S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Jimmy Short, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Dillon County
Thomas W. Cooper, Jr., Judge
Opinion No. 24879
Heard November 5, 1998 - Filed January 18, 1999
AFFIRMED
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and
Assistant Attorney General Caroline Callison Tiffin,
all of Columbia; and Solicitor Jay Hodge, of
Darlington, for petitioner.
Chief Attorney Daniel T. Stacey and Assistant
Appellate Defender Tara S. Taggart, both of S.C.
Office of Appellate Defense, of Columbia, for
respondent.
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STATE v. SHORT
MOORE, A.J.: We granted the State's petition for a writ of
certiorari to review the Court of Appeals' decision finding reversible error
in the denial of respondent Short's right to peremptorily challenge two
jurors. 327 S.C. 329, 489 S.E.2d 209 (Ct. App. 1997). We affirm.
FACTS
Short was convicted of armed robbery and three counts of assault
and battery of a high and aggravated nature. He was sentenced to
concurrent terms of twenty-five years for armed robbery and five years for
each count of assault and battery.
During jury selection, Short used eight peremptory challenges, all
against white venirepersons. On the State's motion, the trial judge
conducted a Batson1 hearing. He ruled two of Short's challenges were
racially motivated and set aside the jury panel. The trial judge then
directed that the jury be re-struck and that Short would not be permitted
to challenge the two venirepersons previously stricken in violation of
Batson.2
On appeal, the Court of Appeals held Short's peremptory challenges
did not violate Batson and that it was reversible error to seat the two
challenged jurors.
ISSUE
Did the Court of Appeals err in reversing Short's
convictions absent a showing of prejudice?
DISCUSSION
The State argues the trial judge properly found the two strikes in
question violated Batson and the Court of Appeals erred in reversing this
1Batson v. Kentucky, 476 U.S. 79 (1986).
2It is within the trial judge's discretion to prohibit a peremptory
challenge against a venireperson previously struck in violation of Batson.
State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995).
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STATE v SHORT
ruling.3 We disagree.
The two contested strikes were exercised against Jurors #39 and
#13. At the Batson hearing, counsel for Short explained he challenged #39
because her husband was an assistant manager at "Carl's" and "just
about every term of court, Carl's has a case in court, either somebody
shooting in the parking lot, bad checks, one thing and another." As to
#13, counsel explained the juror was employed at the same business where
counsel's brother was the manager and "maybe because he's a manager,
he's made somebody mad and they would hold it against my client."
In State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996) (citing
Purkett v.Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)), we
set forth the proper procedure for a Batson hearing. A proponent of a
strike has no burden to present an explanation that is persuasive or even
plausible. Once the proponent states a reason that is race-neutral, the
burden is on the party challenging the strike to show the explanation is
mere pretext, either by showing similarly situated jurors were seated, or
that the reason given for the strike is so fundamentally implausible as to
constitute mere pretext despite a lack of disparate treatment. In this
case, Short's explanations were facially race-neutral and the State failed to
show mere pretext. Accordingly, the trial judge erred in ruling these
strikes violated Batson and the Court of Appeals properly found error.
After finding error in the trial judge's Batson ruling, the Court of
Appeals went on to find reversible error because Short's right to exercise
peremptory challenges against the two jurors was denied him.4 The Court
of Appeals found no showing of prejudice was required because there was
no way to determine with any degree of certainty whether Short's right to
a fair trial by an impartial jury was abridged. 327 S.C. at 335, 489
3 As an initial matter, the State argues Short's challenge to the trial
judge's ruling was not preserved on appeal to the Court of Appeals because
he did not make a timely objection. Under S.C. Code Ann. 14-7-1030
(Supp. 1997), an objection to a juror must be made before the jury is
impaneled. Before the jury was sworn, Short objected to seating the two
jurors he had previously struck. His objection was therefore timely.
4 We note there is no Batson violation when a juror against whom a
party would have exercised a peremptory challenge is ultimately seated on
the jury. Batson vindicates the juror's right to equal protection and this
right is not abridged if the juror is seated. Adams, supra.
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STATE v. SHORT
S.E.2d at 212.
In finding reversible error, the Court of Appeals adopted the analysis
of United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996), requiring no
showing of actual prejudice to reverse for infringement of the federal
statutory right to exercise a peremptory challenge. This rule is consistent
with that of a clear majority of state courts as well. See, e.g., Mason v.
State, 536 So.2d 127 (Ala. Crim. App. 1988); State v. Huerta, 175 Ariz.
262, 855 P.2d 776 (1993); Hagerman v. State, 613 So.2d 552 (Fla. Dist. Ct.
App. 1993); People v. Bennett, 282 Ill. App. 3d 975, 669 N.E.2d 717 (1996);
State v. Hauhi, 86 Spence v. State, 20
Md. App. 201, 314 A.2d 727 (1974); Commonwealth v. Roche, 44 Mass.
App. 372, 691 N.E.2d 946 (1998); Areanas v. Gari, 309 N.J. Super. 1, 706 A.2d
736 (1998); Fuson v. State, 105 N.M. 632, 735 P.2d 1138 (1987); City of
Dickson v. Lindstrom, 575 N.W.2d 440 (N.D. 1998); Baker v. English, 324
Or. 585, 932 P.2d 57 (1997); Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d
1101 (1987); Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991); State
v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997); Westcom v. Meunier,
164 Vt. 536, 674 A.2d 1267 (1996); Wardell v. McMillan, 844 P.2d 1052
(Wyo. 1992).
To the contrary, however, there is precedent of this Court indicating
a showing of actual prejudice is required to find reversible error in the
denial of the right to exercise a peremptory challenge. In State v. Plath,
277 S.C. 126, 284'S.E.2d 221 (1981), overruled on other grounds, State v.
Collins, 329 S.C. 23, 495 S.E.2d 202 (1998), we concluded the defendant
failed to show prejudice from the denial of a peremptory challenge where
there was ample opportunity to examine the juror on voir dire and there
was no showing of any bias or lack of impartiality on the part of the juror.
Accordingly, we found no reversible error.
We now overrule Plath and adopt the majority rule that no showing
of actual prejudice is required to find reversible error for the denial or
impairment of the right to a peremptory challenge. We note that Plath is
distinguishable from our other decisions discussing "prejudice" in the
denial of a peremptory challenge where the issue actually turned on
whether the complaining party had established he was denied the right to
exercise a peremptory challenge. Where such a denial was established, we
implicitly applied the majority rule discussed above and reversed without
a showing of actual prejudice. See State v. Anderson, 276 S.C. 578, 281
S.E.2d 111 (1981) (prejudice in wrongfully limiting number of peremptory
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STATE v. SHORT
challenges where defendant exercised all permitted); Moore v. Jenkins, 304
S.C. 544, 405 S.E.2d 833 (1991) (failure to use side-to-side procedure in
allowing peremptory challenges in a case with multiple defendants
prejudiced the plaintiff as a matter of law). In cases finding no prejudice,
on the other hand, we actually determined the complaining party had not
established the denial of a peremptory challenge. See Laury v. Hamilton,
317 S.C. 5031, 455 S.E.2d 173 (1995) (no prejudice where party received
greater number of strikes than that to which he was entitled under side-
to-side method); State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973) (no
prejudice in limiting number of peremptory challenges where defendants
used fewer than allowed). Before reversible error can be found, the
complaining party must of course establish the denial of his right to
exercise a peremptory challenge.
The decision of the Court of Appeals is
AFFIRMED.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur
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