*1 STATE, Respondent , v. James, Appellants. Reggie COCHRAN Willie No. 4116. Carolina. Appeals
Court of South May 8, Heard 2006. May Decided *4 Columbia, Appellants. of for Shurling, Tara Dawn McMaster, Deputy Dargan Chief Attorney Henry General McIntosh, Attor- Deputy Assistant W. General John Attorney Elliott, Attorney General Salley W. Assistant ney General Columbia; Randolph all of and Solicitor Shupe, Deborah R.J. III, Hampton, Respondent. of for Murdaugh, KITTREDGE, J.: aby convicted Reggie and James were
Willie Cochran James was Reggie and sentenced. first-degree burglary of battery high of and sentenced assault also convicted from the trial court’s They appeal nature.1 aggravated Batson motion and quashing the first State’s granting Kentucky, Batson 106 S.Ct. 476 U.S. jury selected. (1986). trial because the L.Ed.2d 69 We reverse han process to the failed to adhere mandated court motion, a Batson Appel and the convicted dling trial erroneous whom the comprised lants was Appellants striking. from prohibited ly OF REVIEW
STANDARD of a or denial granting In the typical appeal.from motion, to Batson appellate give courts deference erroneous clearly court and findings apply Shuler, standard. review, however, premised This standard for Batson following procedure the mandated
the trial court Here, assignment of error is failure hearing. where the must answer hearing procedure, we follow our presented, of law is question of law. When question injury Reggie guilty Appellant was also found of malicious James however, verdict, despite appropriate personal property; after trial, during of the the trial court decided made the course motions Accordingly, testimony” issue and found "no of vandalism. revisit this charge. acquittal to this directed a verdict of the court *5 V, standard is plenary. review See Const. art. 5 and 9; Ann. S.C.Code 14-3-320 and -330 (Supp.2005); S.C.Code Ann. (Supp.2005) 14-8-200 (Supreme Court and Court of law). Appeals jurisdiction have to correct errors of
DISCUSSION
I. begin We our discussion mindful of the difficult task our judges encounter evaluating the propriety of wide- ranging given reasons for the exercise of peremptory chal- level, lenges. At the appellate we issues view like Batson challenge through the lens of hindsight, and from that per- spective, we must remain sensitive vagaries to the and bur- dens facing trial judges. Accordingly, we are not easily persuaded second-guess a trial discretionary court’s calls.
By design, clearly erroneous standard of (applica- review ble in the typical Batson appellate setting) suit follows placing constraints the appellate court. The reversal here comes not from second-guessing, but result a legal error in not adhering to procedure, the mandated Batson specifically the failure to require opponent of the strike to prove so, purposeful discrimination. recognize Even we experienced and trial judge able presented proble- with matic proceed Batson motion. We now to the case hand.’
II. selection, During Appellants, black, are who exercised ten of their twenty peremptory challenges, striking two black women, men, three white and five white women.2 The State opposed Appellants’ strikes requested hearing. Batson, Supreme Court held the Equal Protection
Clause of the Fourteenth Amendment United States prevents Constitution the prosecution from striking potential on the basis of race. 476 U.S. S.Ct. 1712. In McCollum, Georgia U.S. S.Ct. burglary
2. A
charged
defendant
is entitled to ten
challenges and the
§
entitled
five. S.C.Code Ann.
14-7-1110
Codefendants,
(Supp.2005).
jointly,
twenty per-
tried
are entitled to
emptory challenges.
Id.
Batson,
expanded
Court
Supreme
L.Ed.2d 33
from
a criminal defendant
holding
prohibits
“the Constitution
ground
on the
race
discrimination
purposeful
engaging
*6
Thus,
during
challenges.”
peremptory
the exercise of
the
selection,
may oppose
the
or
either the defendant
a
a member of
juror
of a
who is
challenge
is
peremptory challenge
racial
Once
cognizable
group.3
must,
conduct a Batson
upon request,
the trial court
opposed,
v.
forth in Purkett
to the
set
hearing
procedures
and adhere
1769,
Under our Batson of facie case prima has made out a peremptory challenge one), the of production burden (step racial discrimination to of the strike come forward with proponent shifts the two). expla- If race-neutral explanation (step race-neutral (step then tendered, is the trial court must decide nation three) pur- the strike proved the of has opponent whether poseful racial discrimination. 767, Court observed Supreme at 1769.
514 U.S. 115 S.Ct. demand an process explana this does not step second of “[t]he Id. plausible.” or at tion that even persuasive, two, therefore, of the strike proponent the S.Ct. 1769. At step reasonably presenting specific, burden of carry “any does Adams, at the strikes.” legitimate explanations “[ujnless Therefore, discriminatory at 371. provided by propo the explanation intent is inherent” in be deemed race strike, of “the reason offered will nent the third step court must proceed neutral” and the trial 1769; Purkett, 514 at 115 S.Ct. the Batson U.S. process. Kearse, S.E.2d e.g., see Payton (1998) evinces juror because she was a “redneck” (striking facially therefore not race-neu discriminatory intent and is tral). 127, 146, B., 511 U.S. 114 S.Ct. also J.E.B. v. Alabama ex rel. T. See (1994) (recognizing Amendment the Fourteenth L.Ed.2d 89 juror prohibits of a to the United States Constitution gender). basis three, step
At of the strike must opponent show offered, race-neutral, the reason though facially actually pretext mere engage purposeful racial discrimination.
Adams, opponent 372. The carries showing strike “the ultimate burden of purposeful discrimination” and must demonstrate the pretextual nature the stated reason for the strike. Id. This burden is generally established showing similarly situated members of another race were seated on the Id. at jury. at 371. illustrates, As our case law unless the discriminatory intent is inherent in a fundamentally implausible explanation, of the strike opponent must make a bona showing fide of the proponent juror strike seated a nearly who shared every quality with the struck other than race to establish pretext. When the opponent of the strike proves propo discrimination, nent practiced racial purposeful the trial court must quash the entire and initiate *7 panel Jones, another jury selection de novo. See State v. 293 S.C. 58,
54, 701, S.E.2d abrogated grounds on other 306, Chapman, 302, 317, 317 S.C. S.E.2d (1995); 577, see also State Heyward, 357 S.C. 169 (Ct.App.2004).
