*1 pos- had Holland as to lawyer testified how advised about that had informed lawyer Holland testified his sible sentences. carried the ag- him of sentences the and possible charges sentences, as well possibility of those as gregate the sen- not the recommendation that judge accept would pro- Holland’s from concurrently. lawyer plea tences run that a can that he advised his clients ceeding testified run rather than concur- require consecutively that sentences testimony uncontroverted. rently. This was most, accept At Holland would solici- hoped and surprised tor’s recommendation when sentencing However, himself consecutive sentences. he judge imposed required accept testified that he knew the was not circumstances, these Holland the recommendation. Under and guilty pleas knowingly cannot his were complain court erred in voluntarily Accordingly, grant- made. PCR relief, and the decision is REVERSED. ing below JJ., C.J., Finney, Moore, Burnett, Waller concur. STATE, Respondent George ADAMS, Appellant. 366) (470 Supreme Court *2 Haile, H. Wanda Appellate Senior Assistant Defender Carolina, Defense, Columbia, Appellate South for Office of Appellant. Condon, Molony Charles Assistant
Attorney General *3 Zelenka, Senior Assis- Attorney General Donald J. Deputy Coombs, Harold M. Jr. and William Attorneys tant General Giese, Columbia, Salter, III, B. and Solicitor Warren Edgar Respondent. for 6, 1996.
Heard Feb. 29, 1996.
Filed Apr. Justice: Associate
Toal, convicted on of mur George charges Adams was Appellant armed On Adams the trial robbery. appeal, alleges der and acts, erred in evidence of bad allowing prior particularly court robbery of his in another armed and of his participation Batson; use; in violated and in re finding cocaine the defense on the definition of reasonable fusing jury to instruct doubt. We affirm. BACKGROUND
FACTUAL/PROCEDURAL trial, Adams, at According testimony presented appellant to Brown, Farmer, Rosena and a few other friends were James together early morning crack cocaine on June smoking a.m., 5:30 decided needed more they they 1992. About K went into a Circle Adams and Brown drugs, for so money Drive Co- College on Columbia store located convenience demanded that Adams and Brown gun. Brown had a lumbia. money, complied. and cashier the cashier them give from that rob- money the others used the Adams, Brown, and immediately. crack, they which smoked more bery purchase at 6:00 approximately crack again ran out of they When Johnny’s and Adams rob Gro- a.m., Farmer Brown suggested and Joe by run Mildred store/grill cery, grocery small Johnny’s Brown and Adams to Farmer then directed Collins. at trial that two men en- testified Mildred Collins Grocery. (Brown) asked for The man in the white shirt tered the store. (Adams) asked for the man in the blue shirt cigarettes, beer, and also be- did not sell Johnny’s Grocery Because beer. the two suggested Mildred Collins frightened, cause she was street, which sold ciga- down the both men another store try his and de- pulled gun At that Brown point rettes and beer. in the cash money register. He took all the money. manded then entered the front husband Joe Mildred Collins’s and Joe ensued between Brown A scuffle apparently store. fell to the fired, ground. Joe Collins After a shot was Collins. gun picked up Collins’swallet of the men took Joe One then ex- and Adams carried into the store. Brown Brown had According was dead. Joe Collins Johnny’s Grocery. ited from the was money testimony, Rosena Farmer’s drugs. more purchase used to in connec- murder and armed was tried for
Adams theory Grocery. State’s Johnny’s with the incident tion that Brown was murder count was the case as to the under of murder man, guilty that Adams also but trigger convicted jury all” doctrine. The one, hand of the “hand of robbery. murder and armed Adams of both Adams appeals.
