*1 STATE, Respondent GILL, Appellant. v. Michael Jerrod (460 (2d) 412) Appeals Court of *2 Atty. Joseph T. Stacey Deputy Daniel Atty. Chief Chief De- Savitz, III, Appellate L. both of South Carolina Office Columbia, fense, appellant. for Medlock, Atty. T. Travis Gen. Deputy Gen. Attorney Chief Zelenka, M. Asst. Gen. Harold Atty. Donald J. Senior Smith, Coombs, Jr., Rakale Buchanan Atty. and Asst. Gen. York, Thomas E. Columbia; Pope, respon- and Solicitor dent. 7, 1995.
Heard Mar. 17, 1995; 28, 1995. Reh. Den. July Aug. Decided Judge: Chief Howell, his convictions for distribution of
Michael Gill from appeals crack cocaine within proxim- crack cocaine and distribution of of a We affirm. ity park.
I. Law Enforcement the South Carolina November (SLED) Hill Police De- with the Rock working Division was drugs. distribution of On street-level partment, investigating a fitted with agent an undercover SLED November Hill by outside a Rock store approached transmitter was body as Mike. The told Mike she identifying agent a man himself drugs, a to get “something” meaning friend looking — friend was in Mike asked jail. but she discovered her re- agent “that to which the thing,” if she wanted agent the street to did. Mike then walked across she sponded and, her using in her car agent got the side of a house. The to the Rock Hill transmitter, po- a of Mike relayed description returned team. Mike up lice officers surveillance making car. He minutes, agent’s three and into got within two to off-white, rock- containing a two plastic bag handed the agent bag gave $20 The took the and Mike agent like substances. sale, and Mike left after talking bill. The two continued the time he ten minutes from eight to approximately vehicle revealed the sub- testing her. Subsequent first approached to be crack cocaine. stance
As the drove she agent away again relayed descrip- Mike’s tion and his destination to the surveillance probable team. Within one minute after the approximately SLED agent drove two Rock Hill away, police pulled cars in front of the just house the undercover had described. agent Two officers approached three black males in front of the standing house. Only one of the men matched the agent’s description of Mike. identification; officers asked each man for the man match- ing Mike’s description produced identification indicating name his was Michael Gill. Because of the ongoing nature of the investigation, Gill was not arrested until eight months trial, later. At the undercover agent unequivocally identified Gill as the from whom she person bought Gill testi- drugs. trial, fied at the presented alibi defense.
Gill raises First, two issues on Gill appeal. contends State exercised one of its strikes in a racially dis- Second, manner. criminatory Gill contends the trial court erred failing require produce re- summary port prepared by the for trial. police preparation
II. selection, During jury the State exercised three peremp- tory challenges, against one a black female and against two white objected males. Gill to the State’s against strike juror, black female requested hearing to determine the propriety strike under Batson v. Kentucky, 106 S.Ct. The assistant solicitor explained strike:
She reasons, honor, was struck for two your two and a first, half actually. The she did not want to serve on the jury time, this she excuse, asked for I hardship and did- n’t think that would make her a good juror, she would be *4 more reluctant and I jurors wanted who were enthusias- tic about service and not someone who was worried about something somewhere else. happening That’s the first reason. The second reason—. ... The other reason is Mr. Brown informed me that that lived juror on the same street as the defendant and a possibility it’s that she may have known him. She not have might first, known him at but she might jury have sat box half through him and that suddenly trial and then realized she knew have caused might problems.1 any The trial court asked the solicitor whether there were a hard- jury other selected for who had asked for people sir, The ship replied, your excuse. The solicitor “No honor. it.”2 notes don’t reflect it—Mr. Grant’s don’t reflect As [notes] reason, attorney to the State’s second Gill’s informed the court that Gillat one had lived on the same street as the point juror, but that he had not lived in the area for at least two years. neutral, The trial court found the racially State’s two reasons but that if had asked for a any sitting jurors stated also it would look at the matter hardship, again.
