Lucious ANDREWS, Jr., Appellant, v. STATE of Florida, Appellee, 443 So. 2d 78

PER CURIAM. This is an appeal from a final judgment of the Circuit Court of Leon County imposing the death penalty. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The offense was sexual'battery upon a person under the age of eleven years by a person eighteen or more years of age. § 794.-011(2), Fla.Stat. (1979). For the following reason, we reverse appellant’s conviction and vacate the sentence which has been imposed upon him. The victim testified in court as follows: Appellant was asked by the victim, Quinez-ett Bryant, aged eight, to take her to the store one evening.

Appellant drove the victim to the store and purchased popcorn and bubble gum for her. He then drove her home and parked his car in front of the victim’s house. Allegedly, appellant pushed the victim down in the seat of the car, pushed her panties aside, and attempted to insert his penis into her anus. She suffered pain in the anal area due to three small tears in the anal tissue. Appellant then discontinued the attempt at penetration. The victim’s sister, Tonya, came out to the car looking for her sister and told her to go inside the house.

The victim went to the bathroom and “felt something come out.” She didn’t know what it was but it was white; she flushed it down the toilet. The victim then washed her panties and went to sleep. The next morning, the victim’s mother questioned the girl about her outing from the house and learned of the sexual battery. The victim was taken to the hospital where an examination found three shallow or superficial lacerations around the anus. Medical swabs were also taken of the anal area and these were later determined to contain some amounts of blood but no semen.

Chemical testing of the victim’s panties, gown and robe revealed no semen present. Jury trial commenced on April 7, 1981. The state’s witnesses were the victim, her sister, the emergency room physician, the investigating officer, a forensic serologist, and the victim’s mother. Appellant’s witnesses were a sheriff’s deputy, a state’s attorney investigator, a lab technician, the victim’s father, the victim’s mother, three character witnesses, and the appellant. On April 8, 1981, the jury returned a verdict of guilty of the offense charged. On April 30, 1981, the sentencing phase was conducted.

The state presented no additional evidence and said it was not seeking the death penalty. Appellant called several character witnesses as well as the victim’s mother in mitigation. The jury recommended life imprisonment as a sentence. The jury foreman made a statement to the court that the jury unanimously felt that even the life sentence “is more severe than the particular circumstances involved in this case.” Immediately thereafter, the trial judge overrode the jury’s recommendation and imposed a sentence of death.

I Andrews, who is black, initially contends that the trial court erred in denying his motion to dismiss the indictment against him, which motion alleged that black citizens of Leon County had been systematically excluded from serving as grand jury foremen. He does not challenge the racial composition of the grand juries empaneled in Leon County. First, applying the principles announced by the Supreme Court in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); and reaffirmed as they apply to the selection of a Tennessee grand jury foreman in Rose v.

Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), we find that the trial court correctly denied Andrews’ motion to dismiss. In Rose the Supreme Court held that in order to show that an equal protection violation has occurred in the context of grand jury foremen selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.

The Court then said that a defendant was required to prove a prima facie case of discrimination in the selection of a grand jury foreman as follows: The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied_ Next, the degree of un-derrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time....

This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class...: Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. [Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280.] 443 U.S. at 565, 99 S.Ct. at 3005. Only after the defendant in this manner establishes a prima facie case of discrimination does the burden shift to the state to rebut that prima facie case.

Assuming, for the purposes of analysis only, that Andrews established that he is a member of a group recognizable as a distinct class capable of being singled out for different treatment under the laws, that the selection procedure is susceptible of abuse, and that there has been a degree of underrepresentation of blacks as grand jury foremen over a significant period of time, this would establish a prima facie case of discrimination under the Rose test, and the burden would shift to the state to rebut the presumption of discrimination.

The state then would have the burden of showing that racially neutral selection procedures produced the disparity established by Andrews. In its order denying the motion to dismiss, the trial court found that: Every circuit judge involved with the selection of grand jury foremen in Leon County during the critical period, who testified, gave the specific criteria he used in selecting a grand jury foreman. Each denied that race was one of these criteria. Leadership and ability to preside over the deliberations seem to be the most common and persuasive criteria used.