III. We now turn to the first and jury ensuing selection Initially, Batson motion. we note the first was jury diverse. woman, men,
It was comprised one white three black four men, Thus, white and four black women. composition the first does not in jury Appellants indicate engaged purpose Shuler, ful racial discrimination. See State v. (“[T]he (2001) composition of the
panel may is a factor that determining be considered when a in party whether discrimination engaged purposeful pursu a challenge”). ant to Batson disagree we that
Additionally, argument State’s Appellants “pattern” jurors embarked on of striking of their race. did not chal- Appellants peremptory use their lenges solely They from racial single group. juror,
selected white male their first and first struck a Further, black Appellants ultimately female. struck although women, black and women, they struck five also two white men. four white See State one white seated woman (1999) 59, 66, (“Although Ford, jurors, most of strikes white he against exercised his appellant fact that juror...-. appellant did white ¿very [T]he jurors is not to strike white challenges used most his discrimination.”). sufficient, itself, to establish purposeful ten their allotted only twenty peremptory used Appellants against to discriminate white they If intended challenges. their have exercised jurors, they certainly would Instead, five liberally. Appellants seated challenges more jurors. white first and the fact that diversity of the
Despite engage pattern purposeful did not in a Appellants appear discrimination, opposed Appellants’ strikes racial the first hearing. Batson We now examine requested in our view demonstrates hearing, which procedure. the mandated Batson court’s failure to follow first he struck explained counsel that Juror Appellants’ woman, an indignant outraged because she gave black interest expression. The record the State had no reveals jurors, of black and the matter was challenging the not pursued. he explained counsel next struck Juror
Appellants’ woman, the last name of a local because she shared race-neutral, facially reason Sheriff. Because this Deputy two, and step required satisfied the State Appellants racial discrimination prove Appellants engaged purposeful Purkett, 115 S.Ct. satisfy step three. U.S. *8 (holding process that at second step present the strike does not have to proponent of one). reason, or a race-neutral persuasive plausible only even State, their Appellants countered that neither nor merely The counsel knew for sure whether' Juror 63 was related The the same last name. trial court was Deputy Sheriff with pretext. and found This persuaded argument State’s race-neutral, error. The reason for Juror 63 was failed to its burden of carry proving purposeful State discrimination. next
Appellants’ counsel that he struck explained 52, woman, Juror because she an gave “indignant” and look. judge “shocked” The trial preempted State’s re sponse, noting he did observe any indignant such or expression shocked from Juror 52. trial court pro nounced Appellants’ pretextual. reason The demeanor aof juror is prospective generally race-neutral reason for em Tucker, ploying peremptory challenge. 1, 334 S.C. 99, (1999) (“[C]ounsel 512 S.E.2d may strike venire
persons based on hold, their demeanor and disposition.”). We however, that where a strike is based on a solely purported specific disposition, demeanor and judge and the trial makes an express contrary finding, the deferential clearly erro applies. neous standard of review
An will, express finding by the trial court unless erroneous, clearly counsel’s trump perception stated of a prospective juror’s disposition. demeanor and this situa tion, the trial court determines credibility. See counsel's Cockrell, 322, 339, Miller-El v. 537 U.S. 123 S.Ct. (2003) (“Deference
L.Ed.2d
is
because a
necessary
review
court, which
ing
only
dire,
from
analyzes
transcripts
voir
not as well positioned as the trial court
make credibility
is to
determinations.”);
York,
Hernandez v. New
500 U.S.
364-
(1991)
111 S.Ct.
credibility of counsel. clearly be set unless deference and will not aside great erroneous.”) omitted). (citations a trial deference to extending The considerable rule — be not otherwise credibility determinations —could
judge’s
For
remaining
the
remnants of Batson.
undermining
without
every
if a
were able
overcome
example,
party
juror’s
a
de-
by
challenge
merely claiming
prospective
the
inappropriate,
meanor and
were somehow
disposition
be weak-
underlying Batson would
equal protection principles
important
an
role
gatekeeping
ened. The trial court serves
in no
manner diminishes
regard.
today
this
Our decision
(or
of
continuing
party’s) perception
critical role of counsel’s
a
the exercise
juror’s
disposition
a
demeanor
prospective
an
In the absence of
challenges.
express
of peremptory
court,
striking
juror
contrary
party’s
the trial
of
finding by
be
upheld
on demeanor and
should
disposition
based
express findings
court.
trial
As for Juror
court,
finding
clearly
is not
erroneous.
pretext
then
he struck Juror
explained
counsel
Appellants’
woman,
manager
because she is
wife
office
in the
prominent
community.
employment
of a
dentist
using
reason
of a
is a race-neutral
for
prospective
status
623, 632,
peremptory challenge.
Haigler,
State
(1999)
is a
(unemployment
race-neutral
515 S.E.2d
strike); Ford,
Counsel responded: her he knew husband. The Well, The Court: ... if my you try thinking prejudice their somebody by I mean as as it’s position, long not law that, enforcement or like something I think that don’t you *10 what her thinking know is if don’t you know her.
The trial court then found the striking Juror violated noted, Batson. As unless discriminatory intent is inherent in strike, the explanation provided by the proponent of the the standard announced in require Purkett and Adams does not the proponent of the carry any strike to burden once a race- neutral reason is for offered the strike. The burden is opponent of the strike racial discrimina- purposeful show tion. it, effect, The trial court erred placed when burden on Appellants disprove racial discrimination. for
Counsel next that Appellants explained he struck man, Juror a white he because was a retired farmer. The status of a
employment juror a race-neutral prospective Ford, for using reason peremptory challenge.
65, 512 again, 504. Here the trial court found Appellants’ striking counsel’s reason for Juror 90 pretextual requiring word, without say State to much less prove purposeful racial discrimination.
Appellants’ counsel next he explained struck Juror black No for woman. reason the strike was as neither sought, the court nor the Appellants’ State was concerned with the jurors. black
Appellants’ counsel then stated he struck Juror a white woman, she a magistrate worked as judge’s secretary.
The trial court found this reáson was not pretextual, presum- ably because her employment was law-related.
Appellants’ counsel then explained he struck Juror man, “a gave because he more look than the outraged court, others.” The trial hearing without from State and demeanor, finding juror’s without on the making simply pretextual: declared reason Okay. pretextual.
The Court: I find that next that’s one.
The trial procedure, court failed to proper follow and this was error. 7, a white explained next that Juror counsel
Appellants? his agent and struck, an insurance man, because “[h]e’s that informed the court also is a bank teller.” Counsel wife sheriffs something working about “said proper court found The trial department.” doing 7] was “thought [Juror counsel pretextual because department.” for the sheriffs work his concern and the court counsel shared with Appellants’ (or employed spouses jurors)
experience jobs, agents: as insurance certain such Honor, rela- put I Your never Appellants: Counsel my ju- agents[][o]n and insurance bank tellers tives [sic] you’re if an Or you’re agent. ... If insurance ries[.] if teller agent. they’re Or bank married to an insurance straight- teller. These are the most married to a bank or find, that, laced, people you could conservation [sic] *11 your. client. always And ... convict opinion. they will my he Ju explained struck Appellants’s counsel Finally, woman, to First, according for reasons. two ror white counsel, to segregate at school that used taught Juror 93 Second, juror’s husband is basis of race. students on the reveals, the following exchange agent. insurance As an finding Appellants’ not before trial court did consult pretextual: reason was Patrick ,[Juror 93 a teacher at Appellants: is] for
Counsel [School], Honor, predominately was Henry Your which —I it go to there now but was they people think allow black Henry Patrick response desegregation, as a racist to started has recently [t]hey It an all school which was. was — not generally there But it’s allow black students now. that, they top I want. And on something somebody — have— your and put Go ahead pretextual.
