Payton v. Kearse

• Decision Date: 09 March 1995
• Docket Number: No. 2380,2380
• Citation: 460 S.E.2d 220,319 S.C. 188
• Court: South Carolina Court of Appeals
• Parties: Edgar PAYTON, Respondent, v. Tina L. KEARSE, Appellant. . Heard

Page 220

460 S.E.2d 220

319 S.C. 188

Edgar PAYTON, Respondent, v. Tina L. KEARSE, Appellant.

No. 2380.

Court of Appeals of South Carolina.

Heard March 9, 1995.

Decided July 17, 1995.

Rehearing Denied Aug. 18, 1995.

Certiorari Granted Ap

Lewis C. Lanier and Paul W. Owen, Jr. both of Horger, Horger & Lanier, Orangeburg, for appellant.

Daniel W. Williams of Bedingfield & Williams, of Barnwell; and J. Paul Detrick of Peters, Murdaugh, Parker, Eltzroth & Detrick, Hampton, for respondent.

HOWELL, Chief Judge:

In this automobile negligence case, the jury returned a verdict of $700,000 actual damages in favor of Edgar Payton against Tina Kearse. Kearse appeals, raising several issues relating to the jury selection, the admissibility of evidence, the jury charge, and the directing of a verdict for Payton on liability. We affirm.

The accident occurred on September 7, 1990, in Allendale County. Payton, a farmer, was checking some of his fields and helping to move his combine to another location. He was following the combine in his personal vehicle on Highway 125. The weather was clear and sunny. Payton attempted to pass the combine, but could not do so because of oncoming traffic. He pulled back into his lane of travel behind the combine. The vehicle driven by Kearse was approaching Payton from the rear. Kearse testified that she saw Payton attempt to pass the combine and also saw him pull back into his lane. When Payton attempted to pass, Kearse reduced her speed, but after Payton returned to his lane, she "picked [her] speed back up." Kearse testified that she applied her brakes, but struck Payton in the rear after he pulled back into his lane of travel. She admitted she was traveling too fast and could not stop. The trial judge granted Payton's motion for a directed verdict on liability.

After the accident, Payton began experiencing problems with hearing loss, ringing in the ears, and dizziness. He also suffered from neck pain and decreased range of motion in his neck. Payton was treated by several doctors, including an otolaryngologist, an orthopaedic surgeon, and a neurologist. The otolaryngologist testified that Payton had bilateral sensory neural deafness with secondary tinnitus. It was his opinion that the accident caused the problem and that the tinnitus, hearing loss, and dizziness would probably get worse so that Payton could not return to farming.

The neurologist testified that Payton had a C6-C7 disk herniation with compression of C7 bilaterally and a concussion with post-concussive vertigo. The neurologist also found Payton had some weakness in his arms and hands. A CT scan confirmed damage to Payton's neck at the C6-C7 level. Because Payton's dizziness and tinnitus persisted, he underwent an arteriogram to determine whether his vertebral arteries had been damaged in the accident. While the arteriogram was normal, Payton's femoral nerve was damaged during the test, causing pain and numbness in his right thigh. The neurologist testified that Payton's problems had persisted for two years after the accident and that, in his opinion, Payton would be limited in what he could do in the future and could not return to work as a farmer. Payton became depressed after the accident, and was referred to a psychiatrist, who prescribed medication and therapy. He testified that Payton was suffering from a major depression due to his injuries and was experiencing a loss of self esteem because he could not work. A vocational rehabilitation counselor also testified that Payton was totally vocationally disabled in his present condition.

I.

Kearse raises several issues on appeal with respect to the jury selection process. In order to address these issues, it is necessary to understand the rather tortured procedural history of this case. Payton is a resident of Barnwell County, and the action was originally filed in Barnwell County. Kearse moved for and was granted a change of venue to Allendale County, where she resided. After the case was transferred to Allendale, Payton hired Paul Detrick to serve as co-counsel on his case. Mr. Detrick practices law in Allendale and Hampton counties, and also serves as a part-time assistant solicitor in Hampton, Allendale, and Jasper counties. Kearse then again sought to change venue from Allendale County to Aiken County, on the grounds that many of the witnesses lived or worked in Aiken County, and that Detrick's position as solicitor and "champion of the people" would prevent her from receiving a fair trial. This motion was denied.