The trial court denied defense counsel’s to view the request solicitor’s notes taken venire to determine whether during any However, other had counsel jurors requested hardship. did review the record with the court and determined reporter juror that a white female had also but requested hardship, was not excused the State. The assistant solicitor offered trial that he the other solicitor’snotes and informed the court was unaware that the white requested hardship. had the trial court re- expressed While concern with State’s information, liance he denied the incomplete nonetheless racially Batson motion because the State’s second reason was neutral. prohibits
It is well established Batson State in a dis exercising peremptory racially from its strikes If a a Batson criminatory party objec manner. raises tion, the trial court should hold a to determine hearing whether the strikes were exercised. properly Chapman, State neu the strikes must then
party exercising provide tral for the use of the strikes. Unless the discrimi inherent in the the reason of natory explanation, intent is Green, race neutral. State v. fered will be deemed unemployed. as a “half reason” that the was 1 The State also offered isn’t, reason, commented, it either so As to that the trial court “Well dropped work.” The then its reliance on the don’t —half reasons don’t proffered “half reason.” present apparently when 2 The solicitor who tried the case was assistant prepared by jury pool qualified, from a list another solici and worked jury. selecting the tor when *5 (2d) denied, 962, 503 112 S.Ct. (1991), 409 785 cert. U.S. S.E. (1992). (2d) need explanation 118 L.Ed. 212 While cause, a challenge to the level for justifying not rise a dis by merely denying reason cannot be established neutral Tomlin, 384 S.E. motive. State v. S.C. criminatory (1989). the case to must be related to explanation v. tried, clear, legitimate. reasonably specific, be (1991).3 If the prof Grandy, valid, party bears facially challenging fered reason is and that merely pretext, that the reason is showing burden v. Oglesby, race was the reason for strike. See State S.C.
Here, that the is hardship explanation Gill contends State’s a white who because the State did strike pretext, Gill, requested hardship exemption. According also had a Batson violation without showing pretext this establishes State, to the other reason or the other regard proffered disagree. circumstances the strike. We surrounding whether the ex- Preliminarily, question hardship we State’s in fact The burden is on the planation pretextual. party is allegedly the strike to that the solicitor’s challenging prove it in a applied neutral reason was because was not pretextual Sumpter neutral manner. (1994).Here, the white to be juror apparently requested her ill. The rea- jury duty
excused from husband was exemption compelling, son for her is and does not requested indicate to serve on the How- necessarily unwillingness jury. ever, in the record indicates the black nothing why If her reason was less or sought exemption. legitimate it in- juror, than that of the white would be more compelling note, however, recently held, Supreme 3 We the United States Court per discrimination, curiam opinion, prima to rebut a facie case of neutral; proffered facially reason must need not be — Elem, —, Purkett v. “persuasive, plausible.” or even U.S. 115 S.Ct. implausible While the Court did note or fantas explanations probably pretexts purposeful tic will be found to be discrimi of the Batson step procedure, apparently any explanation nation at the third inherently prima for a strike that is not racial is sufficient to rebut facie adopt case. It is uncertain whether our Court will this more lenient Grandy standard, will determine that the articulated in stricter standard required Equal under the Protection clause of the South Carolina Constitu Const, I, § tion. art. 3. and reluctance to serve on dicative her disinterestedness case, her but not the white jury. striking striking In such a Batson violation. See State v. juror might not constitute *6 (2d) (1994),reh’ggranted 317 603 Dyar, (Sept. S.C. S.E. 1994)(where a had crimi 8, juror the State struck black who with criminal charges juror nal but did not strike a white the charges, charges no Batson violation because against juror by handled the office of solicitor involved black were Dyar, in the case and no evidence was against presented against juror that the the white had been showing charges solicitor); Wilder, 535, 306 by handled 413 (2d) (1991) (no Batson violation where solicitor ex S.E. late cused two because were but sat a white jurors they black late, juror who also because the white juror expressed was desire to on the jury). serve
Nonetheless, we will assume Gillhas estab adequately pretextual; that the excuse was how hardship lished our ever, assumption this does not end addi inquiry. an tion to her State also struck request exemption, on the Gill lived same street as previously black near the has juror. who lived defendant Striking held use v. been to be a valid of a strike. State peremptory Johnson, Thus, 302 S.C. is question pretextual explana before this Court whether for a strike a Batson peremptory necessarily tion constitutes valid, race-neutral for the strike violation when a Martinez, it is also conclude does not. See State v. offered. We (1987) (no Batson violation one two for its exercise proffered where of the State’s reasons invalid, was but reason peremptory remaining strikes valid). in any issue Batson claim is
The determinative circumstances, of the whether, light totality discrimination. invidious purposeful, party engaged it estab protection jurisprudence In other areas of equal an action motivated in part impermissible lished that an be if the same action would necessarily reason will not invalid impermissible in the absence of the motiva have been taken v. City Doyle, tion. See Mt. Sch. Bd. Healthy of Educ. (1977); see United also S.Ct. (4th 1994)(a McMillon, 948, 952, n. 3 v. 14 F. Cir. States automatically does not result in a showing pretext finding discrimination; show, must all rele- “through defendant circumstances, exer- prosecutor intentionally vant concerns.”). cised his strike because of racial it is the trial court which must determine Ultimately, whether a has discrimina party engaged purposeful An tion the exercise of strikes. in through inferred from the to discriminatory purpose may vidious be facts; however, trial tality finding of the relevant court’s turn stage largely credibility. this will on evaluation of Green, As the United States Court has the decisive recognized, often will whether the question proffered explanation be should be believed:
There will seldom much bearing evidence issue, and the best evidence often will be the demeanor of who with the attorney challenge. exercises As *7 juror, state of mind of a evaluation of the prosecutor’s state of mind based on demeanor and lies credibility “pe- culiarly within trial judge’s province.” York, Hernandez v. New 500 111 114 U.S. S.Ct. (2d) (1991) (citations omitted). L.Ed. Whether a Batson violation has occurred must be determined by examining of the in totality facts and circumstances the record. Riddle v. — — —, (1994), denied, S.C. S.E. cert. U.S. —, 518, 130 115S.Ct. L.Ed.
