THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Bradford Haigler, Appellant.
Appeal From Orangeburg County
Edward B. Cottingham, Circuit Court Judge
Opinion No. 24927
Heard February 17, 1999 - Filed March 22, 1999
Assistant Appellate Defender Robert M. Dudek of the
South Carolina Office of Appellate Defense,
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General S. Creighton Waters, all
of Columbia, and Solicitor Walter M. Bailey of
Summerville, for respondent.
WALLER, A.J.: A jury convicted Bradford Haigler (appellant) of
murder. A circuit judge sentenced him to life in prison. This appeal follows.
Appellant murdered John Bovain (victim) in January 1997 by
shooting him twice in the head with a handgun. The shooting occurred while
appellant, then seventeen years old, was a passenger in a car the victim was
driving. The car crashed into a building, injuring appellant. Appellant left the
scene and walked home. Appellant first told police that one of three men who
flagged down the car shot the victim. The next day, appellant confessed he had
shot Bovain with his father's pistol. He took detectives to the location where he
had hidden the pistol in a pile of yard debris while walking home.
Appellant is a black man. The jurors seated in his case included
three white men, five white women, one black man, and three black women.
The two alternate jurors, who did not participate in deliberations, were black
men. The prosecutor exercised peremptory challenges against four black
women and one white man.
Appellant raised a Batson1 challenge to the prosecutor's decision to
strike the black women as prospective jurors. The prosecutor stated he struck
the first black woman because she was very young and had gone to school with
appellant. He struck the second black woman because she had a shoplifting
conviction. He struck the fourth black woman because she was unemployed,
which meant she had an insufficient stake in the community. The trial judge
ruled all those were race-neutral reasons for the strikes.
The prosecutor stated he struck the third black woman, Tammy
Berry, for two reasons.
One reason is that she had prior jury service on a
criminal sexual conduct and came back with a not
guilty verdict. That wasn't the main reason. The main
reason was that Larry Smith2 who is a key witness
2 The prosecutor apparently meant to say "Larry Williams." Orangeburg
(continued . . .)
here knows this person, says she is a good person but
she is very high strung, a critical type person,
opionated (sic) and he didn't feel like she could
deliberate well with the other jurors, would be a
Appellant argued the first reason given by the prosecutor was
pretextual because the prosecutor had accepted Gerald Smith, a white man,
who also had returned a not guilty verdict in a criminal case.3 Smith had sat
on a criminal jury eighteen to twenty years earlier, and he thought he
remembered that the verdict in the domestic shooting case was not guilty.
Berry had sat on a criminal jury five years earlier, and definitely remembered
that the verdict in the rape case was not guilty. Appellant argued the second
reason given by the prosecutor was pretextual because Berry did not stand up
during voir dire to say she knew Larry Williams when venire members were
asked whether they knew law enforcement officers involved in the case.
The trial judge denied the Batson motion, ruling both the
prosecutor's reasons were racially neutral and not, pretextual. Appellant
contends the judge erred.
Did the trial judge err in not finding a Batson
The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution prohibits the striking of a venireperson on the basis
of race. State v. Hicks, 330 S.C. 207,499 S.E.2d 209 (citing Batson v. Kentucky,
Sheriff s Capt. Larry Williams led the investigation and testified at appellant's
trial. The prosecutor referred to him as "Mr. Williams" at another point during
the Batson hearing.
3 Smith did not serve on the jury because appellant struck him.
supra), cert. denied, _ U.S. _, 119 S.Ct. 552 (1998); Payton v. Kearse, 329
S.C. 51) 495 S.E.2d 205 (1998). The purposes of Batson and its progeny4 are to
protect the defendant's right to a fair trial by a jury of the defendant's peers.,
protect each venireperson's right not to be excluded from jury service for
discriminatory reasons, and preserve public confidence in the fairness of our
system of justice by seeking to eradicate discrimination in the jury selection
process. Powers v. Ohio, 499 U.S. 400, 404-10, 111 S.Ct. 1364, 1367-70, 113
L.Ed.2d 411,420-24 (199 1); Batson v. Kentucky, 476 U.S. at 85-87, 106 S.Ct. at
1716-182 90 L.Ed.2d at 79-81.
