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24740 - Edgar Payton v. Tina L. Kearse

Davis Adv. Sh. No. 3
S.E. 2d


In The Supreme Court

Edgar Payton, Respondent,


Tina L. Kearse, Petitioner.



Appeal From Allendale County

Gerald C. Smoak, Judge

Opinion No. 24740

Heard October 2, 1996 - Filed January 12, 1998


Lewis C. Lanier, of Horger, Horger & Lanier, of
Orangeburg; and Paul W. Owen, Jr., of Lourie & Safran,
of Columbia, for petitioner.
Daniel W. Williams, of Bedingfield & Williams, of
Barnwell; and J. Paul Detrick, of Peters, Murdaugh,
Parker, Eltzroth & Detrick, of Hampton, for respondent.

Burnett, A.J.: We granted certiorari to review the Court of

Appeals opinion in Paylon v. Kearse, __ S.C. __, 460 S.E.2d 220 (Ct.

App. 1995). We reverse.


Edgar Payton (Respondent) brought a negligence action against

Tina Kearse (Petitioner) for injuries sustained in an automobile accident.

The jury returned a verdict of $700,000 actual damages in favor of


p. 22


Petitioner appealed alleging that the trial court erred in failing

to find respondent's peremptory strikes during jury selection were racially

motivated and by refusing to admit the testimony of her expert witness,

Varner Richards. The Court of Appeals affirmed. Id.


I.   Did respondent use his peremptory strikes in a
racially discriminatory manner in violation of
Batson v. Kentucky 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986); and State v. Adams,
__S.C.__ 470 S.E.2d 366 (1996)?
II.   Did the lower courts err in failing to grant the
petitioner a new trial based upon the exclusion of
the testimony of Varner Richards?


I. Batson Challenge

Petitioner challenges respondent's use of his peremptory strikes

under Batson supra, claiming the strikes were racially motivated. We


The Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution prohibits the use of peremptory strikes in a

discriminatory manner. Id. This prohibition applies in civil cases as well

as criminal cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111

S.Ct. 2077, 114 L.Ed.2d 660 (1991); Chavous v. Brown, 299 S.C. 398, 385

S.E.2d 206 (Ct. App. 1989), rev'd, 302 S.C. 308, 396 S.E.2d 98 (1990),

vacated, 501 U.S. 1202, 1 11 S.Ct. 2791, 115 L.Ed.2d 966, aff'd on remand,

305 S.C. 387, 409 S.E.2d 356 (1991). A party has standing to object to

race-based peremptory strikes of venire persons even if the challenging

party and the potential juror are not of the same race. Powers v. Ohio,

499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); State v. Dyar, 317

S.C. 77, 452 S.E.2d 603 (1994).

Both petitioner and respondent are black. Respondent

exercised all of his peremptory strikes to remove prospective white jurors.

Petitioner requested a Batson hearing. After hearing respondent's reasons

for striking the jurors, the trial court declared the reasons race-neutral

p. 23


and found respondent had not violated Batson. We conclude the trial

court erred in finding the reason offered to strike Juror 18 to be race-

neutral on its face.

Recently, our Court adopted the standard delineated by the

United States Supreme Court in Purkett v. Elem, __ U.S.__, 115 S.Ct.

1769, 131 L.Ed.2d 834 (1995), for analyzing a Batson challenge. Adams,

supra. First, the trial judge must hold a Batson hearing when members of

a cognizable racial group or gender are struck and the opposing party

requests a hearing. The second step of the analysis requires the

proponent of the strike to offer a race-neutral explanation. Unless a

discriminatory intent is inherent in the proponent's explanation, the

reason offered will be deemed race-neutral. In the third step, the

opponent of the strike must show that the race-neutral explanation given

was mere pretext. Pretext generally will be established by showing that

similarly situated members of another race were seated on the jury.