In an analogous case, the United States Court of Appeals, Eleventh Circuit, in United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982), addressed the issue of alleged discrimination in the Southern District of Florida in the selection of a federal grand jury foreman where the defendant had made a prima facie case of discrimination. It reiterated the principles announced in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), and Turner v.

Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970), that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case and that denial of a discriminatory intent will not suffice. It held, however, that the government had rebutted the defendant’s case of discrimination. In reaching this conclusion, the Eleventh. Circuit stated: The government’s rebuttal case below consisted entirely of testimony from eight district judges involved in the foreman selection process for the years in question.

Each judge testified that he acted independently of the other judges in choosing a grand jury foreman, although each employed similar guidelines in making a selection. These guidelines generally consisted of four separate factors: (1) occupation and work history; (2) leadership and management experiences; (3) length of time in the community; and (4) attentiveness during the jury empan-elment. These factors directly relate to the ability to perform the administrative functions and duties of a grand jury foreman.

This is not then a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position- We can think of no better criteria for determining which grand jury member is best able to serve as foreman. 672 F.2d at 1387-88 (footnotes omitted) (citation omitted). The criteria used by the federal judges in the Southern District of Florida were for the most part the same ones used by the circuit judges in Leon County in selecting grand jury foremen.

As was the case in Perez-Hernandez, the record in the present case does not show that these judges abused their discretion by selecting foremen without regard to their stated criteria or by excluding equally qualified blacks. The Eleventh Circuit also reached the same result in a case from the Northern District of Florida. United States v. Holman, 680 F.2d 1340 (11th Cir.1982). In that ease the defendants sought reversal because of alleged discrimination in selection of the grand jury foreperson.

During the relevant period from 1969 to 1979, only one black female was appointed to that position in the Northern District of Florida. Circuit Judge Hatchett of the Eleventh Circuit, who was sitting by designation as the trial judge, denied the defendants’ motion to dismiss the indictment. Finding that a prima facie case of discrimination had been established, Judge Hatchett nevertheless concluded that the government had met its burden of rebutting the defendants’ case. United States v. Holman, 510 F.Supp. 1175 (N.D.Fla.1981).

On appeal, the Eleventh Circuit, accepting Judge Hatchett’s conclusion that a prima facie case had been made, affirmed his ruling that it was rebutted by the government's proof of a lack of discriminatory intent. In reaching this decision, the court said: “Both judges of the Northern District of Florida who testified at the hearing and in deposition asserted that their selections were rendered with no view to the jurors’ race or sex; Judge Stafford stated that he was unaware that the jurors’ race was even indicated on the questionnaire.” 680 F.2d at 1357.

If the federal district judges of the Southern District of Florida in Perez-Hernandez and of the Northern District of Florida in Holman acted properly in selecting grand jury foremen, then certainly the circuit judges of Leon County did also. Just as in the federal cases, this is not a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position. The record in this case clearly establishes that the circuit judges in Leon County were “color blind” in their selection of grand jury foremen and that the criteria they used in their selection were racially neutral.

Next,’even though for the purposes of analysis we have applied the principles in Rose to show that the foreman selection process did not violate the equal protection clause of the fourteenth amendment, we question whether Rose is applicable to Florida’s grand jury foreman selection process. Judge Morgan, in his specially concurring opinion in Perez-Hernandez, concludes that the Supreme Court’s holding in Rose does not apply to the selection of grand jury foremen in the federal system. For the same reasons expressed by Judge Morgan, it also does not apply to Florida’s grand jury foreman selection process.

Judge Morgan contends that before a defendant may challenge his indictment because of discrimination in the judicial system, the discrimination should be related to a significant position in the administration of justice. He points out that the federal grand jury foreman is not such a significant position and that there are material differences between the role of the federal grand jury foreman and that of the Tennessee grand jury foreman involved in Rose.