A Batson hearing is conducted in the following manner. 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. Second,
the proponent of the strike must present a race- or gender-neutral explanation.
At this second step, the proponent of the strike no longer is required to offer a
reason that is race or gender-neutral and clear, reasonably specific, and
legitimate. The reason must only be race- or gender-neutral. Third, the
opponent of the strike must show that the race- or gender-neutral explanation
given was mere pretext. State v. Adams, 322 S.C. 114,124,470 S.E.2d 366, 372
(1996) (adopting the Batson procedure set forth in Purkett v. Elem, 514 U.S.
765, 115 S.Ct- 1769, 131 L.Ed.2d 834 (1995)). The burden of persuading the
court that a Batson violation has occurred remains at all times on the opponent
of the strike. Id.
"Pretext generally will be established by showing that similarly
situated members of another race were seated on the jury. Under some
exclude potential jurors on the basis of gender as well as race. J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 14192 128 L.Ed.2d 89 (1994). A
criminal defendant may object to race-based peremptory challenges on equal
protection grounds regardless of whether the defendant and potential juror
share the same race. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d
411 (1991). A prosecutor may challenge a defendant's use of peremptory
challenges as an equal protection violation. Georgia v. McCollum, 505 U.S. 42,
112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The prohibitions on the discriminatory
use of peremptory challenges apply in criminal and civil cases. Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).
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." Payton v. Kearse, 329 S.C. at 55, 495 S.E.2d at 207;
accord State v. Adams, supra; State v. Casey, 325 S.C. 447, 481 S.E.2d 169 (Ct.
In deciding whether the opponent of a strike has carried the burden
of persuasion, a court must undertake a sensitive inquiry into the
circumstantial and direct evidence of intent. A strike must be examined in light
of the circumstances under which it is exercised, including an examination of
the explanations offered for other strikes. State v. Oglesby, 298 S.C. 279, 37.9
S.E.2d 891 (1989). Whether a party's proffered reason for exercising a
peremptory strike is discriminatory must be determined by examining the
totality of the facts and circumstances in the record. Riddle v. State, 314 S.C.
12 443 S.E.2d 557 (1994). The composition of the jury panel is a factor that may
be considered when determining whether a party engaged in purposeful
discrimination. State v. Dyar, 317 S.C. 77, 452 S.E.2d 603 (1994); State v.
Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990).
The trial court's findings regarding purposeful discrimination are
accorded great deference and will be set aside on appeal only if clearly
erroneous. State v. Ford, Op. No. 24899 (S.C. Sup. Ct. filed February 8, 1999)
(Shearouse Adv. Sh. No. 6 at 3 1); State v. Dyar, supra (citing Hernandez v. New
York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). When the record
does not support a party's stated reason for a strike, this Court will overturn the
trial court's findings that are based on that reason. State v. Ford, supra; State
v. Patterson, 307 S.C. 180, 414 S.E.2d 155 (1992).
We hold that appellant has not carried his burden of persuasion in
proving the prosecutor engaged in purposeful discrimination during the jury
selection process. The case upon which he primarily relies, State v. Oglesby,
supra, is inapposite. In that case, the prosecutor struck three black women,
resulting in an all-white jury. The prosecutor adamantly insisted he struck the
black prospective jurors because they were patients of a doctor who was a
defense witness. The Court found the reason pretextual because the prosecutor
seated a white woman who also was a patient of the same doctor.
