State v. Cherry

• Decision Date: 12 February 2001
• Docket Number: No. 3296.,3296.
• Citation: 577 S.E.2d 719,353 S.C. 263
• Parties: The STATE, Respondent, v. Yukoto Eugene CHERRY, Appellant.
• Court: South Carolina Court of Appeals

353 S.C. 263

577 S.E.2d 719

The STATE, Respondent, v. Yukoto Eugene CHERRY, Appellant.

No. 3296.

Court of Appeals of South Carolina.

Heard October 11, 2000.

Decided February 12, 2001.

Jeanne A. Pearson, of Kennedy, Covington, Lobdell & Hickman; Thomas F. McDow, both of Rock Hill; and Chief Attorney Daniel T. Stacey, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Toyya Brawley Gray, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.

STILWELL, Judge:

A jury convicted Yukoto Eugene Cherry for possession of crack cocaine with intent to distribute. The trial court sentenced him to five years imprisonment, imposed a fine of $25,000, and recommended he receive drug abuse treatment while in prison. Cherry appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

Just before midnight on July 31, 1998, Officer Steven Parker of the Rock Hill Police Department stopped a car driven by Cherry's sister for two traffic violations. Cherry was a passenger in the back seat. While Officer Parker sat in his patrol car writing citations, another backup officer arrived and saw Cherry's sister stuff a pistol into a diaper bag. After arresting her, the officers ordered the passengers out of the car to check for additional weapons. Cherry had no weapons, but Officer Parker discovered a small bag containing approximately eight rocks of crack cocaine in his watch pocket. He also seized $322 in cash from Cherry.

Cherry was indicted for possession of crack cocaine with intent to distribute and possession of crack cocaine within proximity of a public park. At the conclusion of the State's case, the trial court granted Cherry's motion for a directed verdict on the charge of possession within proximity of a public park. The court denied his motion for a directed verdict on the charge of possession with intent to distribute and the jury found him guilty. Cherry asserts a number of alleged errors on appeal.

DISCUSSION

I. Seating Arrangements

Cherry asserts the trial court erred in denying his request to sit at the table closest to the jury. We disagree.

Immediately after the prosecutor called Cherry's case, his counsel made a motion for the defense to sit at the table closest to the jury. At the time, the prosecution occupied that table. After entertaining argument from both sides, the court denied Cherry's request, finding the parties were seated "very appropriately."

Cherry correctly notes this precise issue was raised on appeal to our supreme court in State v. Corn, 215 S.C. 166, 54 S.E.2d 559 (1949). However, his reliance on that case is misplaced. The supreme court reversed the conviction, but specifically declined to address several issues, including the question of whether the defense was improperly required to relinquish the seats closest to the jury. Id. at 172, 54 S.E.2d at 561. We are convinced that nothing in the supreme court's opinion can be construed as a ruling on that issue.

We find the trial court did not abuse its discretion in Srefusing to allow Cherry to occupy the table closest to the jury. It is tradition and custom in this state that the party with the primary burden of proof sits at the table in closest proximity to the jury. Furthermore, "[t]he general rule in this State is that the conduct of a criminal trial is left largely to the sound discretion of the presiding judge and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way." State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982). Clearly, the court's discretion extends to the parties' seating arrangements. See also State v. Lee, 255 S.C. 309, 313, 178 S.E.2d 652, 654 (1971)

(holding court did not abuse its discretion by refusing defendant's request to remove the victim's brother from the prosecution's table). The trial court's ruling did not prejudice Cherry's rights. His motion was properly denied.

II. Voir Dire Questions

Cherry argues the trial court erred in refusing to ask his proposed voir dire questions. We disagree. Prior to jury selection, Cherry's counsel submitted eight written questions which he requested the court ask the potential jurors on voir dire. The questions asked whether the jurors understood the importance of juror honesty; whether they would report a juror who engaged in misconduct; whether they were willing to presume a defendant innocent until proven guilty despite the fact that he had been arrested by the police; whether they believed police officers are more honest than other citizens; whether the defendant's failure to testify would affect their views of his guilt or innocence; whether they were biased against African-Americans; whether they were biased for or against any of the attorneys; and whether they had ever had more than $300 on their person. The court denied the request, ruling the questions regarding potential biases involving African-Americans or the attorneys involved were covered by the court's standard voir dire questions, and that the others were inappropriate.

