbourne, or objecting to the State's facially
race-neutral reason as a pretext, Mr. Ivy's counsel simply responded: "Genuineness."
Apparently the trial court still did not understand that it needed to make a separate
determination on the issue of pretext, and it allowed the peremptory challenge "as race
neutral." Thus, the trial court never made a finding on whether the facially race-neutral
reason was pretextual.
We conclude that the word "genuineness" with nothing more is not an
adequate objection informing the trial court that it must make two separate
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determinations, facial neutrality and genuineness, and not merely one. Perhaps more
critically, no defense attorney explained or even asked to explain the "circumstances"
discussed in Hayes v. State, 94 So. 3d 452, 461-62 (Fla. 2012), and Murray v. State, 3
So. 3d 1108, 1120 (Fla. 2009), that might support a determination that the assistant
state attorney was using the stated neutral reason when her true reason involved
impermissible discrimination. Most of the components required for a proper step 2 and
step 3 Melbourne hearing as described in Spencer simply did not take place in this
case, but the trial court did not prevent those steps from occurring. After the trial court
responded to defense counsel's word "genuineness" with a ruling that was clearly on
race neutrality, defense counsel merely responded, "Thank you, judge."
Because the trial court never actually reached the issue of genuineness,
the assistant state attorney was never asked to respond to the defense attorneys'
argument that only defendants can use peremptory challenges on venirepersons whose
relatives are former law enforcement officers or to any claim that she was being
disingenuous in asking for this challenge. We do not think that Mr. Ivy, as the opponent
of the peremptory challenge, met his burden of persuasion to overcome the
presumption that the State's proffered reason was genuine or that its challenge was
proper. See Hayes, 94 So. 3d at 461 (citing Melbourne, 679 So. 2d at 764). This is not
a case in which it is difficult to understand what the response would have been. The
circumstances surrounding the son-in-law's exit from a law enforcement career were
unknown. Those circumstances could possibly have caused venireperson 126 to feel
strongly against law enforcement. Any experienced trial attorney would understand that
asking about those circumstances in open court in front of the entire venire involved
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risks and could be embarrassing to the challenged venireperson. A decision to forego
the questions and simply use a peremptory challenge on this venireperson for this
reason is both race neutral and arguably a sensible trial strategy.
We are less certain whether the holding in Hayes may require a reversal
under the facts in this case as compared to the facts in Spencer. But the three defense
attorneys did not provide the trial court with adequate notice that it was not following the
decision-making process necessary for a Melbourne hearing. For the reasons
explained in Spencer, we conclude that Mr. Ivy did not adequately preserve a
Melbourne issue in this case and cannot demonstrate on this record that the trial court
abused its discretion or clearly erred in allowing the strike. We find no reversible error
in the trial court's decision to permit the State to exercise a peremptory challenge of
venireperson 126.
In Spencer, we expressed concern that our analysis may conflict with the
First District's decision in Simmons v. State, 940 So. 2d 580 (Fla. 1st DCA 2006). In
Simmons, the State exercised peremptory challenges on several African-American
members of the venire. Id. at 581. When defense counsel asked for a race-neutral
reason for one of them, the State responded that the venireperson's husband was
currently a law enforcement officer. Id. The subsequent objection made by defense
counsel and the ruling by the trial court in that case were almost identical to what
occurred in this case. Defense counsel in Simmons argued that the State's reason
might be good for defense counsel but not for the State, and the court ruled: "I will allow
the challenge. That is a race-neutral reason. Whether or not we view it favorable for
the State or favorable for the Defense, it is a race-neutral reason." Id. The district court
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reversed for a new trial because based on the court's explanation in its ruling, "it
appear[ed] that the trial court bypassed the genuineness inquiry required in the
Melbourne analysis." Id. 582-83.
As we read the facts in Simmons, we are unconvinced that defense
counsel in that case adequately objected to the trial court's failure to make the step 3
genuineness determination from Melbourne. However, it appears that the First District
treated the circumstance of a venireperson with a relative who was an active law
enforcement officer differently from how this court is treating a venireperson related to a
former law enforcement officer. Whether this factual difference is sufficient to prevent
this case from conflicting with Simmons is debatable. To avoid the necessity of
resolving that debate, we certify the same dispositive question of great public
importance in this case that we certified in Spencer:
DURING A MELBOURNE HEARING, WHEN A TRIAL
COURT FINDS THAT THE PROPONENT'S REASON FOR
A PEREMPTORY CHALLENGE IS FACIALLY NEUTRAL, IS
IT THE BURDEN OF THE OPPONENT (1) TO CLAIM THE
REASON IS A PRETEXT, (2) TO PLACE INTO THE
RECORD THE CIRCUMSTANCES SUPPORTING ITS
POSITION, AND (3) TO OBJECT IF THE TRIAL COURT'S
RULING DOES NOT CONTAIN ADEQUATE FINDINGS ON
THE ISSUE OF GENUINENESS?
Affirmed.
VILLANTI, C.J., and KELLY, J., Concur.
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