The Court: That’s on, ahead. though. record Go Honor, don’t think that just for Your I Appellants:
Counsel for a that’s white that works racist institution somebody just fraught I think that’s judging my client. should.be an her insurance problems, Judge. And husband’s one, people of most conservative class one the' agent, of, Judge. I could think I—that Well, Okay. every Court: one of those reasons is And I
stereotype. think if it’s a stereotype pretextu- it’s al.... I find that that pretextual. was [ ]
The reason Appellants’ counsel offered to strike Juror in part Moreover, was race-neutral. it seem plausible would for a black potential juror defendant to strike a who worked a school perceived to be in response founded desegregation. Although juror’s race is tangentially issue, it important juror is struck, realize that the not race, because of her but because of her an association with organization which perceived counsel as having a history racial practicing discrimination. prejudice long
Racial has been held to be a valid basis juror for for cause. § See S.C.Code Ann. 14-7-1020 (Supp.2005) (requiring the trial judge to ask whether are they related to either party, any have interest cause, expressed have or formed an or opinion, any know of or prejudice bias party). either Beyond challenge for cause, this court has held that principal “[t]he function of the peremptory strike is to juror allow of a removal (cid:127)whom the challenging party perceives prejudice, or bias even where the challengeable cause.” State Short, 329, 335, (Ct.App.1997), aff'd, follows, then, It that perceived prejudice may serve as a basis for exercising (for peremptory challenge. juror’s Because a perceived bias reason) whatever lies at the of virtually every core challenge, courts should intervene when it is only demonstrat ed that the strike runs afoul of the Constitution. judgment,
In our Appellants’ neither of explanations *12 Moreover, here was pretextual. after counsel offered seem ingly valid for striking reasons Juror the trial court did not require prove purposeful the State to racial discrimination.
Rather, the trial required Appellants’ to prove counsel that he did not purposefully discriminate on the of basis race. Furthermore, This was error.4 just because the given reason suggest perception Henry We do not that counsel's of the Patrick any validity. Perceptions School perceived has biases —whether every virtually peremptory challenge. true or not —are at the heart of striking juror perceptions of generally The a based on of will be bias necessarily fit does not juror stereotype a a striking may pretextual. mean reason is quashing Batson motion and
In the State’s granting court erred. jury, first the trial
IV. on, proce- the Purkett-Adams trial court abandoned Early to require a The trial court failed dure for Batson motion. racial establishing purposeful burden of carry State to its procedure. of the in the third step discrimination noncompliance step the third urges us excuse “pattern” of Appellants’ procedure the Batson noted, pattern, find no such jurors. As we striking white no finding. the trial court made such only half of their allotted strikes. exercised Appellants against were exercised black first and sixth strikes Appellants’ event, would any presence pattern the mere women. procedure. from the Purkett-Adams justify departure (1999) Ford, See against of his (“Although most strikes appellant exercised juror.... every he strike white jurors, [T]he did not white challenges to strike fact that used most of his appellant itself, dis sufficient, purposeful to establish jurors is not crimination.”). as much acknowledged 'the trial court Even process. argued When the State midway through “in that class of white counsel was same strike defense struck,” correctly the trial court who been persons have [Appellants be in that ... and “can class observed juror].” a valid Never [that still have reason can] ad theless, race-neutral reasons many the trial court found to the third pretextual resorting without by Appellants vanced would persuasion where the ultimate burden of step and final on imposed have been the State. impermis-
upheld it is the reason for the strike is unless established that proof gender. framework sibly based race or The Batson burden proper between seeks to achieve a balance as set forth in Purkett-Adams allowing potential juror party's ability peremptorily while gender prove purposeful discrimi- opponent racial or the strike nation. *13 sure, To be a trial finding court’s of a suspect pattern of peremptory challenges carry may weight the ultimate dis- of a Batson position motion. But the claim mere or appear- ance that peremptory challenges fit a pattern into does not excuse the failure to follow the three-step mandated Purkett- procedure. Adams
This is by illustrated the State’s use chal- peremptory lenges in the selection of the second used jury. strikes, against
four all blacks. Appellants moved under quash to the jury. Under the “pattern” theory, State’s the trial presumably court justified would have been in dis- pensing third and final step (requiring Appellants discrimination) prove purposeful and allowing pat- the mere striking tern of blacks to pretext carry establish and motion in State, however, favor. The Appellants’ provided specific strikes, race-neutral reasons its and court the trial proceeded to the final step, Appellants requiring prove purposeful discrimination. motion,
For a Batson the trial court must follow the proce- dure outlined in Purkett and Adams. find our opinion We Smalls, 301, 307, 519 S.E.2d Smalls, (Ct.App.1999) instructive. the defendant used nine of his ten peremptory challenges jurors. on white The State these opposed requested strikes and a Batson At hearing.
the Batson hearing, the defendant he struck argued the white jurors they mean, stern, at him looked in a accusatory manner. the trial these Although court admitted reasonable, reasons it might be they nevertheless determined pretextual. Importantly, were it this determination made requiring prove without the State to the defendant engaged purposeful racial discrimination. This court reversed the trial court’s because it failed “to finding require carry the State to its burden present pretext prescribed evidence by step three of analysis.” Id. Adams/Purkett
at 797. similarly We conclude the trial court erred it when process abandoned the mandated Purkett and Adams effectively placed burden of disproving pretext purpose- ful discrimination on Appellants.
V. men, The second comprised two black two men, women, three black and five Appellants white women. and the challenges, of their any not use
did it from those determined Appellants forbade *14 jury the selection. Con- during struck first improperly were all on peremptory challenges, the used four versely, State and the State’s strikes jurors. Appellants opposed black hearing, the At second Batson hearing. Batson requested Batson adhered to the mandated scrupulously the trial court racial purposeful Appellants and show process required explana- race-neutral after the offered discrimination tions. it a black the stated struck Juror example,
For woman, prison. time in she has brother who served race-neutral, the hearing explanation, After this which was required Appel- and process court the Batson trial followed the strike to show racial discrimination. Yet purposeful lants family that those nothing stereotype more than was are sentences also unsavo- prison members who have served held stereotype. Had the trial court ry guilt-by-association —a Batson the during hearing, it took first approach and that “pretextual” have been decreed State’s would end of it. would have been the
VI. is reversible. Our We address error now whether that even if the court commits error case law dictates motion, error Batson is reversible granting State’s trial' jurors whom the only comprised if the second from erroneously prohibited defendant 373; Adams, on at 470 S.E.2d at based Batson. 497, 504, 486, 490 Rayfield, (Mar. 3, 2005). A has granted defendant (Ct.App.2004), cert. Adams, to a 322 S.C. at right particular jury. no at 373. S.E.2d Short, 358 our
In State S.C. S.E.2d need prejudice court held that no actual be shown supreme deprivation of reversible error for establish on second jurors struck are seated properly strike where Ford, (holding jury. See also remedy a proper reversal of a new trial is granting in finding the trial court erred defendant violated where in striking jurors juror Batson certain and any challenged on jury). seated the second jurors
Three of the six struck Appellants properly from the first seated jury. were on the second Appel lants should have permitted been to strike all three of these jurors. One of these three served as an alternate and not did participate in deliberations. Any regard error with to this juror Ford, 444, 449, was harmless. State v. (Ct.App.1999) in re (“Any violation gards to a possible alternate an is harmless where deliberations.”). alternate needed for remaining jurors, Jurors were regular seated as members jury. second Because both were seated on the second jury participated in the deliberations that deter Appellants’ guilt, mined the error is reversible.5
CONCLUSION hold the trial legal We court committed trial error. The handling court’s of the first hearing in effect placed the burden on to of Appellants prove, the absence purposeful discrimination even Appellants after articulated race-neutral reasons for their strikes. Because struck properly were seated on the second which jury, found Appellants guilty, the error is reversible.