Here, the trial court expressed some concern about the solicitor, State’s reliance on notes prepared by another but the court that it did state did not believe the infor mation about the white was intentionally omitted.4The trial court specifically did not rule on the of the hard validity ship explanation, relying instead on the second reason given However, for the strike. the statements of the court make it expressed by course, 4 Weshare some concerns the trial court. Of gathered through State is entitled to consider information other sources when selecting jury. However, gathered presented if the information is in a dis (for criminatory example, person present during qualifica manner if the only jurors), tion of the venire makes notes about black decisions to strike based on that information will not be sustained. Intentional discrimination protected by laundering through cannot be the discrimination an absent party. clear that the court did not engaged believe in pur discrimination. poseful credibility This determination trial court is entitled to great deference on Hernan appeal. dez; Green, State v. 306 S.C. at at 788.
Moreover, composition jury panel supports the determination that the State did exercise its peremptory strikes manner. discriminatory See Johnson, (1990)(com State v. position of jury panel is a factor that bemay considered when determining whether a party engaged dis purposeful crimination). case, In this jury composed eight whites and four blacks. The State used three of its strikes, and three seated black before ex jurors the strike at ercising Therefore, issue in this case. considering all the relevant circumstances, facts and with agree we trial court’s conclusionthat the State’s of its exercise peremp tory strikes did not violate Batson. that,
We are aware first blush, our opinion here seems inconsistent that of with our Court in Tomlin, In Tomlin, the State offered valid reasons for the strike of a male, black also justified but the strike the juror “shucked jived” while approaching microphone. The held Supreme Court the “shucked and jived” statement evi denced discriminate,” the State’s intent to “subjective thus constituted Batson Id. violation. We do not read Tom lin as an absolute that an creating rule invalid a peremptory strike taints valid any reason offered for the strike, and Rather, thus amounts to a se Batson per violation. we standing that, understand Tomlin as for the if proposition the invalid reason is so racial or patently derogatory na *8 ture, may the court view the invalid reason as the controlling reason for the strike. other of Tomlin Any reading would be inconsistent Equal with established Protection jurisprudence. See Mt. Healthy City 274, Sch. Bd. v. U.S. Doyle, of Educ. (1977); 97 S.Ct. L.Ed. v. United States McMil 1994). lon, (4th 948,952, 14 P. n. 3 Cir.
III. Gill also error trial to assigns require to the court’s refusal the the summary prepared police disclosure of report by during This arose Gill’s of the State’s case. issue
preparation he narcotics During of Detective Barnhill. cross-examination (via transaction, listening Barnhill was vehicle support transmitter) the the under- body conversation between de- clothing He had received Mike’s agent cover and “Mike.” had twice, agent departed and after undercover scription scene, and asked for Detective Barnhill Mike approached the cross-examina- identification. The pertinent portion his tion was as follows:
Q: any make field notes?” you “Did “No, A: ma-am.” night, on that
Q: “So, have no notes of what occurred you you?” aren’t you’re just relying your memory, “Memory summary.” A: and we do have a report, I mean the inci- Q: report being report, “The the arrest report?” dent
A: “The summary.”
