State v. Elmore, No. 23064

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: CHANDLER; GREGORY; FINNEY; FINNEY
• Citation: 300 S.C. 130,386 S.E.2d 769
• Parties: STATE of South Carolina, Respondent, v. Edward Lee ELMORE, Appellant. . Heard
• Decision Date: 21 March 1988
• Docket Number: No. 23064

Page 769

386 S.E.2d 769 300 S.C. 130 STATE of South Carolina, Respondent,
v.
Edward Lee ELMORE, Appellant. No. 23064. Supreme Court of South Carolina. Heard March 21, 1988.
Decided Aug. 21, 1989.

[300 S.C. 131] John H. Blume, David I. Bruck, S.C. Office of Appellate Defense, Columbia, and Billy J. Garrett, Jr., Greenwood, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, and Sol. W. Townes Jones, IV, Greenwood, for respondent.

CHANDLER, Justice:

Edward Lee Elmore (Elmore) appeals his third death sentence for the January 16,

Page 770

1982, murder of Dorothy Edwards. ¹ [300 S.C. 132] This case consolidates his appeal with the sentence review mandated by S.C.Code Ann. § 16-3-25 (1985). We affirm. ISSUES

1. Did the Solicitor exercise peremptory challenges to strike black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)?

2. Did the trial court err in qualifying juror Johnson and in refusing to qualify juror Watkins?

3. Did the trial court err in refusing to replace juror Jones with the alternate juror?

4. Did the trial court err in refusing to allow Elmore to introduce evidence regarding counsel's inadequate investigation?

5. Did the Solicitor's closing argument deprive Elmore of a fair sentencing trial?

I. PEREMPTORY CHALLENGES

The jury which returned the death sentence consisted of eleven whites and one black. Although the Solicitor used peremptory challenges in striking two black jurors, he accepted the first black presented. Also, a black was seated as the alternate juror.

Elmore contends that the Solicitor exercised peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree.

Under Batson, the defendant has the burden of establishing a prima facie case of purposeful racial discrimination in the prosecution's selection of a jury venire. Once this showing is made, the burden shifts to the State to provide a racially neutral explanation for challenging black jurors.

Here, the trial judge found that Elmore did not make a prima facie showing of discrimination. This determination will not be reversed absent a showing of an abuse of discretion. State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987); State v. Smith, 293 S.C. 22, 358 S.E.2d 389 (1987).

The voir dire of the 41 persons drawn must be viewed in its entirety. It must not be considered with focus upon three isolated examples. We disagree with the dissent that the [300 S.C. 133] Solicitor's interrogation of potential jurors constituted a prima facie case of discrimination.

Moreover, the Solicitor presented a racially neutral explanation for challenging the two black jurors, to wit, their vacillating responses to his questions regarding the death penalty.

II. QUALIFICATION OF JURORS

Elmore asserts error in the trial judge's refusal to disqualify juror Annie Johnson for cause. Failure to exhaust his peremptory challenges at trial, however, precludes his raising this claim on appeal. State v. South, 285 S.C. 529, 331 S.E.2d 775 (1985); State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983).

Elmore further contends the trial judge erred in disqualifying juror Grace Watkins for cause, based upon her statements during voir dire that she could not sign her name to a verdict that the defendant be sentenced to death.

A prospective juror may be excluded for cause if her views on capital punishment would prevent or substantially impair the performance of her duties as a juror. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986) [citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ]. In view of her statements during voir dire, Mrs. Watkins was properly excused for cause. See State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987).

Page 771

III. REFUSAL TO REPLACE JUROR WITH ALTERNATE

Elmore next contends that the trial judge erroneously denied his request to remove Mattie Jones from the jury and to replace her with the alternate juror.

Mrs. Jones was accepted by the defense as a juror notwithstanding, in Elmore's presence, she was made aware during voir dire that Elmore had been found guilty of burglary and criminal sexual conduct at a previous trial. Following jury selection, Elmore moved to have her replaced due to her awareness of these convictions.

A defendant may not challenge for cause after accepting a juror with knowledge of an objection to qualification. See [300 S.C. 134] State v. Johnson, 248 S.C. 153, 149 S.E.2d 348 (1966). Accordingly, the trial judge properly refused to remove Mrs. Jones.

IV. EVIDENCE OF INADEQUATE INVESTIGATION

The trial judge refused to allow introduction of evidence that Elmore's case was inadequately investigated by counsel. Elmore contends this evidence constituted mitigation under State v. Stewart, 288 S.C. 232, 341 S.E.2d 789 (1986).

Elmore's reliance upon Stewart is misplaced.

Stewart permits the introduction in the sentencing phase of any evidence previously presented in the guilt phase. Here, Elmore does not seek to re-present guilt phase evidence. His claim falls within that of ineffective assistance of counsel, which must be reserved for post-conviction relief.

V. SOLICITOR'S CLOSING ARGUMENT

Finally, Elmore contends he was denied a fair sentencing trial by the Solicitor's closing argument. Specifically he excepts (1) to comments concerning the victim and (2) to entreaties that the jury not "take the easy way out." We have reviewed the entire argument and find it to be within acceptable limits. See State v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987); State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984).

VI. PROPORTIONALITY REVIEW

Elmore's sentence is not arbitrary, excessive, or disproportionate. Additionally, the evidence supports the jury's finding of aggravating circumstances.

AFFIRMED.

GREGORY, C.J., and HARWELL and TOAL, JJ., concur.

FINNEY, J., dissents in separate opinion.

FINNEY, Justice, dissenting:

I respectfully dissent. In my view, the appellant established a prima facie showing of racial discrimination in the jury selection process, and the state failed to successfully [300 S.C. 135] rebut the inference of discrimination in the exercise of its peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987). See also State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987) (Ness, C.J., dissenting).

Appellant was sentenced to death by a jury of eleven white jurors and one black juror. ¹ The state exercised only two peremptory challenges, both against black jurors. Appellant's counsel objected on the ground that the jurors were excluded because of their race. Although the trial court ruled that appellant had not established a prima facie case of discrimination, it required the state to set forth reasons for exercise of its peremptory challenges.

The record reveals that the solicitor's voir dire questioning evinces a more rigorous and detailed examination of black jurors. For example, the voir dire questioning of a black juror accepted by the state comprises approximately fifteen pages of transcript; whereas, the voir dire questioning for a white juror comprises approximately two pages. ² Furthermore, a comparison

Page 772

of the context of the voir dire questions shows obvious disparate treatment of black and white jurors. ³ See State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988) (Finney, A.J., dissenting). This type of questioning pervaded the entire voir dire aspect of appellant's trial.

In Batson, supra, the United States Supreme Court sought to restrict a prosecutor's use of peremptory challenges when such challenges are used against a potential juror "solely on account of ... race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 106 S.Ct. at 1719. In Batson, the Supreme Court promulgated the following standard for determining whether a defendant has established a prima facie case of discriminatory jury selection. First, a defendant must show that he is a member of a cognizable [300 S.C. 136] racial group and that the prosecutor exercised peremptory challenges to remove at least one member of the defendant's race from the venire. Second, a defendant may rely on evidence, as to which there can be no dispute, that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " Batson, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). Finally, a defendant must show that the aforesaid facts "and any other relevant circumstances raise an inference that the prosecutor used [the peremptory challenge] to exclude the veniremen from the petit jury on account of their race." Batson, 106 S.Ct. at 1723. See also State v. Jones, supra. The Batson court found that "relevant circumstances" include a discernible pattern of peremptory challenges and a prosecutor's questions and statements during voir dire questioning....