In this case, the prosecutor's primary reason for striking Berry was
because the lead detective in appellant's case knew her to be a high-strung,
critical person who would be a polarizing force on the jury. That was a race
neutral reason for the strike. Cf. State v. Richburg, 304 S.C. 162, 403 S.E.2d
315 (1991) (officer's apparent knowledge that venireperson had anti-law
enforcement bias may be race-neutral reason for strike); State v. Smith, 321
S.C. 471) 469 S.E.2d 57 (Ct. App. 1996) (trooper's personal contact with
venirepersons and belief they may hold anti-law enforcement bias may be race
neutral reason for strike). Berry's failure to reveal during voir dire that she was
acquainted with the lead detective is irrelevant to the Batson analysis, which
focuses upon a party's knowledge of a potential juror and reason for exercising
a peremptory challenge.
The prosecutor's second, less important reason for striking Berry
was that she had served on a criminal jury that had returned a not guilty
verdict. If we deemed that reason to be pretextual because the prosecutor
seated Smith, a white man who also had served on a criminal jury that returned
a not guilty verdict, then we would find a Batson violation under Payton v.
In Payton v. Kearse, we rejected the dual motivation analysis,
instead adopting a "tainted" approach in which a fundamentally implausible or
pretextual reason for a strike taints any other legitimate reason for the strike.
"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."
Id., 329 S.C. at 59, 495 S.E.2d at 210.
However, we do not believe the prosecutor's second reason was
fundamentally implausible or pretextual. First, Berry and Smith were not
similarly situated in that Berry had served on a criminal jury five years earlier
and definitely remembered the verdict, while Smith had served on a criminal
jury some twenty years earlier and was unsure of the verdict. Second, and more
importantly, the circumstances of the jury selection process indicate the
prosecutor did not strike potential jurors for racially motivated reasons. While
the prosecutor struck four black prospective jurors, he seated four black people
on the regular jury and two black alternate jurors. See State v. Dyar, supra
(composition of jury panel is one factor to consider in Batson analysis); State v.
Guess, 318 S.C. 269, 457 S.E.2d 6 (Ct. App. 1995) (finding no purposeful
discrimination, in part because jury included six members of the minority
allegedly offended); State v. Watts, 320 S.C. 377,465 S.E.2d 359 (Ct. App. 1995)
(finding no purposeful discrimination, in part because jury was composed of
eight white people and four black people, and prosecutor had struck two white
Similarly, the record contains no indication the prosecutor's stated
reasons for striking the other three black women -- that one was too young and
knew appellant, one had a criminal conviction, and one was unemployed -- were
motivated by purposeful discrimination. See State v. Ford, supra (lack of
employment or place or type of employment may be race-neutral reason for
strike); State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990) (potential juror's
knowledge of and association with defendant may be race-neutral reason for
strike); State v. Dyar, supra (past prosecution of potential juror by particular
solicitor's office may be race-neutral reason for strike); State v. Green, 306 S.C.
941 409 S.E.2d 785 (1991) (unemployment may be race-neutral reason for a
strike); State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987) (unemployment
and possible criminal records may be race-neutral reasons for a strike).
We conclude the trial judge correctly ruled that appellant failed to
prove a Batson violation.
We dispose of appellant's three remaining issues pursuant to Rule
220(b)(1), SCACR, and the following authorities: Issue 2: State v. Byram, 326
S.C. 107, 485 S.E.2d 360 (1997) (a constitutional argument is not preserved for
appeal where appellant failed to argue the constitutional basis for his request
at trial); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (finding that
issues not raised to and ruled on by trial judge are not preserved for review);
Issue 3: State v. Nichols, 325 S.C. 1112 481 S.E.2d 118 (1997); State v.
Alexander, 303 S.C. 377,401 S.E.2d 146 (1991); State v. Patrick, 289 S.C. 301,
345 S.E.2d 481 (1986), overruled on other grounds, Casey v. State, 305 S.C. 445,
409 S.E.2d 391 (1991); State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986);
State v. Williams, 321 S.C. 327P 468 S.E.2d 626 (1996); Issue 4: State v.
Nichols, 325 S.C. 111) 481 S.E.2d 118 (1997); State v. Gadsden, 314 S.C. 229,
442 S.E.2d 594 (1994); State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993);
State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.