Q: summary?” “The
A: huh.” “Uh be, that Barnhill?”
Q: summary “What would Officer summary, A: a case ma’am.” “Just office?” Q: “Did turn that over to solicitor’s you “Yes, A: ma’am.” had not turned argued summary
At trial been Gill discovery to his request. over to the defense Gill pursuant material summary the information was contended he The State con- report. therefore was entitled to subject was not to disclosure and report tended in it. The trial court absolutely nothing exculpatory” “there is and denied Gill’smotion for a did not disclosure require mistrial. argues
On he was entitled examine appeal, Gill it was used the wit summary being report argument his recollection. Gill’s present ness to refresh trial, however, based on Rule SCRCrimP apparently at 1194, Maryland, v. 83 S.Ct. L.Ed. Brady he recollec present Because did not raise trial, we not address it on argument ap tion refreshed do White, (1993); See v. 428 S.E. State peal. (1974).To Meyers, *9 extent that can argument appeal Gill’s be viewed as also discovery the raised at we raising argument trial, find no error. that,
Our rules of criminal procedure require upon re by defendant, quest State allow the defendant to or inspect copy any papers documents State’s or control which are possession material to prepa 5(a)(1)(C), ration of his defense. Rule However, SCRCrimP. Rule 5 excludes from this specifically requirement disclosure “reports, memoranda, or other internal prosecution docu ments made . . . prosecution agents in connection with or of the investigation prosecution 5(a)(2), case.” Rule SCRCrimP. The summary report the Rock prepared by Hill officers for the police solicitor’s use in prosecuting Thus, case. the summary was an internal docu prosecution ment and subject discovery.
Likewise, the State had no obligation under Brady turn Brady report. over summary requires state disclose evidence in its possession which is favor able to the accused and material either to guilt or punishment, including impeachment evidence. Bryant, 458, 415 S.E. evi Impeachment exculpatory dence is if only that, material there is reasonable probability had the been defense, evidence disclosed to the the result of — the proceeding would have been different. Clark v. —, Here, the undercover agent unequivocally Gill, identified and the summary report was consistent all testimony with Be officers involved. cause the summary report would have bolstered tes officers, of the there no timony is reasonable probability the result of the trial been different, would have and there Id. was no to disclose the obligation report. reasons, for the
Accordingly, foregoing decision trial court hereby
Affirmed.
Connor, J., concurs. J., concurs and dissents in part part sepa-
Cureton, rate opinion. Judge (concurring and dissenting):
Cureton,
majority’s
I
with the
conclu-
agree
I
out that
Initially, point
*10
juror
for
the black
striking
explanation
that the solicitor’s
sion
same street
once lived on the
thought
he
she and Gill
because
that this
however,
racially
I
not agree,
neutral. do
racially
is
of the black
to sustain the strike
reason is sufficient
neutral
for
peremptory
reason
the same
if the solicitor’ssecond
juror
As I
(the
is found
hardship
pretextual.
explanation)
strike
record, the
concluded that inasmuch as
judge
trial
read the
neutral rea-
racially
struck the black
the solicitor
Gill),
no need
(lived
as
there was
to
on the same street
son
Additionally, the
hardship explanation.1
analyze
further
of the
validity
hardship
examine
do not
to
parties
attempt
the so-
briefs,
argue
in their
but
instead whether
explanation
sustains the strike
racially
neutral
licitor’s
Thus,
hardship explanation.2
of
juror regardless
black
whether the
neutral ex-
issue before us is
sole Batson
strike of the
sufficient to sustain
is
planation
fact,
was,
pre-
if
in
hardship explanation
even the
black
infirm.
constitutionally
textual
in
selection
jury
to eliminate racial discrimination
Efforts
system.
years ago,
in our
More than 100
judicial
are not novel
held that racial discrimina-
States
Court
Supreme
the United
Equal
selection offends the
Protec-
jury
the State
tion
See, e.g.,
United States Constitution.