REVERSED.
HEARN, C.J., concurs. ANDERSON, J., in in concurring only separate result opinion.
ANDERSON, J. in in (concurring only separate result opinion).
I VOTE to of REVERSE the convictions and sentences Reggie Willie Cochran and (collectively, Appellants) James of error by judge committed the circuit in violat- error, Although prejudice prejudice we need not find to reverse this jury's guilty may against Appellant be in found verdict James for the injury personal property. offense of malicious The trial set court verdict, finding guilty testimony” aside "no of vandalism. 1712, 90 476 U.S. S.Ct. ing Kentucky, Batson v. L.Ed.2d degree burglary. of first
The were convicted Appellants convicted of assault Appellant James was Additionally, Appellants appeal of nature. battery high aggravated ten peremptory that six their finding from the trial court’s Appellants Kentucky. Although Batson v. challenges violated peremptory challenges, for their race-neutral reasons offered pretext were mere judge the trial found their reasons claim Appellants in racial discrimination. engage purposeful the State’s Batson motion. the trial erred judge granting judge is an hearing by a circuit The conduct a Batson Ofttimes, the cir- procedure. labyrinthine intricate and trial evidentiary conundrums emanat- presented cuit judge legal posture factual and ing analysis from the of the regard rulings The extant prospective juror. body law luculently reveals hearing a trial a Batson judge made deferential treatment to give that the court must appellate luxury has the appellate The judge on review. judge circuit and rumination whereas lengthy cogitation deliberation setting allowing lengthy in- a trial rules delay. BACKGROUND FACTUALIPROCEDURAL men, selection, African-American During jury Appellants, challenges on two black twenty peremptory used ten of their women, men, and five white women. three white hearing. a Batson requested strikes and opposed Appellants’ found the race-neutral hearing, judge At the trial the Batson *16 challenges for their peremptory offered Appellants reasons race. The jurors mere on the basis of pretext were exclude motion, quashed the first granted the Batson judge State’s one. jury, and drew second selection, the used four of its the second
During on a black man and three black challenges five peremptory and all four of the State’s strikes Appellants opposed women. this Batson hearing. hearing, At requested a Batson chal- peremptory reasons its State offered race-neutral reasons were not judge found the State’s the trial lenges Batson motion Appellants’ The trial denied pretextual. judge
327 impaneled the jury. The second jury comprised of jurors two of the six Appellants struck from the first jury, which the trial judge found violated These Batson. two in the participated deliberations and verdict.
STANDARD OF REVIEW In determining whether a exercised in viola- party strikes 79, 1712, tion of v. Kentucky, 476 U.S. 106 90 S.Ct.
L.Ed.2d 69
the appellate court must examine the
totality
the facts and circumstances in the record surround-
Shuler,
ing the strikes.
604,
344 S.C.
entitled to great deference and
be
appeal only
will
set aside on
if clearly erroneous. State v. Haigler,
(1999);
Adams,
(1996). A finding is it clearly erroneous if is not supported by Shuler, record. at 813. Where the record findings, does the trial court’s support findings Ford, must be overturned. State v. (1999).
LAW/ANALYSIS
Appellants contend the trial
their
judge
finding
erred
peremptory challenges violated Batson v. Kentucky, 476 U.S.
106 S.Ct.
328
BATSON HEARING
its
are to
Kentucky
progeny
of
v.
and
purposes
jury
a fair trial
his
right
the defendant’s
to
protect
to
right not
be excluded
venireperson’s
each
peers, protect
reasons,
discriminatory
preserve
jury
from
service
justice system by
fairness of the
public confidence
selection
jury
pro
to
seeking
eradicate discrimination
623,
(1999);
A held to Batson v. is trifurcat- hearing First, one strikes a member of party cognizable ed. when if hearing racial the circuit court must hold a Batson group, Shuler, one. 344 S.C. at opposing party requests 810; 90. In Haigler, at 515 S.E.2d at S.C. issue, preserve opposing party a Batson order raise after the before hearing must move for is selected but Jones, it is sworn. the jury must be held out of the hearing presence
This
Second, the
of the
panel
proponent
and the
venire.
Id.
strike,
rebut
of a Batson
successfully
presumption
violation,
a facially
explanation
must then offer
race-neutral
Haigler,
the strike.
I. Request The Strike & Batson The judge trial a must hold Batson when hearing members aof racial cognizable are group struck and the opposing party requests Tucker, 1, hearing. a v. State 334 512 99 S.C. S.E.2d (1999); Jones, 54, (1987). 293 358 S.C. S.E.2d 701 Any person, race, regardless of set forth may a Batson claim. 302, (1995). v. Chapman,
State
317 S.C.
Jones, 56-57, 293 at S.C. 358 at S.E.2d 702-03. Explanation
II. for the Strike The proponent of the strike must offer a facially race- neutral for the explanation Haigler, strike. State v. 334 S.C. (1999); Adams, 515 88 S.E.2d at S.C. 372; Smalls, v.
at
336 S.C.
793 (Ct.App.
1999).
explanation
clear,
The
need not be
reasonably specific,
e
or
it
legitimate;
only needs to
v.
be race-neutral. Stat
Easler,
1769, 131 (1995); L.Ed.2d 834 v. Casey, (Ct.App.1997). S.E.2d 169 While merely denying discrimi insufficient, natory motive is the proponent of the strike need only present Casey, race-neutral reasons. at 171-72. At this of the stage inquiry, the issue is Adams,
the facial validity explanation. supreme our court adopted procedure for the second of the Batson step analysis
delineated in Purkett v. Elem: an demand does not process
“The of this step second is It plausible.... even persuasive, that or explanation of the persuasiveness that not until the third step trial step which justification becomes relevant —the has opponent court determines whether At discrimination. proving purposeful carried his burden of (and justifications may fantastic that or stage, implausible will) dis- pretexts purposeful be be found to probably may judge trial choose say crimination. But to step quite 3 is superstitious reason'at silly disbelieve or judge terminate from that a must saying different or silly reason is the race-neutral inquiry step when superstitious. principle The latter violates racial motivation persuasion regarding ultimate burden of from, of the with, the opponent rests and never shifts *19 strike.”