LAW/ANALYSIS Bad Acts A. Evidence Prior of evidence admitting erred the trial Adams asserts K and of his robbery in the Circle participation Adams’s of 17, 1992. disagree. the of June morning crack use on his that evidence of trial, Adams argued and at Prior to 118 Lyle, to State v. pursuant excluded bad acts should be
prior (1923). 406, 118 argued 803 The solicitor S.E. S.C. K on robbery in the Circle participation of Adams’s evidence showed Johnny’s Grocery robbery morning the same of the exis and intent and also demonstrated Adams’s motive argued scheme or solicitor plan. tence of a common a motive for of the res and showed gestae cocaine use was part fell evidence of bad acts prior the crime. The found the ad and held the evidence exceptions raised Lyle within missible. of a defendant’s law evidence precludes
South Carolina the defendant’s prove or other bad acts to prior crimes (1) mo- except crime to establish charged for the guilt (4) (2) (3) accident, or a com tive, intent, absence of mistake 416, 125 S.C. at identity. Lyle, mon or or plan, scheme (2d) 364, Bell, 18, 393 v. 302 S.C. S.E. 807; S.E. at accord State 227, 112 L.Ed. denied, 498 U.S. S.Ct. cert. (1990). clear and con The evidence of bad acts must be at at 807. vincing Lyle, to be admissible. Further, convincing the evidence is clear and though even the trial must exclude it if Lyle exception, falls within a substantially outweighed by danger value is probative Alexander, defendant. of unfair to the State (1991); 377, 401 S.E. see also Rule SCREvid S.C. (recently adopted). participated
The evidence that Adams with Brown K half an hour before the robbery only of the Circle Johnny’s Grocery and murder at is relevant to in the triggerman show Adams’s intent. Adams was not an Johnny’s Grocery, only alleged accomplice. murder at but Therefore, murder, the State prove guilty Adams was a reasonable doubt proving beyond had burden to commit an unlawful act— Adams combined with Brown that homicide was a natural and proba- armed —and See, Johnson, of the act consequence planned. e.g., ble Adams’s mere presence cannot establish Adams’s Johnny’s Grocery with Brown must must a combination. Id. guilt; prosecution prove way, Johnny’s Grocery Stated another Adams’s intent rob liability was a to his for murder. prerequisite with Brown *5 and K that Brown robbery armed of Circle The that when a.m. tends to show committed at 5:30 Adams at 6:00 with Brown Johnny’s Grocery entered Adams in- incident, the two half an hour after first a.m., only Simmons, v. State place. tended to rob Cf. (1993) of attacks on prior evidence (finding 427 S.E. in enter- intent admissible to show defendant’s elderly women — woman), U.S. grounds, rev’d on other elderly home of ing (1994); v. Ham- 2187, 129 L.Ed. State —, 114 S.Ct. (2d) 411 that the (finding mond, 270 S.C. property in a truck on defendant’s marijuana presence to distribute co- to defendant’s intent admissible as relevant caine). obviously K robbery the Circle regarding The evidence value is also However, high its probative is highly prejudicial. Adams’s intent to the evidence tends to establish because which combi- robbery, with Brown to commit armed combine murder under the “hand of is an essential element of nation admitted The trial one, judge properly hand of all” doctrine. this evidence.1 robbery to the prior Adams’s cocaine use
The evidence of both to show was admissible Johnny’s Grocery and murder appreciate great of the res part gestae. motive and as of a result from evidence prejudice may that unfair possibility cases, cocaine. In there- criminal use of past defendant’s that evidence fore, careful to ensure especially we have been exceptions falls within one of actually use prior drug of un- danger outweighs value Lyle probative and several cases are Although defendant. fair to the perti- three are generally, particularly this issue relevant to today. us nent to the case before (1992),this Smith,
In State case im- court in a murder capital held that the trial Court voluntary convincing. himself made a Adams The evidence was clear robbing K. Rosena police he the Circle in which admitted statement robbery of participated in the that Adams told her he Farmer also testified only Brown police, Adams indicated In another statement to the the Circle K. two men entered K clerk at the Circle testified entered the Circle K. The had participation in that Adams once denied The mere fact and robbed the store. cannot be clear and convinc not mean the evidence K does Circle ing. morning on the of the Similarly, evidence of cocaine use convincing. murder was clear and of cocaine. of the defendant’s use admitted evidence
properly blud- of the case was defendant theory State’s trial, At one her husband to death with baseball bat. geoned that at time in the past, witnesses testified some State’s by trading had cocaine pistols he and the defendant obtained *6 had to defendant’s husband and defendant belonging in the left the beside the road while she past waiting witness (2d) 445, at at 498. On appeal, went to cocaine.Id. S.E. get the defendant’s cocaine use was rele- argued prior State S.E.(2d) 446, at vant to a motive for murder. Id. establish at 498. that First, drug
This it found “evidence of disagreed. Court where to motive for a crime ... incompetent use is establish does not between the support any relationship record Bolden, crime and the use.” Id. State v. 303 S.C. drug (citing added). (2d) The court indi- 41, (emphasis 398 S.E. issue, the crime at drug cated that where use is unrelated to 447, 424 evidence of the use should be excluded. Id. at drug (2d) at 498. also the dissent’s that rejected argument S.E. the evidence of cocaine use was of the res In so part gestae. that “the doing, special prior the Court made note incident cocaine at an time was cer- smoking unspecified [defendant] murder.” Id. tainly contemporaneous with [victim’s] (2d) Bolden, (1990), In this 398 S.E. trial in allowing Court found that the court erred evidence that he night that the defendant smoked crack cocaine before an armed Evidence at trial in robbery. presented committed a dicated the defendant had checked into hotel with a woman while crack at the hotel. The next and had smoked cocaine he the hotel clerk at We held that morning gunpoint. robbed there was in the record to indicate a rele “nothing logical during night vance between use of the crack cocaine be fore the and the which occurred at 6:10 a.m. robbery (2d) the next Id. at at 494-95.The re day.” S.E. Court and the dissent that evi jected argument by State dence of defendant’s was admissible as of the res part 43, 398 gestae of the crime. Id. at S.E. 495. Coleman, Finally, State v.
