State v. Casey, No. 2612

• Court: Court of Appeals of South Carolina
• Writing for the Court: HOWELL
• Citation: 325 S.C. 447,481 S.E.2d 169
• Decision Date: 07 November 1996
• Docket Number: No. 2612
• Parties: The STATE, Respondent, v. Howard Nelson CASEY, Appellant. . Heard

Page 169

481 S.E.2d 169 325 S.C. 447 The STATE, Respondent,
v.
Howard Nelson CASEY, Appellant. No. 2612. Court of Appeals of South Carolina. Heard Nov. 7, 1996.
Decided Jan. 13, 1997.
Rehearing Denied Feb. 21, 1997.
Certiorari Granted in Part Nov. 10, 1997.

Page 170

[325 S.C. 449] L. Scott Harvin, Charleston, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G. Robert Deloach, III, Columbia; and Solicitor David P. Schwacke, N. Charleston, for respondent.

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[325 S.C. 450] HOWELL, Chief Judge:

Howard Casey was convicted of driving under the influence (DUI). He appeals the trial court's denial of his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion challenging five of the State's peremptory strikes. We affirm.

I.

At the close of jury selection, Casey moved under Batson to challenge the State's exercise of all of its peremptory strikes against male venirepersons. At the hearing on Casey's motion, the court asked the solicitor to provide a "sex neutral reason" for the challenges. The solicitor stated that three of the males (Nos. 7, 215, and 78) were stricken because of prior DUI convictions, and none of the females who were empaneled had DUI convictions. Casey moved to have the State produce the criminal records of the female jurors, but the court denied the motion, accepting the solicitor's representations as an officer of the court. The solicitor then explained that he struck another male (No. 9) because he had served on a case earlier in the week. The court asked, "didn't you also leave some jurors" who recently served? The solicitor responded, "Only one to my knowledge ... There was one I missed and that is because by the time I checked my list I was being asked the question, and I just answered." The court reminded the solicitor that, "Well, you missed Ms. Heyward too." The solicitor replied, "I may have, Your Honor, that was the intent.... There is no intrigue here. It was just a missing number." The court responded, "I understand. You are advising the Court it is inadvertence." The solicitor's stated reason for the fifth strike was that because the juror "showed up every day here in court in a white t-shirt," the solicitor felt the juror was inappropriately dressed "for the court." Casey's counsel responded that, if his memory served him, "at least one other member in the panel ... may have had a blue t-shirt on," and there was no reason to draw a distinction between a white and a blue t-shirt. The court concluded the hearing by finding no violation: "I believe [the solicitor] did not exercise his strikes purely on a sexually discriminatory matter."

[325 S.C. 451] Casey raises three issues on appeal: (1) the court erred in finding no discrimination where the State's proffered reason for one of the strikes was mere inadvertence; (2) under the circumstances of the case, the court's reliance on the solicitor's credibility was insufficient; and (3) the State should have been required to disclose the jurors' criminal records where one of the solicitor's proffered explanations was based on criminal records. ¹

II.

The rule concerning the use of peremptory challenges announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has evolved considerably in both federal and state courts over the past ten years. However, the current standard still retains the familiar three part framework: (1) 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; (2) the proponent of the strike must proffer a race or gender neutral explanation; and (3) the opponent of the strike must show that the facially neutral explanation given was mere pretext. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996). This analysis enables the trial court to determine whether Batson 's central purpose of prohibiting purposeful, invidious discrimination has been violated. State v. Gill, 319 S.C. 283, 460 S.E.2d 412 (Ct.App.1995), cert. granted, (Feb. 9, 1996).

Recent federal and state precedents have further clarified Batson 's second and third steps. Under step two, the proponent of the challenge does "not have any burden of presenting reasonably specific, legitimate explanations for the strikes." State v. Easler, 322 S.C. 333, ----, 471 S.E.2d 745, 755 (Ct.App.1996) (citations omitted). While "[m]erely denying a discriminatory

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motive" is insufficient, State v. Watts, 320 S.C. 377, 380, 465 S.E.2d 359, 362 (Ct.App.1995), the proponent of the strike need only present race or gender neutral [325 S.C. 452] reasons. Easler, 322 S.C. 333, 471 S.E.2d 745. Nor does the second step demand "an explanation that is persuasive, or even plausible," and the trial court need not terminate "the inquiry at step 2 when the race [or gender] neutral reason is silly or superstitious." Purkett, 514 U.S. at ----, 115 S.Ct. at 1771. Once the race or gender neutral reason is given, the opponent of the strike, as movant, still carries "the ultimate burden of showing purposeful discrimination," and must convince the trial court of pretext. Adams, 322 S.C. at ----, 470 S.E.2d at 372. The determination of whether the minimum quantum of evidence has been produced under the third prong is flexible, for the trial court's ruling turns on an examination of "the totality of the facts and circumstances in the record," Easler, 322 S.C. at ----, 471 S.E.2d at 753 (citations omitted), including the "credibility and demeanor" of the strike's proponent, State v. Kelley, 319 S.C. 173, 176-78, 460 S.E.2d 368, 370 (1995), and the plausibility of a neutral, but otherwise unpersuasive, reason. Adams, 322 S.C. 114, 470 S.E.2d 366.

Before turning to the issues on appeal, we note that the State does not dispute that Casey set forth a prima facie showing entitling him to a Batson hearing as to all five strikes. See State v. Chapman, 317 S.C. 302, 306, 454 S.E.2d 317, 320 (1995) (Any "person regardless of race or gender may set forth a Batson claim."). We point this out, however, for though this...