Answer Brief of Appellee - Florida State University College of Law

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given are pretextual; they’re not, they’re real. And if there’s to be anything left of peremptory challenges, and I believe there is, that once the Court determines that the reasons proffered are both neutral and reasonable, which I’ve determined, and that the answers given in Voir Dire support those reasons, which they do, the Court Reporter has just read it back and confirmed it, and once the Court finds that the reasons are not pretextual as an excuse to excuse the juror for racial reasons, I think it’s appropriate that the challenge be allowed and that the objection to the challenge be overruled. Had that same challenge been made of any other member of the venire who testified identically to Ms. harp, without regard to black or white or Hispanic or any other kind of group, male, female, whatever, old, young, it would have passed muster with absolutely no problem; I don’t see why it should be any different here. (R510-13). The trial court properly applied settled Florida law and found that the State’s reasons for the peremptory challenge were not pretextual, but rather were genuine. That is the decision that the trial court must make in evaluating an objection to a peremptory challenge, and the trial court committed no error. Floyd v. State, 850 So. 2d 383, 394-95 (Fla. 2002); Farina (Anthony) v. State, 801 So. 2d 44, 50 (Fla. 2001); Smith v. State, 699 So. 2d 629, 636-37 (Fla. 1997) (rev’d on other grounds). There is no basis for relief. II. THE “LIMITATION ON VOIR DIRE” CLAIM On pages 39-45 of his Initial Brief, Hoskins argues that he should have been allowed to use an autopsy photograph of the victim (which was already in evidence from the guilt stage) 26
during voir dire of the jury panel. Apparently, counsel wanted to ask the prospective jurors if they would sentence Hoskins to death based on the photograph alone. (R164). The State did not object, but voiced a concern that it would be inappropriate to confront the venire with the photograph without an explanation of it from a witness. R163). The State correctly noted that the issue was within the discretion of the trial court (R163) -- settled Florida law holds that whether a trial judge should have allowed interrogation of jurors on specific subjects is reviewed under the abuse of discretion standard. Davis v. State, 698 So. 2d 1182, 1190 (Fla. 1997). The scope and content of voir dire will not be disturbed on appeal absent an abuse of discretion. United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The trial court did not abuse its discretion, and there is no basis for reversal. Florida law is well-settled that the trial court has broad discretion in controlling the conduct of voir dire. Vining v. State, 637 So. 2d 921, 926 (Fla. 1994). In this case, as the record (and the arguments in Hoskins’ Initial Brief) make clear, the parties conducted extensive voir dire -- moreover, the prospective jurors were questioned at length about the effect on “gruesome” photographs on their impartiality. See, Initial Brief, at 42-44 (setting out questioning). Under the facts of this case, the trial court did not abuse its discretion in not 27
Page 1 and 2: IN THE SUPREME COURT OF FLORIDA JOH
Page 3 and 4: TABLE OF AUTHORITIES CASES Alston v
Page 5 and 6: Kearse v. State, 770 So. 2d 1119 (F
Page 7 and 8: STATEMENT OF THE CASE Hoskins was c
Page 9 and 10: analysis also confirmed the presenc
Page 11 and 12: Berger was found buried in a shallo
Page 13 and 14: ...” She was alive when she was h
Page 15 and 16: significant period of time after su
Page 17 and 18: In addition, he studies development
Page 19 and 20: Hoskins’ PET scan was conducted i
Page 21 and 22: Hoskins did not kill Berger “beca
Page 23 and 24: Bob Sarver (Undersheriff) was recal
Page 25 and 26: subject’s scan to the “normals
Page 27 and 28: the starting point for scaling purp
Page 29 and 30: Hoskins’ claim that his death sen
Page 31: Just the total number of them cause
Page 35 and 36: this Court approved the following j
Page 37 and 38: Hoskins requested modified jury ins
Page 39 and 40: are in the best position to assess
Page 41 and 42: INFLUENCE OF EXTREME MENTAL OR EMOT
Page 43 and 44: chip on his shoulder. How is the ch
Page 45 and 46: with an individual who has already
Page 47 and 48: Florida law supports the applicatio
Page 49 and 50: Weiss who did a neurological evalua
Page 51 and 52: psychiatry, neurology, neuropsychia
Page 53 and 54: developing his “normal” group w
Page 55 and 56: the physical administration of the
Page 57 and 58: 35 1093, 1177). However, there is n
Page 59: CERTIFICATE OF SERVICE I HEREBY CER

Answer Brief of Appellee - Florida State University College of Law

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