Selection of the federal foreman, he asserts, is not even remotely necessary to the administration of justice since he or she performs only menial, insignificant tasks and has no more power than any member of the grand jury panel. In the federal system, the grand jury is randomly selected and then a foreman and deputy foreman are selected by the court from that group. The federal foreman administers oaths, signs the indictments, and he or another member of the grand jury whom he designates keeps the records. Fed.R.Crim.P. 6(c).

The grand jury foreman in Tennessee, on the other hand, plays an independently significant role in the administration of justice. The Supreme Court in Rose detailed the selection process and the functions of a grand jury foreman in Tennessee. 443 U.S. at 548 n. 2, 99 S.Ct. at 2996 n. 2. He or she is chosen by a judge from the entire population for a two-year term of office and is then added to a randomly selected grand jury panel as a thirteenth member. This procedure allows discrimination in the selection of the foreman to infiltrate discrimination into the entire grand jury panel.

The Tennessee grand jury foreman plays an essential role in the administration of justice in that he or she is charged with the duty of assisting the district attorney in investigating crime and may order the issuance of subpoenas for witnesses before the grand jury. Without his or her endorsement, an indictment is fatally defective. The selection process and duties of the grand jury foreman in Florida courts are analogous to the federal court system. Both are unlike the grand jury foreman in the Tennessee state court system.

In Florida, the court selects one of the grand jurors as foreman and another to act as foreman during the absence of the foreman from a randomly selected grand jury. § 905.08, Fla.Stat. (1981). The Florida foreman plays no more significant a

part in the proper administration of justice than does the federal grand jury foreman. He administers oaths to witnesses, appoints one of the members of the grand jurors as clerk to keep minutes of the proceedings, appoints interpreters to translate language of witnesses, and either he or an acting foreman signs the indictment. §§ 905.22, 905.13, and 905.15, Fla.Stat. (1981); Fla.R. Crim.P. 3.140(f).

Therefore, even if there had been discrimination in the selection of the grand jury foreman in Leon County, which there was not, it would not have justified quashing the indictment and certainly does not require setting aside the conviction. Finally, the applicability of the test announced in Rose to the Florida foreman selection process is questionable on another basis.

In light of the fact that the Florida grand jury foreman is chosen from the randomly selected grand jury rather than selected from the entire population and then added as an additional member to the panel, the second criteria announced in Rose for establishing a prima facie case of discrimination, i.e., that the degree of un-derrepresentation may be proved by comparing the proportion of the group in the total population to the proportion called to serve as foreman over a significant period of time, is inappropriate in the present case.

Rather, we should compare the proportion of the group in grand jury panels to the proportion called to serve as foremen. Thus the trial court was correct when it concluded: 5.There is no evidence of nor challenge to the racial composition of the grand juries empaneled in Leon County during the critical period. 6. If the selection of the grand juries was racially neutral as we must assume it was, it could result in a racial composition disproportionate to the population without being constitutionally objectionable. 7.

Statistical calculations based on a comparison of the number of black grand jury foremen selected to the number of blacks in the general population are not competent to establish a systematic and deliberate exclusion of blacks from that position without a showing as to the number of blacks from which the selection was made; i.e., the grand jury panel. 8. The defendants did not in this Court’s opinion establish a prima facie case of discrimination under the “rule of exclusion.” Based on the foregoing analyses, we hold that the trial court correctly denied Andrews’ motion to dismiss the indictment.

II Appellant’s second point, however, raises an issue which indeed rises to the level of reversible error and causes us to set aside the conviction. Appellant claims that the trial court committed reversible error when it denied appellant’s motion for a mistrial after the court had commented, without request and without cautionary instruction, upon appellant’s right to decline to testify. With this we agree. In its opening instructions to the jury, the trial court said, inter alia: The Defense may or may not call witnesses.

The Defense is not required to call any witnesses nor is the defendant required to take the stand. Defense counsel promptly moved for a mistrial alleging improper comment by the court upon the defendant’s right not to testify and not to take the stand. The state was not unsympathetic to the mistrial motion but the trial court denied it. Trial was held and appellant testified in his own behalf. The Florida Standard Jury Instructions in Criminal Cases that was applicable at the time of appellant’s trial provided for the following preliminary instruction: The defendant may or he may not testify during the trial.