(1990), held the trial court should not unanimously this Court have allowed evidence that the defendant was a social user of cocaine. The Court that evidence of bad acts recognized admissible, but found that: sometimes is committed legal trial his discretion and abused there was such evidence. While testi- admitting error on the morning “wired” mony appellant appeared to murder, suggest appellant’s there was no evidence Further, there was the result of cocaine use. condition to the inference support in the record nothing in drug were involved a transac- the victim and appellant social use of cocaine was appellant’s tion. Evidence of to ... motive for incompetent therefore establish fact, In function of this evidence was only murder. irre- character and social demonstrate bad appellant’s as a result appellant The sponsibility. outweighed probative of this evidence far admission value, if any.
Id. at at 660-61. from distinguished easily case can be present Smith, the evidence in Bolden, and Coleman. Unlike *7 to show Smith, competent the evidence in the record is because the evi- Johnny’s Grocery Adams’s motive for robbing drug between the use relationship dence establishes itself a statement gave the the defendant robbery. Specifically, and the the K and “spent he and Brown robbed Circle indicating we rocks, We smoked what on about worth. money $60 told us about a Pookie came around. She bought. [Farmer] then told us the store we did Grocery.] She [Johnny’s place she, a.m. Rosena Farmer testified around 6 6/17/92.” Brown, Adams, “getting high” and some others were 1992, money ant that the from rob- of June morning “rocks.” Grocery buy was used to bery Johnny’s of indicate a testimony and Farmer’s Both Adams’s statement robbery. use and drug relevance between logical and Brown robbed to that Adams evidence tends show buy money had run out of Grocery they because Johnny’s and cry espe- are a far from Bolden crack cocaine.There facts there was no direct evidence Coleman, where cially alleged related to the crimes. cocaineuse was defendants’ immediately prior cocaineuse The evidence of Adams’s as of part admitted properly to the also Adams was tried. the crimes for which the res gestae (4th 1980)(ci- Masters, 622 F. Cir. United States omitted), analysis: a useful provides tations admissibility of the bases for the of evi- accepted One dence of other crimes arises when such evidence “fur- necessary nishes of the context of the crime” or is part case, intimately a “full of the or is so con- presentation” with of the crime explanatory charged against nected the defendant and is so much a of the of the part setting proof appropriate case and its “environment” order “to of the crime on trial complete story by prov- ” ing gesta’ its immediate context or the ‘res or the “un- offense is ‘solinked of time and charged together point charged circumstances with the crime that one cannot be fully shown without the other...’ proving [and thus] of the res of the crime And where part gestae charged.” evidence is admissible to this “full provide presentation” offense, of the is no reason to fragmentize “[t]here event under of the inquiry” by suppressing parts “res gestae.” Bolden,
In Smith and majority rejected argu- dissent’s ments that the defendants’ cocaine use formed part Here, however, the res gesta. temporal proximity of the cocaine use to the and murder is so close that one deny cannot that the cocaine use was so much a part “environment” of the crime that it omitting the evidence of See, unnecessarily fragmentize would the State’s case. e.g., Miller, State v. (finding S.E. that where certain assaults formed of the rob- part parcel bery tried, for which defendant was being evidence of the as- admitted); —, saults was properly Hough, S.C. (Ct. 1995) (cocaine use not of the res App. part of crime committed where use was not gestae contemporane- *8 crime). ous with The use of the cocaine here was inextricably intertwined with the and murder. Under these cir- cumstances, such evidence was admitted as properly part the res of the gestae crime.
