S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Chris Ford, Appellant.
Appeal From Dillon County
Paul M. Burch, Judge
Opinion No. 24899
Heard January 5. 1999 - Filed February 8, 1999
REVERSED
Chief Attorney Daniel T. Stacey, of South Carolina
Office of Appellate Defense, of Columbia, for
appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General Robert F. Daley, Jr., all
of Columbia; and Solicitor Jay E. Hodge, of
Darlington, for respondent.
BURNETT, A.J.: Respondent appeals from his conviction for
murder and armed robbery and his sentence of life for the murder and 30
years, consecutive, for the armed robbery. We reverse.
p.31
STATE v. FORD
FACTS
During jury selection, appellant exercised thirteen peremptory
challenges when selecting the jury and the two alternates. Twelve of the
thirteen jurors struck were white.1 On the State's motion, the trial court
conducted a Batson2 hearing.
Appellant then explained why he struck these jurors.
Appellant struck Juror #7 because her husband's family was active in the
rescue squad, which according to appellant is a "quasi-law enforcement"
activity. Appellant struck Juror #2 and Juror #99 because they work in
the banking industry. Juror #96 was struck because her husband is a
"lieutenant of the Dillon County Police Force." Juror #89 was struck
because, as an employee of McLeod Hospital, she "would tend to believe
any evidence presented by any medical person." Juror #124 was struck
because he works for a school district. Juror #105 was struck because he
lived in the same trailer park as the mother of the victim. Appellant
struck Juror #48 because he is a paramedic and "he's worked closely with
law enforcement and also worked closely with medical personnel . . . ."
Juror #112 was struck because she works for a church. Defense counsel
had a bad experience when a minister previously served on a jury so he
avoids placing church employees on a jury. Juror #113 was struck because
he is an educator and because his wife works for Rural Sanitation.
According to defense counsel, his law office had recently had problems
with this business. Appellant struck Juror #95 because she works at a
local hardware store which is owned by a former longtime Dillon County
Magistrate and his employees are exposed to pro-prosecution ideas since
many law enforcement personnel regularly visit the store. Finally,
appellant struck Juror #126 for the following reason:
[W]e did not feel comfortable.... He's assistant manager of
Tomlinsons on Main Street. My wife helped me select the
juror and as a teenager she worked there and he worked there
at the time. And we feel that he would feel uncomfortable.
1 The first jury selected was composed of eight black jurors and four
white jurors. One of the alternates was black and one was white.
2 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct, 1712, 90 L.Ed.2d 69
(1986).
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STATE v. FORD
And, in fact, last September, when I had a death penalty case,
he sold me a pair of shoes to wear in court for that trial. So
we thought he would be uncomfortable sitting on the jury. We
didn't know which way he might go. But it could certainly
have a bearing on that. And whenever I go into Tomlinsons
we all joke and talk. Of course, we have not talked about this
particular trial, but every time I go in there he's asking me
about court, different cases going on. And I, certainly, would
not want him to be on one of my juries because I wouldn't feel
comfortable.
The trial judge voiced concern that these reasons were too
broad because most explanations concerned where the juror was employed.
The trial judge noted he was most concerned with the strikes exercised
against Jurors #95 and #126. The prosecution argued the reasons given
by appellant were "just too general to be effective. There needs to be a
specific reason that this person, in a specific sitting [sic], is offensive, not
the State or Defense just saying they work somewhere."3
The trial judge then ruled appellant had violated Batson.
According to the trial judge, because appellant exercised all but one of his
strikes against prospective white jurors, "[t]he cumulative effect is a lot
worse picture than looking at it on an individual basis." The trial judge
quashed the jury and ordered selection of a new jury. Further, the trial
judge ruled appellant could not strike Juror #126 during the second jury
3 The State's argument is based on the pre-State v. Adams, 322 S.C.
114, 470 S.E.2d 366 (1996) standard. See State v. Green, 306 S.C., 94, 409
S.E.2d 785 (1991) (the proponent of the peremptory challenges at issue
must present an explanation that is racially neutral, clear, reasonably
specific, legitimate and related to the case). However, this trial occurred
after this Court adopted State v. Adams, supra; therefore, only a race-
neutral reason is required.
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STATE v. FORD
selection.4 Both Jurors #95 and #126 were seated on the second jury.5
ISSUE
Did the trial court err in sustaining the State's Batson
challenge and quashing the jury where appellant's reasons for
exercising the peremptory strikes were facially race neutral
and pretext was not shown?
DISCUSSION
As an initial matter, the State argues appellant failed to
preserve this issue for appellate review because appellant did not object to
the composition of the second jury. We disagree.
We find appellant adequately preserved this issue for review.