Adams, 123-24, at 470 S.E.2d 371-72. Unless 322 S.C. at explana- is inherent proponent’s intent discriminatory v. be deemed race-neutral. State tion, the reason offered will Kearse, Tucker, v. (1999); Payton 1, 99 334 S.C. 512 S.E.2d (1998). 51, 329 S.C. 495 205 S.E.2d doctrine in rejected the dual motivation
South Carolina 59-60, 210. 495 S.E.2d at Payton, 329 S.C. at context. discriminatory approach whereby “tainted” adopted We will challenge of a explanation for the exercise for strike. nondiscriminatory explanations vitiate other Id.
A. Examples for Reasons Strike —Valid neu- 1. Demeanor. Demeanor can be racially considered a explanation. may venirepersons based tral Counsel Evatt, 105 Matthews v. See disposition. their demeanor and (4th Cir.1997) is consid- (holding the State allowed to F.3d 907 tone, race- demeanor, any other expression, er facial Wilder, v. State jurors); 306 S.C. striking neutral factors when (two 535, (1991) 413 black males struck because S.E.2d 323 v. late); 529, 405 825 Wright, 304 S.C. S.E.2d State they were (stricken (1991) juror had attitude demean- disinterested Smalls, 793, v. or); 797 State 336 S.C. discriminatory no intent inherent (Ct.App.1999) (finding striking appeared for who defense counsel’s explanation
331 ‘mean,’ to counsel in a “looking or ‘accusatory’ ‘stern’ manner”); Guess, v. State 318 S.C. S.E.2d (Ct.App.
1995) (declaring solicitor venireperson could strike demeanor during qualification; juror observed to be appeared “slow”). 2. State, Recipient prior Sumpter strike. See (1994) (“we
S.C.
3. Prior
service.
Recent
is a
prior
service
facially neutral reason for
exercising
peremptory strike.
Casey,
4. Prior criminal prior conviction. A criminal conviction is a neutral reason to Casey, strike. at 453 n. 2;
S.E.2d 172 n. see also Sumpter, 312 S.C. at (ruling solicitor’s explanation a black venireperson neutral racially prospective juror where had involvement). prior DUI Martinez, Possible criminal record. State v.
6. Prior prosecution by particular Solicitor’s office. (1994); v. Dyar, Sumpter,
8. Relationship with An attorney. attorney’s personal knowledge relationship juror of and is a prospective with exercising race-neutral reason for strike. State peremptory Ford, 59, (1999). v. 512 500 S.C. S.E.2d 9. Relationship pro-law with law or enforcement enforce- juror’s
ment A potential relationship attitude. a law with official, juror’s enforcement potential pro-law, or
enforcement
attitude,
á
exercising
peremptory
is a race-neutral reason for
Ford,
504;
v.
at
334 S.C.
strike.
cf.
(1991)
State’s
Richburg,
(noting
race-
juror
was anti-law enforcement was
explanation
neutral).
Knowledge
10.
association
defendant.
(1990).
Johnson,
243,
v.
302 S.C.
rea-
is a race-neutral
Unemployment
11. Unemployment.
Green,
94, 409
S.E.2d
son for
strike. State
legitimate
Place
It is
type
employment.
or
Ford,
jurors
334 S.C.
potential
employment.
their
504;
Adams,
2. Generalization about an group. Payton entire See v. Kearse, 51, 495 (1998) 329 S.C. S.E.2d 205 (ruling juror white because she awas “redneck” race- was valid thus, face; neutral reason on its facially was discrimina Batson; tory and violated term racially deroga “redneck” was tory applied exclusively race, term to members of white term stereotyped race subgroup any without evidence that each actually member was group possessed of bias or prejudice).
3. Potential juror who “shucked and jived” the micro- Tomlin, phone. 294, 299, See State 299 S.C. 384 S.E.2d (1989) (“The trial court inquire failed to into or comment on the prosecutor’s explanation that juror struck was because he ‘shucked jived.’ The use of this racial stereo- type is evidence the prosecutor’s subjective intent to dis- - Batson.”). criminate and violates the mandates of clearly Tomlin, stereotypes. Racial See at S.C. Juror, S.E.2d at 710 (noting prosecutor stated he struck forty-three-year-old woman, slow, black because she walked might trial; talked low and not be able withstand rather than inquiring legitimacy into explanation, this trial court education, suggested had lack of extremely sluggish be a “filler” would if seated on the jury; supreme court Batson). concluded use of such racial stereotypes violates Argument III. of Mere Pretext Once a race-neutral explanation given, opponent the strike must show the mere explanation pretext Short, engage purposeful racial discrimination. Adams, (1999); 511 S.E.2d 358 Pretext generally be established will demonstrating similarly situated member of another jury.
race was seated v. Haigler, Adams, (1999); *22 circumstances, explanation the race-neutral some 371. Under fundamentally implausible may be so given by proponent the determine, of the step at this third judge may the that a even without explanation pretext that mere analysis, Kearse, 329 S.C. Payton treatment. v. showing disparate of (1998). 51, 495 205 S.E.2d not auto- of a neutral reason does application
The uneven
if
finding
in a
of invidious discrimination
matically result
a
for
explanation
race-neutral
proponent provides
strike’s
173, 460
Kelley,
v.
319 S.C.
S.E.2d
inconsistency.
State
See
(1995)
neutral
racially
explana-
State
(finding
provided
368
similar charac-
why
tion for
Solicitor did
stricken).
prong, per-
Under this
teristics to one previously
v.
justification becomes relevant. Purkett
suasiveness of the
(1995).
765,
1769,
Elem,
A neutral reason can be pretext discrimination party purposeful created neutral standard in a discrimi allegedly racially his applying Easler, natory manner. State v. S.C. modified,
(Ct.App.1996), S.C. aff'd 279, Oglesby, S.C. when the supreme found Batson violation they patients struck three black women because were witness, was a defense but seated white woman doctor who The court held the patient who was a of the same doctor. the three black women State’s race-neutral reason for pretext was mere the fact that it light similarly- seated a situated white Id. woman.
The determination of whether the minimum
quantum
flexible,
produced
evidence has been
prong
under this
is
the trial court’s
turns on an
ruling
examination of the totality
record,
of the facts and
including
circumstances
credibility and demeanor of the strike’s
and the
proponent,
neutral,
plausibility of a
but
unpersuasive, reason.
otherwise
Casey,
In deciding whether the opponent a strike has carried the burden of persuasion, a court must undertake a sensitive inquiry into the circumstantial and direct evidence of intent.
