EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 8, 2009

Crackback: District Court Of Appeal Of Florida Finds Defendant's Racial Slur Should Have Been Exlcuded In Drug Dealing Appeal

One white officer and two black officers posing as drug buyers approach a man, and the white officer asks him for cocaine. The man refuses but later approaches the two black officers and offers to sell them cocaine, saying “I got you, but I ain't going to deal with you in front of this cracker,” referring to the white officer. The man is later charged with, inter alia, delivery of cocaine within one thousand feet of a convenience business. At trial, should the officers be able to reference the fact that the defendant used the word cracker? According to a Florida trial court, the answer is "yes." According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Rich v. State, 2009 WL 3189364 (Fla.App. 4 Dist 2009).

In Rich, the facts were as listed above. At his trial, the defendant moved to preclude the prosecution from referring to hus use of the racial slur "cracker," contending tha

the term was inflammatory, not probative, and might affect some jurors, which included three white males. The state opposed the motion, contending the defendant's statement explained why he sold the cocaine to a black officer. The defendant replied that, even if relevant, the prejudicial effect outweighed any probative value. The trial court denied the motion.

During the trial, the black officers testified to the defendant's statement. During one of the officer's testimony, the defendant renewed his objection, which the trial court overruled. During closing argument, the state, over the defendant's objection, referred to the defendant's statement as follows:

[The defendant] saw two people that he could sell cocaine to, and so he attempted to do it. Why [the black officers]. He told them. And I don't want to repeat the same words he used. But he felt comfortable selling to [the black officers], because of their race. He didn't want to sell to [the white officer], because he was white. And he made it clear, why he didn't want to sell to [the white officer].  

After he was convicted, the defendant appealed, and the Court of Appeal agreed with him that his use of the racial slur "cracker" was not relevant under Florida Evidence Code Section 90.401 because it did not tend to prove or disprove a material fact. According to the court,

The fact that race may have motivated the defendant to sell cocaine to a black person instead of a white person, as the state argued in closing, had no bearing on the fact that the defendant was selling cocaine. This case is unlike those cases in which a defendant's use of a racial slur was relevant to show the defendant's state of mind as an element of the crime charged.

The Court of Appeal, however, found that the trial court's error was harmless and thus affirmed.



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