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24899 - State v. Ford

Davis Adv. Sh. No. 6
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).

p.32


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.

p.33


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.

p.34


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).



p.35


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