Haigler, at 91. A strike must be examined in of the light circumstances under it which *23 exercised, an including examination of the explanations offered for other strikes. Id. After
IV. Batson Motion is Granted If the trial judge finds the opposing party has established a prima facie of purposeful case and discrimination the proponent of the strike has give failed to race-neutral reasons strikes, for the process contested the a selecting jury shall Jones, start over. See v. S.C. S.E.2d 701 (1987). Thus, “if the circuit juror court finds a been has Batson, struck in violation our has supreme court mandated that the circuit court strike the jury begin jury entire and the process selection de Heyward, novo.” State v. 594 S.E.2d (Ct.App.2004). Members the all jury persons
tainted and may placed who were struck be Jones, back in the venire. jury 293 S.C. at juror a stricken,
Once has been unconstitutionally the process juror selection relative to that is v. tainted. State Lewis, (2005). S.E.2d 515 If the trial court chooses to reseat the improperly juror, striking stricken the party may not use a peremptory juror strike to remove that Therefore, from the panel during second time. Id. the selection, subsequent may the trial the judge prohibit party juror who violated Batson from was who Id.; jury selection. during previous struck
improperly Franklin, v. Adams and its V. Progeny Adams, In State dire, its chal- peremptory the defense exercised
during voir requested upon prosecution seven Caucasians. lenges a Batson violation judge The trial found hearing. explanations on his that defense counsel’s based conclusion of the prospective of the strikes —that one two looked too much about the reporter, process, court knew juror and that another knew intelligent,” prospective “too su- appeal, neutral. our judge racially trial On —were judge court the trial erred a Batson preme finding ruled court concluded: violation. The neutral, reasons racially legitimate are explanations
These ac potential juror’s strikes. A exercising peremptory judge explana valid quaintance perfectly explana for the of a strike. The tion exercise juror “too viewed intelligent” tion one looked could be for the fact that the suspect primary explanation as but em potential for the strike was that given may known “too much” reporter have ployed judicial process. past precedents, Under our about racially these reasons neutral judge should have found an legitimate prosecution opportunity and allowed the new explanations pretextual. that the were Under show standard, judge also should have allowed Purkett explana third because the inquiry proceed step, facially race-neutral. given tions were *24 little very The contains information that would Record counsel chis to determine whether defense allow Court jurors to situat- similarly allowed be seated black who were jurors the lacks ed to white who were struck. Record the the trial did not allow judge this information because stage. the proceed to third Without hearing Record, in the trial information we conclude that more in finding erred in a Batson violation and quashing court jury. original 125, 470
Id. at S.E.2d Easler, 322 471 appeals, The court of S.C. modified, S.C. (Ct.App.1996), aff'd (1997), S.E.2d 617 found a Batson violation when defen dant man struck black because of but age, his seated a white man age within the same bracket. court This held the defen dant’s race-neutral reason for the black man striking was negated by the fact he venirepersons seated several white age bracket. same Id. Kearse,
In Payton (1998), all respondent exercised his strikes remove prospective jurors. Petitioner a Batson requested hear- ing. Respondent’s counsel offered following reason for striking Juror 18:
“The
number
she is
opinionated
known as
very
[a]
Honor,
person, your
expresses
who
herself.
if
We knew she
got on that jury
gone
she was not
budge
way
one
or the
[sic]
other, that
gone
get
way
she
her
or way.
was
no
That
[sic]
from
opinion
was our
what we had learned. Her family
has —Mr. Lanier has talked about the number of
people
trouble. She herself
any problems
has
had
but she
family
comes from a
that’s had some problems with the law
and she’s kind of what we refer to as a redneck variety, so
to speak,
and,
and that was the reason we struck her
as you
Honor,
know,
I
your
her family,
concerned with
wheth-
er
had any problems
she
me or the
with
law because some
family
members
her
have
might
problems law.”
Id. at
The for the purpose to the trial court remanded the matter court remand, co-defendant hearing. On conducting he not stated, time, did due to the candidly passage Prince jurors issue he had struck black exactly why remember notes, he #112 struck Juror but, thought to his referring in New York sheriffs she had cousins who were because two for the had a friend worked # 26 he who and Juror because he not Smith stated did Co-defendant department. sheriffs the jury. to enforcement on anyone connection law want 9,# for he whose friend worked Consequently, struck Juror for the sheriffs SLED, whose cousin worked and Juror # department. striking for four argued the stated reasons
Appellant did because the co-defendants jurors pretextual black were jurors had similar connections not strike three who white rea- judge concluded the stated enforcement. The trial law not striking jurors pretextual. the four black were sons record from supreme agreed finding The seated on jurors the three white who were voir dire indicated jurors to the four black similarly situated were jurors black had jury. from the While the who were struck who, trial, employed at the time of were relatives or friends enforcement, jurors or friends of white the relatives law enforcement. The employed no law white longer were relationship did the same to law enforcement jurors not have appellant The failed jurors. as the black court determined the co-defendants’ establishing meet his burden of stated Thus, jurors pretextual. the black were striking reasons findings supported by were judge’s the court ruled the the evidence and should be affirmed. Tucker, all of
In State v. by the State were used the six strikes used similarly situated against blacks. contended Appellant appellant ques- not struck. Specifically, were the su- Bonaparte. appeal, tioned of Juror On court articulated: preme he Bonaparte solicitor stated he struck Juror “dogmatic.” were Fur- argumentative and his answers
ther, brother’s murder had referred his Bonaparte Juror The solicitor prosecute. refusal to former solicitor’s *26 he juror stated was afraid this harbored some resentment the against solicitor’s office which affect delibera- might his The trial court agreed tions. that Bonaparte Juror The argumentative. judge pointed trial even out how the juror had argumentative been him. Appellant has to point juror failed out white to similarly situated Juror Furthermore, not Bonaparte who was struck. counsel may on venirepersons disposi- based their demeanor and Wilder, tion. State v.
Id. at
lenges
jurors struck
white. On
the thirteen
were
Twelve
hearing.
motion,
conducted a Batson
the trial court
State’s
with the strikes
he
most concerned
judge
noted was
counsel
#
and # 126. Defense
against
exercised
Jurors
at a local
he
# 95 “because she works
claimed
struck Juror
Dillon
longtime
a former
hardware store which
owned
exposed
pro-
are
Magistrate
employees
and his
County
regu-
personnel
enforcement
many
ideas since
law
prosecution
He struck
Id.
Id. at
According
judge,
had
Batson.
lant
violated
his
against prospec-
all but one of
strikes
appellant exercised
“
is
lot
jurors,
cumulative effect
worse
tive white
‘[t]he
”
it
basis.’
Id. at
than
on an individual
picture
looking
judge
The trial
quashed
ordered # during not strike second could Juror appellant # and # 126 were seated on the selection. Both Jurors jury. second his finding erred in appeal, alleged judge appellant
On
illuminated:
supreme
Batson. The
strikes violated
race-
case,
facially
In
were
appellant’s explanations
this
126, an
regard to Juror #
particular,
neutral.
with
with a
attorney’s
knowledge
relationship
personal
v.
is a race-neutral
reason. See State
juror
prospective
Adams,
(a
(1996)
it legitimate is to strike a or potential juror because she he a relationship has awith law enforcement official or because or she he pro-law is enforcement. Compare (1991) Richburg, (State’s explanation enforcement race- anti-law neutral).