The questions to be asked on voir dire are provided by S.C.Code Ann. § 14-7-1020 which states in pertinent part:

The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein....

S.C.Code Ann. § 14-7-1020 (Supp.2000).

The trial court has the responsibility to focus the scope of voir dire examination as described in section 14-7-1020. Wilson v. Childs, 315 S.C. 431, 438, 434 S.E.2d 286, 291 (Ct.App.1993). "After the statutory questions have been asked and answered, any further examination of [the jury] on voir dire must be left to the discretion of the trial judge, which is subject to review only for abuse thereof." State v. Bethune, 93 S.C. 195, 199, 75 S.E. 281, 282 (1912). As a general rule, "the trial court is not required to ask all voir dire questions submitted by the attorneys." Wall v. Keels, 331 S.C. 310, 317, 501 S.E.2d 754, 757 (Ct.App.1998). It appears Cherry's proposed questions were designed to establish a juror profile and to influence those jurors who would be selected rather than to uncover bias. Cherry does not argue that the court failed to ask the statutorily required questions. We are confident the court met the requirements of section 14-7-1020 and find no abuse of discretion in its refusal to ask the additional questions.

III. Batson Motion

Next, Cherry maintains the trial court erred in its denial of his Batson¹ motion. We disagree.

After jury selection, Cherry moved to quash the jury, arguing the State used its peremptory challenges in a racially discriminatory manner by striking non-whites. The assistant solicitor responded that the three strikes Cherry complained of were exercised against persons with criminal convictions for assault and battery, passing fraudulent checks, and driving under the influence. The court found those reasons racially neutral and asked if Cherry had any evidence that the stated reasons were mere pretext.

Cherry's counsel asked to conduct additional voir dire to determine whether any member of the jury had been convicted of the same offenses. After the court denied that request, the assistant solicitor offered the defense an opportunity to look at the NCIC background checks performed on each juror. Although defense counsel indicated he wanted to examine those documents, it does not appear he did so immediately as offered. The assistant solicitor then informed the court that none of the seated jurors had a record of the criminal convictions in question, and the court announced the reports would be made a part of the record. The parties dispute whether this was ever done. In a post trial motion, Cherry argued that because the NCIC reports dated the day of jury selection were not immediately admitted into the record, the court's order that those specific reports become part of the record was an impossibility.

The trial court must hold a Batson hearing when members of a cognizable racial or gender group are struck and the opposing party requests a hearing. State v. Haigler, 334 S.C. 623, 629, 515 S.E.2d 88, 90 (1999). During the hearing, the proponent of the peremptory strikes must present a racially neutral explanation. Id.; State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996). Once this is done, the burden shifts to the strike's opponent to show the reason or reasons given were merely pretextual. Haigler, 334 S.C. at 629,515 S.E.2d at 91; Adams, 322 S.C. at 124,470 S.E.2d at 372. Thus, "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Adams, 322 S.C. at 124,470 S.E.2d at 372 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). If "the record does not support the solicitor's stated reason upon which the trial judge has based his findings, however, those findings will be overturned." State v. Tucker, 334 S.C. 1, 9, 512 S.E.2d 99, 103 (1999).

We agree with the trial court that the reasons the assistant solicitor offered to explain the strikes were facially race-neutral. Thus, the burden shifted back to Cherry to prove pretext. He offered no evidence of pretext and thus simply failed to meet his burden. The record supports the State's explanations for the strikes. Moreover, we are not persuaded to reverse the court's ruling because the proper documents bearing certain dates were never admitted into the record. The record reflects the State offered Cherry an opportunity to review the exact documents it used to strike the jurors and that he failed to seize this opportunity. Furthermore, the court's ruling that the State's explanations...