tion Clause
303,
100 U.S.
use the peremptory challenge. See E. Had- generally Amy dad, Constitutional Law—Fourteenth to Right Amendment Equal Protection —Criminal Racially Discrimi Defendant’s natory Exercise Peremptory Challenges, Tenn. L. Rev. of (1992).Swain, man, a black his challenged conviction for raping young white female on the ground blacks had been Swain, excluded unconstitutionally from his jury. 203, 85 atU.S. at 826. argued S.Ct. Swain first that the State’s of use to peremptory challenges strike all black from people jury the the violated Protection Id. at Equal Clause. S.Ct. at 827. also argued systematic He that the of practice excluding jurors black is “invidious discrimination for which is insufficient Id. at peremptory system justification.” at 837. rejected S.Ct. The Court to attempt Swain’s estab an lish claim equal protection on the premised solely pattern jury case, of strikes in his own proof held instead that of systematic exclusion of African-Americans of through use of peremptories period over time establish such a vio might may pretextual.” argues, however, reason be It the court should consider sur- rounding determining truly circumstances an whether articulated reason is pretextual. The State continues: case, Appellant’s more than one reason why there the assistant juror] good juror Ap- [the solicitor felt that black would not make a for pellant’s appears juror] trial. if [the It that even black had not made the request, hardship against the State would still exercised a strike have apprehension may Appellant her because of their that she have known when he lived on her street. standard 224-226,85 at 838-839.The Swain Id. at S.Ct. lation. violation, requiring Amendment for a Fourteenth proving cases, many over prosecutor discrimination systematic Thus, satisfy.3 defendants to impossible soon proved chal prosecutors using peremptory of continuing practice juries blacks from caused strike all most lenges in 1986 to re-examine United States Court Supreme Kentucky, of in Batson proof Swain standard S.Ct. evidentiary rejected Court Batson Swain’s The on “a bur placed crippling formulation it defendants The Court reasoned 92, 106 den Id. at S.Ct. at 1721. proof.” of jury racial selection harms discrimination community by the entire under trial, on but also defendant the fairness our system jus confidence in mining public 87, 106 at at 1718.It held that the Protec Equal tice. Id. S.Ct. prohibits Amendment a state tion Clause of Fourteenth chal using peremptory in a criminal case from prosecutor solely based on their race potential jurors to strike lenges jurors group that African-American as assumption against the state’s case would not consider impartially Id. at African-American defendant. at S.Ct. 1719. Batson illustrate that the ultimate policies underlying discriminatory jury practices. selection goal is eliminate for the Justice Powell announced Writing majority, partic- A may proven. in which discrimination prima ular manner “by made out show- purposeful facie case of discrimination an infer- relevant facts rise to ing totality gives Id. S.Ct. at discriminatory purpose.”4 ence of *12 Davis, 229, 239-242, 426 96 Washington v. U.S. S.Ct. (citing (1976)). (2d) 2047-2049, 597 out the 2040, making case, also noted that the defendant is prima facie the Court 3 in Swain stringent proof adopted required the defendant to burden of “when, previous why, to one show and under what circumstances in cases this Swain, 226, Negroes.” at prosecutor used strikes to remove 380 U.S. his 85 at S.Ct. 839. 4 concerning recent Carolina decision the establishment In the most South noted, a Batson case, opinion, requesting prima a our “[i]n facie the Court striking hearing prima sets out a facie case of discrimination ... effect gender any juror raise of race and/or based discrimina can the inference — (2d) (1995). —, 317, 320 Chapman, v. —, tion.” State 454 S.E.
297 entitled to rely the fact peremptory challenges “per mit discriminate.” those to discriminate who are of a mind to 96, 106 Id. at at S.Ct. 1723 v. (quoting Avery Georgia, 559, 73 891, (1953)); Jones, 97 S.Ct. L.Ed. 1244 see also State v. (2d) (1987). 54, 358 293 S.C. S.E.
After the
a
case,
defendant demonstrates
facie
prima
the prosecutor
burden shifts to
neutral
show
rea
Batson,
for the
sons
exercise of his strikes.