B. Batson Issue Adams next that the trial argues quashing erred after the defense original jury panel finding exercised
123 manner. We racially discriminatory in a strikes peremptory of the defendant or of right that there is no but hold agree, not been vindicated. We already that has prospective jurors for reversal. find no and no basis chal- dire, exercised its peremptory voir defense During a requested The prosecution seven Caucasians. lenges upon 79, 106 to Batson v. 476 U.S. Kentucky, hearing pursuant (2d) (1986). 69 found a Batson 1712, S.Ct. 90 L.Ed. that defense counsel’sexpla- violation based on his conclusion ju- one of the prospective nations for two strikes—that knew too much about the reporter, process, rors was a court and that another intelligent,” prospective and looked “too trial neutral. juror racially knew the —were date, have Batson to interpreted require party To we present that at issue to peremptory challenges exercised neutral, racially reasonably an that is clear and explanation Tomlin, 294, 384 299 E.g., S.C. specific, legitimate, (2d) Green, 94, v. 409 (1989); 707 see also State S.E. (2d) test), denied, cert. 503 (articulating S.E. 785 U.S. (2d) (1992). If the explana 118 L.Ed. S.Ct. criteria, the trial find a satisfy judge may tion does not these If, however, the jury panel. expla violation and throw out the criteria, the of the strike then opponent nation meets these neutral proving allegedly expla bears the burden of State, E.g., Sumpter nation is pretextual. (1994). one shows demon Generally, pretext by of other races were jurors situated
strating similarly Moreover, findings regarding pur Id. the trial court’s seated. are are entitled to deference and great discrimination poseful if erroneous. State v. only clearly Dyar, to be set aside 77, 452 S.E. S.C. —Elem, —, 115 however, in Purkett v. U.S. Recently, (1995), the United States S.Ct. L.Ed. altered adopted slightly procedure Court Supreme Purkett, the analysis. of the Batson Under step for the second have challenges any will not peremptory proponent reasonably specific, legitimate explana- of presenting burden Instead, racially it need only present for the strikes. tions neutral explanation: ex- does not demand an process
The second of this step It or even persuasive, plausible.... planation *9 124 the jus- until third that the of step persuasiveness
not the in the trial tification relevant —the which step becomes of has whether the the strike opponent court determines carried of discrimination. proving purposeful his burden justifications may fantastic implausible At that or stage, (and will) found to be for probably pretexts purposeful be trial choose to say judge may discrimination. But to that a quite reason at 3 is silly superstitious step disbelieve a or terminate saying judge different from that a trial must silly the when the race-neutral reason is inquiry step at the that the or The latter violates superstitious. principle persuasion regarding ultimate of racial motiva- burden with, from, never the of the tion rests shifts opponent strike. (citations
Id. at at —, 131 L.Ed. S.Ct. omitted). the racially given, Once a neutral explanation the explanation the strikes must show party challenging Id. mere for racial discrimination. pretext take the standard delineated opportunity adopt this in Purkett. test, this new the strikes party opposing Under a facie man- will make case of discrimination the same prima Jones, to words, ner as before. In other pursuant trial a (1987), S.C. 358 S.E. must hold judge Batson or cognizable group when members of a racial hearing requests hearing. are and the a gender opposing party struck however, will a analysis, require only The second of step by the of the In the explanation proponent race-neutral strike. race- step, third of strike must show that the opponent before, was explanation given pretext. pre- neutral mere As showing similarly text will established generally by be See members of another race were seated on the jury. situated State, Sumpter Under circumstances, explanation given by some the race-neutral may judge that the fundamentally implausible be so proponent ex- determine, analysis, at the third may step a of dis- pretext showing was mere even without planation note that new test not vitiate treatment. We this does parate Batson, first approach we retain our current to the because of the Batson Purkett analysis. approach and third prongs the strike ultimate bur- simply opponent returns to discrimination. showing purposeful den used, trial in the
No matter which test is a case erred Batson. The present finding violation-of explanations given by found that the defense juror reporter counsel—that one court and looked “too intelligent,” juror another knew the —were *10 neutral, are racially explanations racially legiti- neutral. These mate for A exercising peremptory potential reasons strikes. the trial a juror’s acquaintance judge perfectly with valid for the a explanation exercise of strike. The ex- peremptory planation juror intelligent” one looked “too could be fact that suspect viewed as but for the the primary explana- tion for the the given potential juror strike was was em- a court ployed reporter may as have known “too much” judicial process. about Under out past precedents, judge racially should have found these reasons neutral and legiti- mate and the prosecution allowed an to show that opportunity were explanations pretextual. Under the new Purkett standard, the judge also should have allowed the to inquiry to the third proceed step, because the explanations given were faciallyrace-neutral.