Under some circumstances, the race-neutral explanation given by the

proponent may be so fundamentally implausible that the judge may

determine, at the third step of the analysis, that the explanation was mere

pretext even without a showing of disparate treatment. Purkett, supra;

Adams, supra.

Here, we need not go beyond the second step of the analysis.

Respondent's counsel offered the following reason for striking Juror 18:

The juror number 18, she is known as [a] very
opinionated person, your Honor, who expresses
herself. We knew if she got on that jury she was
not gone [sic] budge one way or the other, that she
was gone [sic] get her way or no way. That was
our opinion from what we had learned. Her family
has-- Mr. Lanier has talked about the number of
people in trouble. She herself has not had any
problems but she comes from a family 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
that was the reason we struck her and, as you
know, your Honor, I was concerned with her family,
whether she had any problems with me or the law
because some members of her family might have
problems with the law.

p. 24


(emphasis added).

The term "redneck" is a racially derogatory term appl'ed

exclusively to members of the white race.1 The use of the term "redneck"

is not a valid race-neutral reason to strike a potential juror, and therefore,

the strike is facially discriminatory and violates Batson. See Wilkerson v.

Texas, 493 U.S. 924, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989) (dissent from

denial of petition for certiorari) (an explanation tainted by an

impermissible factor is not neutral).

Respondent argues "redneck" is a descriptive term used to

describe a person with a particular bias and is not discriminatory against

the white race because these persons, like members of the KKK or Black

Panthers, are struck because of their attitudes and prejudices. However,

the term encompasses a broader group than just persons with certain

undesirable characteristics. It stereotypes a subgroup of the white race

without any evidence that each member of the group actually possesses

these attitudes. Unlike members of the KKK or Black Panthers who

voluntarily associate with others who hold the same prejudicial beliefs,

"rednecks" have no such common prejudices or attitudes. A "redneck"

should not be excluded from serving on a jury because of this stereotype.

Respondent also claims the context in which the term

" redneck" was used should be considered when determining if the strike

violated Batson. The context becomes relevant at the third step of the

analysis when the court determines if a race-neutral reason was pretext.

Here, because the reason offered was not race-neutral on its face, we need

not reach the third step of the analysis.

Respondent further argues that by finding use of the term

"redneck" violated Batson, we are preventing a party from obtaining a fair

trial because a party cannot strike potential jurors who are biased against

the party. However, the right to serve on a jury and not to be

discriminated against because of race or gender belongs to the potential

juror, not the party. Edmonson, supra. Our holding only prevents a party

from striking a juror based on a racially stereotypical reason. A party

1 The term "redneck" is defined as "a member of the white rural laboring

class . . .offensive slang." The American Heritage Dictionary 1037 (2d

college ed. 1985). In Webster's New World Dictionary, "redneck" is defined

as $$a poor, white rural resident of the South: often a somewhat derogatory

term." Webster's New World Dictionary 1190 (2d college ed. 1976).

p. 25


may still strike a juror based on actual known biases of a particular juror.

Further, we reject the dual motivation analysis employed by

the Court of Appeals to uphold the strike.2

In State v. Gill, 319 S.C. 283, 460 S.E.2d 412 (Ct. App. 1995)

(Cureton, J., dissenting), aff'd as modified, (S.C. Sup. Ct. filed August 11,

1997) (Davis Adv.Sh. No. 24 at 38),3 the South Carolina Court of Appeals

reviewed the prosecution's strike of a black female juror in a criminal

case. The prosecution had offered two reasons for the strike: (1) the juror

had requested a hardship excuse; and (2) the juror lived on the same

street as the defendant and the prosecution felt it was possible she might

realize she knew the defendant. Because the prosecution allowed a white

juror who had requested a hardship excuse to be seated, the trial court

expressed concern that the first explanation for the strike of the black

female was pretextual. However, the trial judge denied the defendant's

Batson motion, concluding the second reason given for the strike was

racially neutral notwithstanding the potential invalidity of the first reason.