Further, explanations these not fundamentally are so as to implausible constitute mere some pretext without showing disparate treatment. The State offered no pretext, by evidence of as required step three of the analysis. Although appellant exercised Adams/Purkett against jurors, most his strikes he white did not strike juror. every Instead, jurors white accept- some white were Further, ed appellant placed jury. and were on the first his, the fact that used most appellant challenges to strike sufficient, itself,- to establish purpose- Tucker, ful See discrimination. *28 (1999) (no
S.E.2d 99 Batson the violation where exercised all six its peremptory against strikes blacks race-neutral); explanations because the Casey, were (no 169 (Ct.App.1997) Batson violation where solicitor had neutral reasons for all five males). Thus, against strikes used this to record fails judge’s the trial of a support finding Batson violation. Accordingly, the trial erred in these judge ruling strikes Batson, violated his to appellant right was denied exercise peremptory challenges. his
Id. at 503-04. Haigler, the men, in appellant’s seated case included three white five The women, man, black women. one and three black deliberations, not jurors, participate alternate who did
two
chal-
exercised
prosecutor
black men. The
were
Appel-
man.
four black
and one white
lenges against
women
to
challenge
raised a Batson
Appellant
lant
man.
black
pro-
the
women as
to strike
black
decision
prosecutor’s
first
he struck the
jurors.
prosecutor
The
stated
spective
gone
had
young and
very
black
because she was
woman
the second black woman
He struck
appellant.
school with
He
the fourth
struck
shoplifting
because
had
conviction.
she
meant she
unemployed,
she
which
black woman because
was
community.
judge
The
had
stake in
an insufficient
reasons for the strikes.
all those were race-neutral
ruled
woman, Tammy
third
he struck the
black
prosecutor declared
prior jury
is that she had
reason
Berry,
two reasons: “One
a not
sexual conduct
came back with
service
a criminal
main
main reason. The
verdict. That wasn’t the
guilty
here knows
is a
witness
Larry
key
reason was that
Smith who
high
very
is a
but she is
says
good person
this
she
person,
and he didn’t feel
opinionated
strung,
type person,
critical
jurors,
other
be
like
deliberate well with the
would
she could
(footnote
at-627,
Appellant accepted had Gerald prosecutor was because the pretextual Smith, man, had a not verdict guilty a white who also returned jury eighteen in a case. had sat on criminal criminal Smith earlier, thought he he remembered twenty years not shooting guilty. case was verdict the domestic earlier, and years five Berry had sat on a criminal in the rape that the case definitely remembered verdict reason argued given not the second guilty. Appellant Berry up did not stand prosecutor pretextual say Larry she knew Williams when venire during voir dire law enforcement they members asked whether knew were judge The trial denied officers involved in case. motion, reasons were ruling prosecutor’s both pretextual. not racially neutral and appellant court concluded did appeal, supreme
On engaged pur- proving prosecutor his burden in carry *29 poseful during jury process. discrimination selection court found: for prosecutor’s primary striking Berry
[T]he
reason
was
because the lead
in appellant’s
detective
case knew her to be
person
high-strung,
polarizing
critical
who would be
force
the jury.
on
That was a race-neutral reason for the
strike.
State v.
Richburg,
S.C.
1996) (trooper’s personal venirepersons contact with and they may belief may hold anti-law enforcement bias be race- strike). neutral reason during for failure to reveal Berry’s voir dire she acquainted was the lead detective is irrelevant the Batson which focuses analysis, upon party’s knowledge potential juror and reason for exer cising peremptory challenge.
... do not the prosecutor’s believe second reason [W]e First, fundamentally implausible pretextual. Berry was or and were not similarly Berry Smith situated had on a jury definitely served criminal five earlier and years verdict, remembered the while Smith had served on jury criminal some earlier twenty years and unsure of Second, the verdict. importantly, more circum the jury process prosecutor stances of selection indicate the did not potential racially motivated reasons. the prosecutor jurors,
While
struck four black prospective
he
four
people
regular jury
seated
black
and two
jurors.
black alternate
See
v. Dyar,
[317
(1994) (composition
S.E.2d 603
is one
jury panel
factor
]
Guess,
analysis);
consider
State v.
(Ct.App.1995)
Similarly, no the prosecu- record contains indication tor’s stated the other three black reasons worn- *30 had a appellant, too and one young one knew
en—that
conviction,
moti
unemployed
and one was
criminal
—were
Ford, [334
discrimination. See State v.
by purposeful
vated
(lack
(1999)
59,
place
or
employment
512
500
]
S.E.2d
S.C.
be
reason for
may
race-neutral
type
employment
or
Johnson,
243,
strike);
302
Id. Smalls, (Ct.App. 519 793 In State S.C. S.E.2d 1999), of ten strikes appellant peremptory the used nine to The State jurors posited from the venire. remove the in an objection, the defense utilized strikes alleging then intentionally manner. The trial court discriminatory defense counsel to race-neutral reasons the give asked strikes, “A responded, just looking to which she lot of this was me seeing at don’t look at or potential jurors they the —if mean, look.” at if look with a stern Id. 519 S.E.2d they explained at 794. further that she 519 S.E.2d She away glare those tended to look or were persons believed who and stated that such “have al open-minded, veniremen I on made minds don’t want them ready up, their counsel’s stated judge Id. While the trial admitted jury.” reasonable,” he “possibly could be determined it explanation result, As a the court sufficiently was not race-neutral. Id. to pool, returned the and a new was drawn panel originally contained four members panel and sworn. The new by the struck defense. court of determined: appeal, appeals
On in the discriminatory discern no intent inherent de- We therefore find reason assert- explanation. fendant’s We strikes, by ed Smalls for his “mean,” either or in a “stern” refusing looking look were race-neutral, manner, or “accusatory” if facially even Tucker, See perhaps suspect. [334 S.C. (1999) ]; Wilder, (counsel (1991) may strike venire persons based their disposition). erred, therefore,
demeanor and
trial court
in failing to
require
carry
present
its burden
evidence of
as
pretext
prescribed
step three of the
analysis.
See Ford at
S.E.2d at 504
Adams/Purkett
(finding opponent of strikes
to offer
failed
evidence of
Adams,
pretext
required by
three of
step
analysis);
at
(stating
that “[u]nder
circumstances,
some
explanation given by
race-neutral
may
proponent
be so fundamentally implausible that the
determine,
may
judge
analysis,
the third
step
*31
explanation
pretext”)
added);
the
was
(emphasis
mere
Purkett,
768,
at
U.S.
In State v.
Wright,
(Ct.App.