In determining whether the explanation is adequate, (1) trial judge should consider whether the reasons are: neu (2) (3) tral, tried, related to the case to be reasonably clear and (4) specific, legitimate. and Id. 384 S.E. at 709. Because the trial judge’s findings discrimination regarding purposeful largely rest an evaluation upon of the credibility attor ney making strikes, give we findings great those defer However, ence. where the record not support does the attor ney’s stated reason for making strike, trial court’s findings must Patterson, be overturned. State v. 307 S.C. 414 S.E. if
Even the party whose strikes are challenged articulates strikes, legitimate reasons the party challenging may strikes establish that the explanations are mere pre- text. A neutral facially rejected reason will as a be sham where pretext the reason in a applied neutral manner. may This an accomplished by showing inconsistent applica- tion similarly reason as purported relates situated ju- Grate, (1992) rors. See State v. (solicitor males, struck two black ages they because he young however, were desired older jury; 21-year- seated, old white female was demonstrating purported Adams, reason was a see also pretext); (1992) (black struck male because docket placed clerk marks question name, beside his white male yet with marks his question empaneled); beside name was (1989)(three Oglesby,298 S.C. black fe- stricken males were of the defense they patients wit- *13 however, doctor; a white female who ness solicitor allowed seated). Thus, of the same doctor to be was also a patient for must across applied equally a strike explanation given the board. can challenging
Even strikes party where characteristics show that white certain venirepersons having with those venireperson were seated and African-American excluded, there same characteristics is no se Batson viola per a pre tion the solicitor nevertheless avoid of may finding text if he can an additional reason provide nondiscriminatory venireperson for the white and African-American dif treating ferently. Sumpter v. S.E. See on agree I with the burden is majority While prove allegedly the defense to the solicitor’s neutral reason manner, pretext applied was a because it was not in neutral it I think is met once is demonstrated that the this burden had the as juror disqualification white who was seated same (defendant juror. Id. 439 S.E. at 844 unseated black did not burden of reasons were satisfy proving solicitor’s pretextual because no evidence was that white presented was seated had the same as ex disqualification who Geddis, instance, in juror). cluded For black (1993), 23-year- the solicitor struck black age, old female because her but allowed two white young women, twenty years age, jury. both solicitor of rea nondiscriminatory fered an additional and distinguishing He seemingly explained son his inconsistent action. jurors great the two had shown interest an watching white to their day other trial on selection the instant prior case, his normal thereby overcoming practice striking females, and not young that the black had displayed This, court, similar according interest. demonstrated similarly that the black and white were not situated jurors reason Id. facially pretextual. therefore valid at 33. us, before the court examine legiti- the case failed to macy although of the two Gill demon- hardship explanations strated were situated and the solicitor offered they similarly no further which would create distinction be- Despite speculation engaged by major- tween them. it ity whereby hardship explana- declares the white woman’s *14 tion might have been more legitimate and than the compelling black juror’s, thus justifying their disparate treatment, noth- in the ing record indicates either hardship explanation more compelling legitimate other, than the and the trial judge did not find any distinction between the two nor did he even to evaluate attempt any possible distinctions.5Since the State did provide a distinguishing explanation of itwhy did not exercise a peremptory challenge against the white venireperson who requested excuse hardship while exercis- ing one against the black venireperson who made an identical request, the hardship explanation for the strike against black venireperson was a mere pretext. See Oglesby,379 S.E. (2d) at 892 (originally neutral reason bemay proven to be pre- textual because not in a applied manner); neutral see also Fos- ter v. Spartanburg Hosp. System, (Ct. 1994) App. (regardless of the reasonableness of the explanation provided by it striking party, is clear the rea- son was not applied in a neutral manner and therefore the ex- planation forms no reasonable basis for the exclusion and was merely a pretext race). for excluding based on This case can be distinguished from and Sumpter Geddis where the evidence showed that the black and jurors white were not sim- ilarly situated since their disqualificationswere not the same.
Thus, concluding of purposes this appeal Gill es- tablished the hardship explanation was a pretext, the ultimate question court, before this as out pointed by the majority, is whether a pretextual explanation for a peremptory strike nec- essarily constitutes a Batson valid, violation when a race-neu- tral explanation for striking in question is also of- fered. Based on the above-discussed precedential underpin- of the nings Batson decision and its I underlying rationale, am of the opinion even though the prosecutor may have given one racially neutral explanation, the racially motivated explanation, as by evidenced the finding pretext, of vitiates legitimacy jury entire selection procedure. Once it is found that the exercise of even one peremptory challenge racially motivated, this and of itself gives rise to an infer- judge accepted Instead the trial the State’s assertion that this issue was independent moot due to the State’s second reason for the strike and denied the Batson motion. mandates of and violates the discriminatory purpose
ence of
Batson, which
exercising
from
the State
explicitly prohibits
otherwise,
To
discriminatory
manner.
hold
strikes in
of
and of-
believe,
the whole notion
guts
pretext,
I
completely
Batson.
policies underlying
fends
showing
pre-
of whether
Although
specific question
Batson
racially neu-
when another
text establishes a
violation
re-
has not been
provided
tral
valid
has been
and
a paucity
there is
courts
this
appellate
solved
re-
case
issue.
foreign
My
state
law
this
federal
approaches
taken
search reveals courts have
two well-defined
Texas, Georgia,
Military
challenges.
on these
ruling
a racially
have
the “tainted”
where
adopted
approach,
Courts
*15
process
the entire selection
explanation will vitiate
motivated
for the
explanations
of other
regardless
genuinness
State,
(2d)
(Tex.