On appeal, the Court of Appeals assumed for purposes of

analysis that the prosecution's first reason was pretextual. Nevertheless,

the Court of Appeals concluded the prosecution had not violated Batson,

reasoning that "an action motivated in part by an impermissible reason

will not necessarily be invalid if the same action would have been taken in

2Prior to this opinion, this Court had not addressed the application

of this analysis in the Batson context. However, we note our previous

case law could be interpreted as inconsistent on this issue. Compare State

v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989) (finding the discriminatory

reason vitiated the two nondiscriminatory reasons given for the strike);

with State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987) (finding no

Batson violation where both a nondiscriminatory reason and a

discriminatory reason had been given for the strike). Therefore, to the

extent any previous opinions may be read as implicitly adopting the dual

motivation analysis, they are overruled.

3While this Court affirmed the conviction of Gill, it vacated the

opinion of the Court of Appeals on the Batson issue finding the Court of

Appeals erred in reaching this issue because it was not properly preserved

for review. State v. Gill, (S.C. Sup. Ct. filed August 11, 1997) (Davis Adv.

Sh. No. 24 at 38).

p. 26


the absence of the impermissible motivation." Id. At 289, 460 S.E.2d 416

(citing Mt. Healthy City Sch. Bd. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50

L.Ed.2d 471 (1977)).

Judge Cureton concurred in part and dissented in part. He

first observed the "sole Batson issue before [the Court of Appeals] is

whether the racially neutral explanation is sufficient to sustain the

peremptory strike of the black juror even if the hardship explanation was,

in fact, pretextual and constitutionally infirm." Id. at 294, 460 S.E.2d at

419. After noting the ultimate goal of Batson and its progeny is the

elimination of discriminatory jury selection practices, Judge Cureton


Based on the above discussed precedential underpinnings of
the Batson decision and its underlying rationale, I am of the
opinion that even though the prosecutor may have given one
racially neutral explanation, the racially motivated explanation,
as evidenced by the finding of pretext, vitiated the legitimacy
of the entire jury selection procedure. Once it is found that
the exercise of even one peremptory challenge is racially
motivated, this in and of itself gives rise to an inference of
discriminatory purpose and violates the mandates of Batson,
which explicitly prohibits the State from exercising strikes in a
racially discriminatory manner. To hold otherwise, I believe,
completely guts the notion of pretext, and offends the policies
underlying Batson.

Id. at 299-300, 460 S.E.2d at 421.

Judge Cureton then analyzed approaches used by other

jurisdictions to answer the question of whether a discriminatory

explanation will vitiate other neutral explanations for the peremptory


Some courts follow an approach taken in other areas of Equal

Protection jurisprudence4 and have adopted the dual motivation doctrine.

4This doctrine has been adopted by the United States Supreme Court

in other areas of Equal Protection analysis. See Hunter v. Underwood,

471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97

S.Ct. 555, 50 L.Ed.2d 450 (1977).

p. 27


See Howard v. Sankowski, 986 F.2d 24 (2d Cir. 1993). Under this

doctrine, if the challenging party proves a discriminatory purpose, the

challenged party has an opportunity to show the peremptory strike would

have been exercised even if the improper factor had not, in part, motivated

the decision to strike. Howard, supra. Although the United States

Supreme Court has not yet addressed this doctrine's applicability to a

Batson challenge, other courts have followed Howard in adopting the dual

motivation doctrine in the Batson context.5 See Jones v. Plaster, 57 F.3d

417 (4th Cir. 1995); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995),

cert. denied, 116 S.Ct. 1449 (1996); Wallace v. Morrison, 87 F.3d 1271

(11th Cir. 1996).