On appeal, Wright by claimed the circuit court erred allow- ing peremptory challenges racially the State to exercise in a in discriminatory manner violation of Batson. The court of appeals held: review, the standard of our
Viewing light record Al- clearly erroneous. court’s conclusion was not circuit similarly are 29 and Juror Juror though recognize we accents, the State they foreign have situated that both command of them their observable distinguished their perceived as well as what State English language, consid- race-neutral proper to be. These were occupations (4th Evatt, erations. See Matthews 105 F.3d tone, Cir.1997) consider is allowed to (holding State race-neutral demeanor, any and other expression, facial Thus, jurors). the circuit court did striking factors when not err.
Id. at at 542. 579 S.E.2d Flynn, (Ct.App.2006), State 627 S.E.2d raised a defense counsel qualified,
after the
all its
that the
used
strikes
based on
fact
challenge
presented
jury.
black females from
remove
As to Juror
the State
its
strikes.
explanations
“
that as a
a Head
director.
I view
asserted:
is
Start
‘[She]
”
Id.
reason
I struck her.’
job
why
and that’s the
very liberal
took
to the
exception
counsel
S.E.2d 538. finding the trial court erred in not Flynn argued
On appeal,
Batson in
its
regard
the State
treatment
Juror
violated
a
stereotype
advanced
racial
He asserts
determined:
justify striking
appeals
21. The court of
Juror
it
employment,
that due to her
believed
State asserted
“[T]he
offered no evidence other
Flynn
‘liberal.’ As
has
Juror
motivation,
of racial
we find
conclusory
than
assertion
trial court did not
in
err
find a
failing to
Batson violation.”
Id. at
VI. Batson Violation/Remedy Any from the deviation mandated and Batson recognized procedure is peccadillo, NOT a mere but an egregious is judicial corrigendum. error, Notwithstanding perti- the more nent query whether reversal is obligatory.
State v. Adams in regard edifies to the for a remedy violation:
Nevertheless, we do not reverse based on this error. We yet have not ruled on the a trial proper remedy for judge’s error in finding Batson violation quashing jury.
This situation is in fundamentally different from one which the trial judge improperly upholds racially discriminatory peremptory challenges. When the trial court improperly upholds challenges, such there has been a of the violation jurors’ stricken Fourteenth protection Amendment equal if rights. Additionally, the prosecution party is the improp- erly exercising peremptory the trial challenges that judge upholds, the defendant has been to a fair right denied However, where, impartial jury peers. here, his trial judge improperly quashes juror’s no panel, equal An protection rights have been appellate violated. determination that judge erred a Batson finding viola- occurred, tion means the No obvious: Batson violation was, therefore, there no anyone’s protection denial of equal Moreover, rights. see no way we which defendant’s fair rights were violated. A defendant has no right any Caldwell, trial by particular jury. E.g., State v. When the trial judge
quashed panel, first selected parties jury. new Adams has voiced no about complaints jury. the new We find no prejudice judge’s resulted from the error.
Id. at 470 S.E.2d 372-73. Adams, Unlike in in the Appellants instant case have about the complained jury. new Short, after court
ruling finding the trial erred a Batson violation and the first quashing jury, supreme inculcated:
348 ruling, the trial finding judge’s
After
error
find
of
to
reversible error
went on
Appeals
Court
challenges against
right
peremptory
to exercise
Short’s
found no
Appeals
him. The Court of
denied
two
no
required
of
because there was
showing
prejudice
degree
certainty
of
whether
way
any
to determine with
jury was
right
impartial
to a fair
an
Short’s
335,
489
abridged. 327 S.C.
S.E.2d
error,
Appeals adopted
the Court of
reversible
finding
(9th
96
States v.
1132
Annigoni,
of United
F.3d
analysis
re
Cir.1996),
no
of
to
showing
prejudice
actual
requiring
to
statutory right
of the federal
infringement
verse
rule is
challenge.
This
consistent
peremptory
exercise
See,
courts as
majority
that of a clear
state
well.
State,
Mason v.
e.g.,
(Ala.Crim.App.1988);
We now overrule Plath and adopt majority rule that no showing of actual is find prejudice required to reversible error impairment denial or of the right peremp a tory challenge. We note that is distinguishable Plath from our other decisions in the discussing “prejudice” denial of a peremptory challenge where the actually issue turned on the complaining party whether had he established was denied the right to exercise a peremptory challenge. established, Where such a denial implicitly applied we majority rule discussed above and reversed without a Anderson, of actual showing prejudice. See v. State 276 578, (1981) 281 111 S.C. (prejudice wrongfully limiting number of peremptory challenges where defendant Jenkins, all permitted); 544, exercised Moore v. 304 S.C. (1991) (failure
land,
(1973) (no
prejudice
S.C.
Short,
(footnote
333 S.C.
Thereafter, Ford, in State v. S.C. S.E.2d 500 supreme court explicated: if argues, judge even the trial erred in finding violation, Batson the error was harmless because appellant failed impartial. to show second was not This recently precise Court addressed this issue. See State v.
Short,
(1999) (announcing
Id. (“no showing 301, 309, (Ct.App.1999) for the find reversible error is prejudice required actual challenge.”); to a right or impairment denial Ford, (Ct.App.1999) cf. regards possible to a violation in (noting any an alternate was not needed harmless where alternate deliberations). (Ct.App.2004), S.E.2d 486 Rayfield, *35 (March 2005), the instructive. After granted rt. ce selection, hearing. for a Batson the State moved jury initial jury The first was The court found a Batson violation. trial jury ensuing followed. The and a of the quashed redraw and challenge, significantly, in no Batson redraw resulted the initial by during counsel none the struck defense jury. appeal, the seated on second On jury selection were in State’s granting court erred argued trial Rayfield held: appeals motion. The court of Rayfield constrained to conclude that We but we are agree, by the trial court’s not ultimately legally prejudiced was error. the State’s grant
... It error for the trial court Batson motion. to the pursuant find no reversible error
We nevertheless
Adams,
court
of State
supreme
precedent
Adams,
In
the trial court erred
S.E.2d at 504
(holding
reversal
granting
a new
trial is a proper remedy where the trial court
erred
finding defendant
violated Batson in
certain jurors
and any challenged juror was seated on the
jury).
second
Id. at
VII. The Extant Record Analyzing the first composition pattern strikes, I come the ineluctable conclusion that judge did properly conduct the Batson hearing.
erroneous procedure in the utilized first Batson hearing exacerbated in the selection jury, second man- thereby dating a reversal.
The record is any palliative devoid of factor mitigating against reversal.
I VOTE to REVERSE. DOE, Respondents,
Jane & John *36 (Whose ROE; Mary M.; identity Richard John Roe true unknown); Baby Boy Jay, A Minor Under (7) Age Years, Defendants, Seven Appellant. Of Whom Roe Richard is the No. 4119. Appeals
Court of of South Carolina. 9,May
Heard 2006. June
Decided 2006.
Rehearing June Denied