See,
v.
e.g.
Moore
811
197
App.
strike.
S.W.
1991)
problem assessing punish-
would have
(venireperson
(valid)
(invalid));
minority
of
club
ment
and was member
Greene,
(C.M.A. 1993)
States v.
United
(possible
Finally, United States v. 897 F. (9th 1990), Cir. the Ninth Circuit stated “where both le- gitimate illegitimate reasons are offered the prosecu- tion strike], exercising peremptory [for need for a mean- ingful hearing adversarial to discover the true motivation be- hind the challenges especially This strong.” approach sug- gests a middle ground between the approaches discussed above and trial requires the to determine judge the dominant reason behind strike. review of
My South Carolina cases has uncovered two cases that directly Martinez, reflect on this In issue. State v. 641 (1987), the solicitor struck two black jurors they because “were of same age sex and as and also appellant had criminal records.” The court ‘possible’ conceded the implicitly age solicitor’suse of as an explanation was “insufficient” State had seated a white approximate the same Our age. Court, neverthe- less, sustained the strikes black jurors because the “were noted as criminal having possible Tomlin, records.” (1989), however, court *16 found a Batson juror violation where a was stricken three reasons, two of which were found to be neutral. The court ruled that the third the explanation “shucked and was a jived” racial and “evidence of stereotype prose- the subjective cutor’s intent to discriminate and clearly violates (2d) the mandates of Batson.” Id. 384 710. basically the adopting majority second the approach,
cites Martinez as for the support adoption. Because I cannot Martinez, square Tomlin with I we Tom- believe should follow lin which implicitly approach. takes “tainted” As stated Rector v. we realize that it is to ex- “[w]hile unrealistic pect trial counsel to aside put every influence when improper a juror, we conclude that what law re- selecting exactly (2d) Tomlin, quires” Id. at 865 (citing (1989)). that have used courts 294, 384 S.E. if becomes gender reason that race or approach the “tainted” the jury process in the selection juror, a factor exclusion of “no can neutral become contaminated has practice condemned to rebut presumption serve exclusion based on race occurred----” decided our Court many by Supreme A review of cases will makes it clear that the court the Batson issue addressing his as regarding a trial judge’s ruling deference to give great exercising a strike peremptory of whether a party sessment v. Patter motivation. See State gender did so with racial or it son, Additionally, ap pretextual explanations apparent the more pears — See, e.g., v. Dyar, will condemned the court. (1994) (because the actual solicitor had no —, 452 S.E. he mani records white knowledge jurors, criminal racial motivation for a black subjective striking fested no his office had though with a similar criminal record even names as jurors’ counsel white furnished defendant’s records). major So in with criminal fairness to veniremen juncture develop at this in the may ity, Court approach of Batson parameters approve ment of However, I would ef think to do so adopted by majority. ability destroy appellate court’s fectively practically and will pretextual challenges character Batson judge that “defendants prophecy Justice Clarence Thomas’ hasten road that day rue the that this court ventured down this will the elimination of strikes.” inexorably will lead to McCollum, 42, —, v. 112 S.Ct. Georgia I reverse the Batson issue. would HOMES, INC., Appellant-Respondent TOP VALUE Harden, Respondents-Appellants. Thomas HARDEN and June 427)
(460 S.E.
Appeals
Court of
and found that
notes
went
being
jurors.
on
I don’t think that
as to
excused but there were
black
rors
saying
[sic]
it did but
the kind
happened and I’m not
that
those are
go
look into
further
things that
the court would have to
were we
on
you
point. Do
understand?
ordinarily
(surrounding
“that
these facts
2 The State concedes
its brief
hardship explanation)
indicate
would at least
that the State’s articulated
Strauder,
Throughout
century following
the Fourteenth
Amendment
to police
system,
was used
and the
jury
United
States
Court
consistently
repeatedly
reaffirmed the basic constitutional
principle
purpose
ful or deliberate exclusion of
from jury
African-Americans
participation
Equal
account
race violates the
Protection
Delaware,
Clause. See Neal v.
103 U.S.