However, other jurisdictions have adopted the "tainted"

approach where a discriminatory explanation will vitiate the entire

selection process regardless of the genuineness of the other explanations

for the strike. See United States v. Greene, 36 M.J. 274 (C.M.A. 1993)

(strike violated Batson because the invalid reason vitiated the valid

reasons); Rector v. State, 444 S.E.2d 862 (Ga. App. 1994) (finding the

invalid reason tainted the other valid reasons); Moore v. State, 811 S.W.2d

197 (Tex. App. 1991) (finding a Batson violation where a juror would have

a problem assessing punishment (valid) and was a member of a minority

club (invalid)). Judge Cureton concluded South Carolina should adopt the

"tainted" approach. State v. Gill, supra. We agree.

In our opinion, it is inappropriate to apply the dual motivation

doctrine in the Batson context.6 Once a discriminatory reason has been

uncovered -- either inherent or pretextual -- this reason taints the entire

jury selection procedure. By adopting dual motivation, this Court would

be approving a party's consideration of discriminatory factors so long as

sufficient nondiscriminatory factors were also part of the decision to strike

a juror and the discriminatory factor was not the substantial or motivating

factor. However, any consideration of discriminatory factors in this

decision is in direct contravention of the purpose of Batson which is to

ensure peremptory strikes are executed in a nondiscriminatory manner.

5We note a federal district court recently questioned the continued

viability of Howard and its progeny in light of the "facially valid" standard

enunciated by the United States Supreme Court in Purkett. United States

v. Somerstein, 959 F. Supp. 592 (E.D.N.Y. 1997).

6We hinted at adopting this approach in our decision in State v.

Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).

p. 28


See Rector v. State, 444 S.E.2d at 865 ("[w]hile we realize that it is

unrealistic to expect trial counsel to put aside every improper influence

when selecting a juror, we conclude that is exactly what the law

requires"); see also State v. Tomlin, supra. "[T]he harm from

discriminatory jury selection extends beyond that inflicted on the

defendant and the excluded juror to touch the entire community." Georgia

v. McCollum, 505 U.S. 42, 49, 112 S.Ct. 2348, 2353, 120 L.Ed.2d 33, 44-45

(1992) (quoting Batson, 476 U.S. at 87, 106 S.Ct. at 1718, 90 L.Ed.2d at

81). "Active discrimination ... during th[e] process [of jury selection]

condones violations of the United States Constitution within the very

institution entrusted with its enforcement, and so invites cynicism

respecting the jury's neutrality and its obligation to adhere to the law."

Powers v. Ohio, 499 U.S. 400, 412, 111 S.Ct. 1364, 1374, 113 L.Ed.2d 411,

426 (1991). Thus, "[r]acial discrimination has no place in the courtroom

whether the proceeding is civil or criminal." Edmunson, 500 U.S. at 630,

111 S.Ct. at 2088, 114 L.Ed.2d at 680 (1991).

Further, as applied, Batson is only effective against the most

obvious examples of racial and gender prejudices. To excuse such obvious

prejudice because the challenged party can also articulate

nondiscriminatory reasons for the peremptory strike would erode what

little protection Batson provides against discrimination in jury selection.

The challenged party should not have an opportunity to convince the judge

that he would have struck the juror regardless of the discriminatory


II. Expert Testimony

Although not necessary for the disposition of this case, we

address the admissibility of the testimony of petitioner's expert witness

because this issue is likely to arise again in the new trial.

Petitioner contends the trial judge erred in excluding the

testimony of her expert witness, Varner Richards. We disagree.

The qualification of a witness as an expert and admissibility of

his testimony are matters largely within the discretion of the trial judge;

however, the exercise of this discretion will be reversed where an abuse of

discretion has occurred. Creed v. City of Columbia, 310 S.C. 342, 426

S.E.2d 785 (1993). Before expert medical testimony is admissible on the

question of causation between the plaintiffs injuries and the acts of the

defendant, the testimony must satisfy the "most probably" rule.

p. 29


Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d


In his proffered deposition, Richards, who has a doctorate in

pharmacy, identified six of the medications taken by respondent as

possibly causing tinnitus as a side effect. Tinnitus was one of the injuries

the respondent claimed was caused by the accident. Richards conceded he

could not state any of the medications most probably caused respondent's

tinnitus. Therefore, Richards was not qualified to testify that respondent's

tinnitus was caused by the drugs. Because Richards' testimony was only

relevant to the issue of causation, the trial judge properly excluded his



FINNEY, C.J., and TOAL, A.J., concur. WALLER and MOORE, JJ

concurring in part and dissenting in part, in separate opinion.



