State v. Davis
| Decision Date | 25 September 1991 |
| Docket Number | No. 23509,23509 |
| Citation | 306 S.C. 246,411 S.E.2d 220 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Wilbert Ray DAVIS, Appellant. . Heard |
Chief Atty. David I. Bruck and Asst. Appellate Defender Joseph L. Savitz, III of the S.C. Office of Appellate Defense, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and William Edgar Salter, III, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for respondent.
Appellant was convicted of murder and conspiracy and sentenced to death. We reverse and remand for a new trial.
The Solicitor exercised four of his five peremptory strikes in selecting the regular jury panel and used one strike in selecting the alternates. All of the strikes were used against female black jurors. In response to appellant's Batson 1 motion, the trial judge found a prima facie showing of discrimination. The Solicitor then offered reasons for the exercise of his strikes which the trial judge found race-neutral.
On appeal, appellant claims the record does not support the trial judge's finding as to juror Ida Burch. We agree.
On voir dire, Juror Burch satisfactorily answered the trial judge's questions regarding her ability to consider the death penalty. The Solicitor then questioned her and elicited the following responses:
Q. If the jury finds the defendant guilty then the same twelve people set the punishment in the case. It's either the death penalty or life imprisonment. Would you be able to sit and make your decision as to which punishment was proper, life imprisonment or the death penalty based on what you heard?
A. Yes.
Q. If, and the law says if the jurors agree that the death penalty is the proper penalty they have to sign a form stating that is their decision. Would you have any trouble in doing that?
A. Well, I might have a little about that. But I would still go by what, as the Judge asked me before, what my opinion [sic]. I listen to the case and I would give my own opinion what is right and what is wrong. So I would still go by what I know, what I think is right.
Q. That is simply what I am asking you. You could decide in a certain case that the death penalty was right?
A. Yes.
Q. And if you decided that that was right you could sign your name stating that was your decision?
A. Yes.
Q. Thank you ma'am.
In explaining his reason for striking Juror Burch, the Solicitor stated:
When it came to the question of whether or not she could sign the form she hesitated and said she might have trouble doing that. And she repeated that on more than one occasion.... She ... showed great reluctance.
It is well-settled that vacillating responses to voir dire questions regarding the death penalty will support the use of a peremptory strike against a Batson challenge. State v. Bell, --- S.C. ----, 406 S.E.2d 165 (1991); State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990); State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989). Where the Solicitor perceives a person will have difficulty imposing the death penalty, he may exercise a peremptory challenge against that juror upon this ground as a racially neutral reason. State v. Bell, supra. Moreover, because the trial judge's findings regarding purposeful discrimination rest largely upon his evaluation of the Solicitor's credibility, we will give those findings great deference. See Hernandez v. New York, 500 U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).
In this case, however, the record indicates the Solicitor's evaluation of Juror Burch's responses on voir dire is not supported by the record. Juror Burch did not demonstrate "great reluctance" regarding her ability to vote for imposition of the death penalty. In fact, in her responses to On appeal, the State relies heavily on Juror Burch's response, when asked whether she would have trouble signing her name if the jury voted for death, that she "might have a little." In making this argument, the State takes this response out of context and ignores the remainder of Juror Burch's response that she in fact could sign her name if she decided a death sentence was appropriate.
questioning, Juror Burch did not vacillate at all in asserting her ability to consider a death sentence.
Because the record does not support the Solicitor's stated reason for striking Juror Burch, we find the trial judge erred in ruling the Solicitor offered a race-neutral reason for the exercise of this strike.
In view of our disposition in this case, we need not consider sentencing phase errors, however, we address the following issues to emphasize basic principles governing the conduct of the sentencing phase of a capital case.
First, appellant requested a charge instructing the jury that its sentencing recommendation would be accepted by the judge and the sentence imposed accordingly. The trial judge refused this request insisting "that's not the law."
Since State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), this Court has required that the trial judge convey to the jury in the sentencing phase of a capital trial the idea that its sentencing recommendation will be followed. This requirement comports with the rule that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2634, 86 L.Ed.2d 231, 239 (1985). Not only did the trial judge refuse appellant's requested charge, nowhere in the record does the trial judge refer to the jury's sentencing decision as anything more than a recommendation. Cf. State v. Sims, --- S.C. ----, 405 S.E.2d 377 (1991); State v. Cain, 297 S.C. 497, 377 S.E.2d 556 (1988); State v. Middleton, 295 S.C. 318, ...
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