Davis Adv. Sh. No. 3
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Edgar Payton, Respondent,
Tina L. Kearse, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Allendale County
Gerald C. Smoak, Judge
Opinion No. 24740
Heard October 2, 1996 - Filed January 12, 1998
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
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. 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
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;
Here, we need not go beyond the second step of the analysis.
Respondent's counsel offered the following reason for striking Juror 18:
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
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).
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
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).
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
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.
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).
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.
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).
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.
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:
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).
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
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
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
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.
"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
MOORE, A.J., concurs.
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.