Green v. Maynard

• Decision Date: 06 May 2002
• Docket Number: No. 25460.,25460.
• Citation: 564 S.E.2d 83,349 S.C. 535
• Parties: Anthony GREEN, Petitioner, v. Gary D. MAYNARD, Commissioner, South Carolina Department of Corrections, and Charles M. Condon, Attorney General of South Carolina, Respondents.
• Court: South Carolina Supreme Court

349 S.C. 535

564 S.E.2d 83

Anthony GREEN, Petitioner, v. Gary D. MAYNARD, Commissioner, South Carolina Department of Corrections, and Charles M. Condon, Attorney General of South Carolina, Respondents.

No. 25460.

Supreme Court of South Carolina.

Heard January 9, 2002.

Decided May 6, 2002.

Rehearing Denied June 12, 2002.

John H. Blume, of Ithaca, NY; Desa A. Ballard, of West Columbia; and Teresa L. Norris, of the Center for Capital Litigation, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for respondents. Justice MOORE.

We granted a stay of execution to consider petitioner's claim for habeas corpus relief on the ground our decision in his direct appeal violated his due process and equal protection rights. We find petitioner's argument without merit and deny relief.

FACTS

On November 21, 1987, petitioner approached Susan Babich's vehicle in the parking lot of a Charleston shopping mall and shot her in the head with a rifle. He took her purse and fled the scene. Based on an eyewitness's description, police apprehended petitioner in the mall vicinity within thirty minutes. A rifle and Ms. Babich's checkbook were found in his car. Petitioner subsequently admitted his involvement to police.

Petitioner was tried in September 1988. He was convicted of murder and armed robbery and sentenced to death. In March 1990, this Court affirmed his convictions and sentence, State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, Green v. South Carolina, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990). Petitioner's subsequent application for post-conviction relief was denied. He then commenced habeas corpus proceedings in federal court. The United States District Court denied relief and the Fourth Circuit Court of Appeals affirmed that decision. Green v. Catoe, 220 F.3d 220 (4th Cir.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001). Petitioner then filed this petition in our original jurisdiction.

Throughout petitioner's habeas proceedings, he has raised the issue of our 1990 decision refusing to grant him a new trial on the ground the trial judge improperly qualified Juror William Canty. In deciding the issue, we followed the United States Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and focused on the jurors actually seated. Because petitioner exercised a peremptory strike against Juror Canty, who therefore was not seated, we found petitioner was not deprived of his right to a fair trial. Green, 301 S.C. at 352, 392 S.E.2d at 160. On rehearing, petitioner protested that he had used all his peremptory strikes and, under existing state precedent, this was all that was needed to show reversible error in the improper qualification of a juror. We summarily denied the petition for rehearing.

Petitioner claims this decision applied new law and, further, it was law that was applied only to him in light of our subsequent decision in State v. Short, 333 S.C. 473, 511 S.E.2d 358 (1999). In Short, we held no actual prejudice need be shown to establish reversible error for the deprivation of a peremptory strike. Petitioner contends Short vitiates the prejudice analysis used in his direct appeal. He requests habeas relief from this Court on the ground our 1990 decision in his case was "a legal fluke" that violated his constitutional rights.

ISSUE

Has petitioner shown a denial of fundamental fairness that supports the grant of habeas corpus relief?

DISCUSSION

Standard for habeas relief

Habeas relief will be granted only for a constitutional claim rising to the level of "a violation, which in the setting, constitutes a denial of fundamental fairness shocking to the universal sense of justice." Gibson v. State, 329 S.C. 37, 39, 495 S.E.2d 426, 428 (1998) (citing Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990)

).

Break from precedent in petitioner's direct appeal

Our 1990 decision in petitioner's case sets out a three-step analysis on the issue of juror qualification. The defendant must first show he exhausted all of his peremptory challenges; if all peremptory strikes were used, we will consider whether the juror was erroneously qualified. If the juror was erroneously qualified, the defendant must then demonstrate he was deprived of a fair trial. We found Juror Canty should have been disqualified because voir dire indicated he was racially biased. We concluded, however, that petitioner failed to satisfy the third requirement for reversal—that he was deprived of a fair trial—because the erroneously qualified juror did not in fact sit on the jury. Petitioner therefore failed to show prejudice from Juror Canty's erroneous qualification.