During the Batson hearing, appellant clearly stated his position and the
trial judge ruled on the issue. Thus, both appellant's argument and the
trial judge's ruling are contained in the record. Further objection would
have been useless and unnecessary, especially since the second jury was
drawn immediately after this hearing. Compare with State v. Johnson,
Op. No. 24851 (S.C. Sup. Ct. filed Nov. 9, 1998) (Shearouse Adv. Sh. No.
35 at 23) (issue is preserved for review where a party's request to charge
was denied on-the-record after an opportunity for discussion, and the party
is not required to renew his request at the conclusion of the charge).
On the merits, appellant contends the trial judge erred in
finding his strikes violated Batson. We agree.
This Court set forth the proper procedure for a Batson hearing
in State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996) (citing Purkett v.
4 It is within the trial judge's discretion to prohibit a strike against a
venire person previously struck in violation of Batson. State v. Franklin,
318 S.C. 47, 456 S.E.2d 357 (1995).
5 During the selection of the second jury, appellant used eight strikes.
A ppellant struck four black venire members and four white venire
members. The second jury was composed of seven white jurors and five
black jurors. The alternate jurors were a black man and a black woman.
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STATE v. FORD
Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). After a
party objects to a jury strike, the proponent of the strike must offer a
facially race-neutral explanation. This explanation is not required to be
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 members
of another race were seated on the jury or the reason given for the strike
is so fundamentally implausible as to constitute mere pretext despite a
lack of disparate treatment.
The trial judge's findings of purposeful discrimination rest
largely on his evaluation of demeanor and credibility, and the reviewing
court should give the findings great deference on appeal. Sumpter v.
State, 312 S.C. 221, 439 S.E.2d 842 (1994); State v. Green 306 S.C. 94,
409 S.E.2d 785 (1991). However, where the record does not support the
trial court's findings, the findings must be overturned. State v. Grate, 310
S.C. 240, 423 S.E.2d 119 (1992); State v. Patterson, 307 S.C. 180, 414
S.E.2d 155 (1992). Whether a Batson violation occurred must be
determined by examining the totality of the facts and circumstances in the
record surrounding the strike. State v. Green. supra. The composition of
the jury panel is a factor that may be considered when determining
whether a party engaged in purposeful discrimination. State v. Johnson,
302 S.C. 243, 395 S.E.2d 167 (1990).
In this case, appellant's explanations were facially race-neutral.
In particular, with regard to Juror #126, an attorney's personal knowledge
of and relationship with a prospective juror is a race-neutral reason. See
State v. Adams, supra (a potential juror's acquaintance with the trial
judge is a valid reason for exercising a peremptory strike). With regard to
Juror #95, a prospective juror's employment in a hardware store owned by
a longtime magistrate where local law enforcement officials gather is a
race-neutral reason. State v. Adams, supra (a potential juror's
employment as a court reporter is a valid reason for exercising a
peremptory strike); State v. Green, supra (unemployment is a race-neutral
reason). Further, it is legitimate to strike potential jurors because of their
employment. State v. Adams, supra; State v. Green, supra. Also, it is
legitimate to strike a potential juror because she or he has a relationship
with a law enforcement official or because she or he is pro-law
enforcement. Compare with State v. Richburg, 304 S.C. 162, 403 S.E.2d
315 (1991) (State's explanation that juror was anti-law enforcement was
race-neutral).
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STATE v. FORD
Further, these explanations are not so fundamentally
implausible as to constitute mere pretext without some showing of
disparate treatment. The State offered no evidence of pretext, as required
by step three of the Adams/Purke analysis. Although appellant exercised
most of his strikes against white jurors, he did not strike every white
juror. Instead, some white jurors were accepted by appellant and were
placed on the first jury. Further, the fact that appellant used most of his
challenges to strike white jurors is not sufficient, in itself, to establish
purposeful discrimination. See State v. Tucker, Op. No. 24864 (S.C. Sup.
Ct. filed Dec. 14, 1998) (no Batson violation where the State exercised all
six of its peremptory strikes against blacks because the explanations were
race-neutral); State v. Casey, 325 S.C. 447, 481 S.E.2d 169 (Ct. App. 1997)
(no Batson violation where solicitor had neutral reasons for all five strikes
used against males). Thus, this record fails to support the trial judge's
finding of a Batson violation. Accordingly, the trial judge erred in ruling
these strikes violated Batson, and appellant was denied his right to
exercise his peremptory challenges.
The State argues, even if the trial judge erred in finding a
Batson violation, the error was harmless because appellant failed to show
the second jury was not impartial. This Court recently addressed this
precise issue. See State v. Short, Op. No. 24879 (S.C. Sup. Ct. filed Jan.
18, 1999) (Shearouse Adv. Sh. No. 3 at _) (announcing the appropriate
remedy for the denial of the right to exercise a peremptory challenge).
Where such a denial is established, no showing of actual prejudice is
required to find reversible error. Id. Therefore, because appellant
established he was wrongfully denied the right to exercise a peremptory
challenge, we reverse his conviction.
REVERSED.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
p.36