At no time is a defendant in a criminal case required to prove his innocence or furnish any evidence whatsoever. This right is guaranteed to all defendants by the Constitution and no other right is more thoroughly ingrained in our system of justice. The decision to testify or not testify is his alone to make, and a jury cannot draw any inference of guilt whatsoever from the failure of a defendant to take the witness stand in his own defense. Fla.Std.Jury Inst. (Crim.) 1.01. A footnote referring to this instruction says: The above is to be given only with consent of defendant.

Fla.Std.Jury Inst. (Crim.) 1.01, n. 1. The giving of similar instructions over the objection of the defendant is not error. Carlton v. State, 111 Fla. 777, 149 So. 767 (1933); Fogler v. State, 96 Fla. 68, 117 So. 694 (1928); Harvey v. State, 187 So.2d 59 (Fla. 4th DCA), cert. denied, 194 So.2d 619 (Fla.1966), cert. denied, 386 U.S. 923, 87 S.Ct. 894, 17 L.Ed.2d 795 (1967). See also Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978).

However, the trial court in the instant case omitted any cautionary instruction to the jury not to draw any inference of guilt from the defendant’s failure to take the stand in his own defense. That omission is most significant. As the United States Supreme Court noted in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981): The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant’s objection.

The salutary purpose of the instruction, “to remove from the jury’s deliberations any influence of unspoken adverse inferences,” was deemed so important that it there outweighed the defendant's own preferred tactics. 450 U.S. at 301, 101 S.Ct. at 1119-1120 (footnote omitted). Without the cautionary instruction, the jurors were free to infer or speculate that a defendant who does not testify must surely be guilty, otherwise he would take the stand in his own behalf. A bald judicial comment on the refusal to testify, by itself, “is a remnant of the ‘inquisitorial system of criminal justice’ ....

It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965) (footnote and citations omitted). But the cautionary no-inferenee instruction’s “very purpose is to remove from the jury’s deliberations any influence of unspoken adverse inferences.” Lakeside v. Oregon, 435 U.S. at 339, 98 S.Ct. at 1095. The fact that appellant did later testify does not remedy the error committed by the trial court.

The fatal instruction effectively deprived appellant of the opportunity to make his decision whether or not to testify “in an atmosphere free of coercion or intimidation.” Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977).

Whereas in Provence there was little doubt that from the outset the defense intended to put the defendant upon the stand (in order to present a self-defense argument to balance the picture of the deceased's body with its eight stab wounds), here the record does not suggest that it was appellant’s intention from the outset of his trial to testify. The state’s case consisted basically of the testimony of a young child. It could easily have been defense counsel’s trial strategy not to have the defendant testify and argue the total unreliability of the young child’s testimony.

Defense counsel may very well have concluded that the absence of a cautionary instruction effectively eliminated any free choice he may otherwise have had on the matter of defendant’s testifying or electing to remain silent. Thus, an impermissible element of coercion was present in the instant case, and this was sufficient, we believe, to deprive appellant of his right to make his decision about testifying in a free and principled manner.

We thus conclude that the trial court’s comment, over appellant’s objection, with no cautionary no-inference instruction, should have been the basis for the court’s granting the motion for mistrial. Since the motion was not granted, we hereby reverse appellant’s conviction and vacate his sentence. Upon retrial, appellant may not be subject to the death penalty for this crime. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983); Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). It is so ordered.

OVERTON and McDONALD, JJ., concur with

Part I and II. ALDERMAN, C.J., and BOYD, J., concur with

Part I and dissent with

Part II with opinions. SHAW, J., concurs with

Part II and dissents with

Part I with an opinion, with which ADKINS and EHRLICH, JJ., concur. . See Carter v. Kentucky, 450 U.S. at 303 n. 21, 101 S.Ct. at 1120 n. 21: The importance of a no-inference instruction is underscored by a recent national public opinion survey conducted for the National Center For State Courts, revealing that 37% of those interviewed believed that it is the responsibility of the accused to prove his innocence. 64 ABAJ 653 (1978).