Petitioner argues that before the decision in his case, we did not apply this third step of the analysis and would have reversed where the defendant demonstrated only the first two steps-that he used all his peremptory strikes and that the juror was erroneously qualified. He relies primarily on State v. Sanders, 103 S.C. 216, 88 S.E. 10 (1916). In Sanders, we reversed where a juror was erroneously qualified, the defendant struck the juror, and the defendant exhausted all his peremptory strikes. We essentially presumed prejudice from the defendant's exhaustion of his peremptory strikes.¹ Petitioner claims under this precedent, the fact Juror Canty did not sit should not have been considered.

The State, however, argues there is intervening precedent of this Court undermining the rule in Sanders by the time petitioner's direct appeal was decided in 1990. In State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), overruled on other grounds, State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998),

we found the defendant had failed to show prejudice from the refusal to allow a belated peremptory strike because there was no showing of any juror bias. We relied on Plath in 1982 and held in State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982), that where the defendant had suffered no "actual juror prejudice," his motion for additional peremptory strikes was properly denied. The State claims these cases indicate the deprivation of a peremptory strike would no longer be treated as reversible error per se, thus undermining the prong of the analysis for improperly qualified jurors that required no prejudice based on the exhaustion of all peremptory strikes.²

In any event, assuming our 1990 decision in petitioner's case broke from precedent and applied a new procedural rule, the question is: Does the overruling of precedent and the application of a new rule violate any constitutional right? The answer to this question is clearly no. The United States Supreme Court, for instance, in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), overruled its own precedent and applied a new rule to the defendant's detriment allowing the admission of victim impact evidence in a death penalty case. The Court noted that stare decisis is not "an inexorable command." 501 U.S. at 828,111 S.Ct. 2597,115 L.Ed.2d 720. Where the issue is a rule of procedure, the Court is even less constrained by precedent because a procedural rule does not serve as a guide to lawful behavior and does not alter primary conduct. Hohn v. United States, 524 U.S. 236, 251, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998); United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); Payne, 501 U.S. at 828,111 S.Ct. 2597,115 L.Ed.2d 720. No constitutional right is implicated where precedent is overruled in favor of the application of a new procedural rule.

In conclusion, even if our three-step analysis in petitioner's direct appeal overruled precedent and created a new rule, we violated no constitutional mandate in applying that rule to petitioner. The essential issue in this habeas proceeding is whether there has been a constitutional violation that amounted to a denial of fundamental fairness shocking to the universal sense of justice. We find no denial of fundamental fairness. Petitioner's constitutional right to a fair trial by an unbiased jury was in no way compromised. We find petitioner's argument on this issue without merit.

Effect of Short on the Green analysis

In State v. Short, we held no showing of actual prejudice is required to establish reversible error from the denial of a peremptory challenge. Petitioner relies on Short to argue that under the present state of the law, we would no longer apply the three-step analysis used in his direct appeal.

We recently reiterated this three-step analysis in a decision issued after the decision in Short. See State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).³ In Council, we found no error in the juror's qualification and never reached the prejudice analysis. In citing Green, however, we implicitly acknowledged the continued viability of the three-step analysis. We now confirm that our Green analysis remains valid.

We begin by noting that other states with precedent similar to Short have reached the opposite result suggested by petitioner on the question whether a defendant need only show he used all his peremptory strikes to obtain reversal for the erroneous qualification of a juror who did not sit. These decisions follow the United States Supreme Court's recent opinion in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), which distinguishes the forced use of a peremptory strike from the denial of one.

The Martinez-Salazar case arose in the Ninth Circuit. That circuit has a well-settled rule that a party need not show prejudice from the denial of a peremptory strike. United States v. Annigoni, 96 F.3d 1132 (9th Cir.1996).⁴ Relying on this precedent in Martinez-Salazar, the Ninth Circuit Court of Appeals reasoned that the defendant's Fifth Amendment due process rights were violated...