Prior to jury selection, the court posed a number of voir dire questions to the jury. The court asked several questions about pending criminal cases, plea agreements, and pre-trial intervention. No member of the venire responded to these questions. However, after a list of twenty potential jurors was drawn, Kearse challenged the entire venire, contending that several members of the venire did not respond truthfully to voir dire questions concerning criminal charges. According to Kearse, Mr. Priester pleaded guilty to a second offense driving under the influence; Mr. Washington had pending criminal charges; and Mr. Van Courtland had been placed in pre-trial intervention for charges of receiving stolen goods and carrying a pistol. Mr. Van Courtland's mother was also a member of the venire, and did not respond to a question relating to family members of persons who had criminal charges. The court noted it had already excused Mr. Washington from service, and then removed Mr. Priester and Mr. Van Courtland from the pool before he requestioned the venire and drew a second list of jurors. After the jury was selected and sworn, Kearse renewed her motion to quash the venire because Mrs. Van Courtland had been seated on the jury. The court denied the motion to quash, but replaced her with an alternate. Kearse also argued that Mr. Robinson, another member of the venire, had a criminal record which he did not disclose to the court during questioning. However, Kearse did not challenge Mr. Robinson after the first voir dire, and did not request that Mr. Robinson be removed from the venire. Moreover, Mr. Robinson did not serve on the jury because Kearse exercised a peremptory strike against him. Thus, none of these challenged members of the venire served on the jury.

After the parties exercised their jury strikes on the second list, Kearse challenged Payton's use of his peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court held a hearing and determined that Payton exercised the strikes in a racially neutral manner. After the jury was sworn, Payton presented his first witness, a highway patrolman. After he testified, one of the jurors notified the court she had a conflict of interest because she thought Payton was her fourth cousin. The court removed her from the jury and seated an alternate juror. Kearse moved for a mistrial and renewed her earlier motions, arguing that the juror had infected the jury panel, and that it would be impossible for Kearse to obtain a fair trial given the jury panel's failure to accurately respond to voir dire. These motions were denied.

After the trial and during argument on new trial motions, Kearse advised the court that one of the seated jurors did not disclose his criminal record during voir dire. Kearse again argued she was denied a fair trial because so many members of the venire lied under oath. The trial court denied the new trial motion in all respects with regard to the jury selection process.

On appeal, Kearse challenges the trial court's failure to quash the venire, grant a change of venue, grant a mistrial, or grant a new trial. Kearse's arguments concern (1) the alleged failure of a number of the venire to accurately respond to voir dire questions; (2) Payton's exercise of peremptory challenges; and (3) the court's failure to grant a mistrial after a juror revealed she was related to Payton, and after it was discovered that a seated juror did not truthfully respond to voir dire. We address each issue individually.

(a)

Kearse argues the court erred in its ruling on her various motions ¹ with regard to the venire. She asserts a significant number of potential jurors failed to respond accurately to voir dire and, therefore, she was denied her right to a fair and impartial jury. Kearse contends, in essence, that because some members of the venire were not truthful, the other members of the venire likewise must have lied. In her brief, Kearse maintains that

[t]he true irony of this case is that the information that revealed [the challenged jurors'] indiscretions was publicly available. Which leaves the Appellant with a single question[:] If jurors are willing to misrepresent themselves under oath before the court when information to prove that they are lying is publicly available then what other interests in the case are the remaining jurors withholding?

We do not accept this argument, and refuse to impute any misconduct of certain individuals to the entire venire. The burden is upon a person challenging the jury array to offer strong evidence in support of his motion; failure to do so is fatal. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974). Moreover, the objection must go to the entire array, not merely to individual persons. Id. Here, objections to specific venire members were handled by the court either removing the person from the venire or replacing a chosen juror with an alternate. Further, Kearse exercised one of her peremptory strikes to remove an objectionable person from the list of potential jurors. Kearse has presented no evidence that the venire itself was tainted. Rather, we conclude the jury selection process worked appropriately to ensure a fair and impartial jury, given the court's responses to raised objections and the commendable efforts of Kearse's counsel to prepare for jury selection. We therefore find the trial court properly...