WALLER, A.J. (Concurring in part and dissenting in part): I concur with

the majority insofar as it holds the expert testimony of Richards was properly

excluded. I also concur with the finding that stating a juror is of the

"redneck variety" is not a race neutral reason for exercising a peremptory

challenge. However, I disagree with the decision that the "dual motivation

principle" should not apply to this area of Equal Protection challenges. For

that reason, and because if such a principle were employed here I would find

no Equal Protection violation, I respectfully dissent.

Under the dual motivation principle, if a court concludes a peremptory

strike "has been exercised in part for a discriminatory purpose, the court

must consider whether the party whose conduct is being challenged has

demonstrated by a preponderance of the evidence that the strike would have

nevertheless been exercised even if an improper factor had not motivated in

part the decision to strike." Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.

1995). As the majority notes, this principle has been adopted by the

Supreme Court in other areas of Equal Protection analysis in determining

purposeful racial discrimination,1d although that Court has not yet specifically

addressed its applicability to a Batson challenge. However, a number of

lower courts, including the Fourth Circuit Court of Appeals, have done so.

Jones, 57 F.3d at 417. See also Howard v. Senkowski, 986 F.2d 24 (2d Cir.

1993); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied,

116 S. Ct. 1449 (1996); Wallace v. Morrison, 87 F.3d 1271 (11th Cir.), cert.

denied, 117 S. Ct. 616 (1996). See also Gattis v. State 697 A.2d 1174 (Del.

1997); People v. Pecor, 614 N.E.2d 1184 (Ill. App. Ct. 1996), cert. denied, 684

N.E.2d 1340 (Ill.), and cert denied, 118 S. Ct. 429 (1997).

In Howard v. Senkowski, the Second Circuit Court of Appeals provided

a comprehensive discussion of the application of dual motivation analysis as

applied to discrimination in the exercise of peremptory challenges. That case

focused on the interrelation between the three-step inquiry enunciated in

Batson and the dual motivation principle:

Dual motivation analysis, in effect, may supplement so-
called "pretext" analysis, which applies to a claimant's "burden of
persuading the court that [he or] she has been the victim of
intentional discrimination." When the issue is the all-or-nothing

1dSee...e.g., Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L. Ed.

2d 222 (1985); Personnel Adm'r v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60

L. Ed. 2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).

p. 31

question of whether or not an impermissible consideration
motivated the challenged action ... pretext analysis employs the
familiar three-step approach .... Once the claimant has proven
improper motivation, dual motivation analysis is available to the
person accused of discrimination to avoid liability by showing
that the same action would have been taken in the absence of the
improper motivation that the claimant has proven.
The two forms of analysis are not incompatible. The
claimant always has to prove discriminatory motivation. If he
succeeds, the accused party has an opportunity to show that
there were really two motives and that a permissible motive
would have led to the challenged action. In effect, the accused
party is permitted to show, if he can, that the improper
motivation proved by the claimant was only part, and not the
decisive part, of the motivation.