The Record contains very little information that would allow this Court to determine whether defense counsel al- lowed to be seated jurors black who were situated to similarly the white jurors who were struck. The Record lacks this infor- mation the trial because did not allow the Batson hear- ing proceed stage. third Without more information in Record, we conclude that the trial court erred in a finding Batson violation and in quashing original jury.
Nevertheless, we do not reverse based on this error. yet We have not ruled on the for a trial proper remedy error in judge’s a Batson violation and finding quash- ing jury. This situation is fundamentally different from one in which the trial judge dis- improperly upholds racially criminatory peremptory challenges. When the trial court im- properly upholds challenges, such there has been a violation of the stricken Fourteenth jurors’ equal protection Amendment if the rights. Additionally, prosecution party improperly exercising peremptory that the trial challenges judge upholds, the defendant has been denied a to a fair and right impartial of his jury peers.
However, where, here, as the trial judge improperly have rights juror’s equal protection a no quashes jury panel, that a erred An determination appellate been violated. Batson vi a Batson violation means the No obvious: finding therefore, was, any no denial occurred, and there olation Moreover, way we see no protection rights. one’s equal A were violated.2 defen rights fair trial which the defendant’s v. State jury. E.g., any to trial right by particular dant has no (1990). the trial Caldwell, 494, 388 When a new selected jury panel, parties the first judge quashed jury. about the new complaints Adams has voiced no jury. from the error. judge’s that no resulted find Doubt Instruction on Reasonable C. that rea- trial, jury a instruction requested
At Adams that would cause doubt “is the kind doubt sonable to act.” See State Man- reasonable to hesitate person reason ning, (defining S.C. denied, doubt), cert. 914, 112 S.Ct. 503 U.S. able to define reason The trial refused L.Ed. the reasonable doubt *11 argue able doubt. Adams does misleading, or but as was incorrect charge given by give Manning definition constituted serts the refusal to merit. manifestly without argument error. Adams’s legal (2d) Johnson, 637 See State v. 445 S.E. (trial to offer a definition of rea refusing did not err doubt). sonable
CONCLUSION of the trial court is reasons, judgment For the foregoing AFFIRMED. JJ., concur.
Moore, Burnett, Waller C.J., specially concurring separate opinion. Finney, Finney, Chief Justice: opinion might different were there evidence Our on this matter be any persons jury ultimately it that de selected for the case had on Franklin, See State v. jury panel. from the first fense counsel struck (when finds Batson violation and judge properly trial seating improperly quashed, require original panel no error for — denied, , panel), cert. jurors U.S. 116 S.Ct. stricken from first — (1995). L.Ed. affirmed, unlike but conviction should be appellant’s
I agree proce- well-settled Batson I not alter our majority would deci- Court’s Supreme conform to the United States dure to — 1769, 131 L.Ed. Elem, —, 115 S.Ct. in Purkett v. U.S. sion “implausible” if a offers my party In opinion, strikes, the Bat- for its challenged or “fantastic” explanations New at that Webster’s granted point. son motion should be disbe- “provoking defines as Dictionary implausible Collegiate real.” I would not fantasy: as “based on lief’ and fantastic to demon- challenge the Batson asserting require party given treatment where the explanation strate disparate reason, I in the re- only For this concur unbelievable. patently sult here. General, Carolina, Attorney Respon State of South
T. Travis MEDLOCK as 1JCWB7828FT129001, 1985 JEEP CHEROKEE VIN dent v. ONE GUNNING, YORK, Appellant Appellant. v. CITY OF Lou Elmer Respondent. (470 (2d) 373) Supreme Court