986 F.2d at 27 (internal citations omitted).

In finding it proper to apply dual motivation analysis to this aspect of Equal

Protection jurisprudence, Howard noted the Supreme Court's reliance on

other types of Equal Protection cases (which utilized dual motivation) in

reaching its seminal decision in Batson v. Kentucky.2d Id. at 28 ("Since dual

motivation analysis was explicitly invoked by the Supreme Court in the

context of determining racial motivation for purposes of adjudicating a

challenge under the Equal Protection Clause, and since Batson equated jury

discrimination claims with 'any case alleging a violation of the Equal

Protection Clause,' one might have thought there would be no question but

that such analysis applies to an equal protection challenge based on racial

motivation in any context, including the context of peremptory challenges")

(internal citations omitted).3d

2d476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

3dInterestingly, the Second Circuit felt not adopting dual motivation

analysis would be unfair to Equal Protection claimants. See Howard, 986

F.2d at 29 ("It is unlikely that in this 'most compelling' context [i.e. Equal

Protection challenged related to discrimination in the judicial system], the

Court intended to invoke a standard more onerous for claimants than that

applicable in other equal protection contexts") (emphasis supplied). Howard

was focusing on certain language from Batson where the Court held, "The

Equal Protection Clause forbids the prosecutor to challenge potential jurors

p. 32


Batson clearly emphasized it sought to further the "general equal

protection principle that the 'invidious quality' of governmental action claimed

to be racially discriminatory 'must ultimately be traced to a racially

discriminatory purpose.'" 476 U.S. at 93, 106 S. Ct. at 1721, 90 L. Ed. 2d at

85 (quoting Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 2048, 48

L. Ed. 2d 597, 607-08 (1976)) (emphasis supplied). In my opinion, the

majority's holding today goes far beyond this principle and what Equal

Protection requires.4d

solely on account of their race." Batson, 476 U.S. at 89, 106 S. Ct. at 1719,

90 L. Ed. 2d at 83 (emphasis supplied).

4dTechnically, since the trial court did not have an opportunity to consider

these issues in the context of the dual motivation principle, were this the

majority opinion, remand would most likely be appropriate. Because this is

not the majority opinion, I would only add that were I applying dual

motivation analysis to the facts of this case, I would find Respondent met his

burden of showing he would have struck juror eighteen without the offensive

reason. Respondent gave several reasons for striking this juror: (1) she is

opinionated; (2) she is stubborn; (3) she is headstrong and unwilling to listen

to others; (4) her family has had problems with the law and she might have

prejudices against Respondent's attorney or law enforcement, and (5) she is

"kind of what we refer to as a redneck variety." Without doubt the first four

reasons are race neutral. Respondent was concerned primarily that the juror

would not be a "team player" with other jurors; he had some personal

knowledge of her as being opinionated and unwilling to compromise. He was

also concerned about certain prejudices she might have against him or law

enforcement because of her family background.

Furthermore, Respondent's stating he struck juror eighteen because she

was of a "redneck variety" is not precisely the same as saying he struck her

because she was white. "Redneck" does not only refer to a person's racial

status. It also means a "person who advocates a provincial, conservative,

often bigoted sociopolitical attitude considered characteristic of a redneck."

American Heritage Dictionary 1037 (2d college ed. 1982). The fact that this

term can refer not only to race but also to beliefs and attitudes further

supports the finding that under the circumstances of this case the ultimate

reason Respondent struck the juror was not because of her race. I point out

that while "redneck" can be used in a stereotypical sense, that is not what

occurred in this case. Certainly, this is the ultimate evil to avoid when

striking jurors: making the assumption that because a juror is a member of

a certain race, he or she will have certain prejudices, sympathies or attitudes.

p. 33


"In detailing the particulars of the Batson proof scheme, we are mindful

that its sole purpose is to help courts and parties answer, 'not necessarily

evade[,] the ultimate question of discrimination vel non.'"Jones, 57 F.3d at

421. I would find dual motivation analysis appropriate in the context of

Equal Protection challenges to peremptory strikes, and thus affirm the Court

of Appeals.

MOORE, A.J., concurs.

With "redneck," the assumption is not based merely on race but on social or

economic status, i.e. "because this juror is a redneck, she must have a

provincial, conservative, or bigoted sociopolitical attitude." In this case,

however, Respondent was not assuming juror eighteen had certain

undesirable attitudes because she was a lower-class white person; he based

his conclusions on actual prior knowledge.