State v. Franklin

Decision Date21 September 1994
Docket NumberNo. 24190,24190
Citation456 S.E.2d 357,318 S.C. 47
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Ellis FRANKLIN, Appellant. . Heard

Chief Atty. Daniel T. Stacey and Asst. Appellate Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, Columbia, for appellant.

T. Travis Medlock, Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., Columbia, and Wade S. Kolb, Jr., Solicitor, Third Judicial Circuit, Sumter, for respondent.


Petitioner asks this Court for a rehearing in State v. Franklin, Op. No. 24190 (S.C.Sup.Ct. filed January 30, 1995). We grant the petition. The majority adheres to the original majority opinion, and the dissenter files an amended dissent.

The original opinion and the amended dissent shall be refiled and published in the Davis Advance Sheet.


/s/ Ernest A. Finney, Jr., C.J.

/s/ Jean M. Toal, A.J.

/s/ James E. Moore, A.J.

/s/ John H. Waller, Jr., A.J.

/s/ A. Lee Chandler, A.A.J.

TOAL, Justice:

A jury convicted Ellis Franklin of murder. The same jury, in a bifurcated proceeding, found the aggravating circumstances of murder while in the commission of criminal sexual conduct, murder while in the commission of burglary, murder while in the commission of larceny with the use of a deadly weapon, and murder while in the commission of physical torture. Franklin was sentenced to death. We affirm.


Jennifer Martin attended her cousins's wedding on the afternoon of August 30, 1991. After the wedding, Martin together with several members of her family returned to the home of Martin's maternal grandmother. The other family members dispersed, but Martin remained at the home of her grandmother until shortly after 11:00 p.m. Martin then drove a short distance to her mother's home to use the telephone. 1 She telephoned her fiance around 11:13 p.m. The conversation lasted approximately ten minutes.

Shortly after midnight the same evening, Martin's automobile was found across town from her mother's home. The automobile was parked with the engine running, lights on, and doors open abutting a building. After determining the ownership of the automobile, the police proceeded to the home of Martin's mother. There the police found the badly beaten, partially nude body of Jennifer Martin. Ellis Franklin was arrested the following morning.

The jury found Ellis Franklin guilty of murder and the following aggravating circumstances: murder while in the commission of criminal sexual conduct, murder while in the commission of burglary, murder while in the commission of larceny with use of a deadly weapon, and murder while in the commission of physical torture. Franklin was sentenced to death. This appeal followed.




Upon motion of the solicitor, the trial judge ordered Franklin to submit to a mental examination pursuant to S.C.Code Ann. § 44-23-410(1) or § 44-23-410(2) (1990) to determine Franklin's competency to stand trial. 2 The state entered the resulting report into the record. Franklin's attorney objected to the report as hearsay. The trial judge overruled the objection and found Franklin competent to stand trial.

Section 44-23-410(2) specifically provides "[t]he report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430." See also State v. Lee, 274 S.C. 372, 264 S.E.2d 418 (1980) (mental examination reports submitted pursuant to S.C.Code Ann. § 44-23-410(2)). Thus, the report is a statutory exception to the rule against hearsay. See Sangster v. State, 312 Md. 560, 541 A.2d 637 (1988) (competency report properly admitted under statute). We find Franklin's argument meritless and affirm.


At the conclusion of the drawing of the jury, both the defense and prosecution made Batson motions. Following the Batson hearing, the trial judge sustained the defense motion as to one black female. The trial judge also sustained the prosecution's motion as to three white males and one white female. The jury panel was quashed and a new list was drawn from the entire qualified panel. The qualified jurors from which the list was drawn included all those who were previously the subject of the Batson motions.

Defense counsel attempted to strike the first white male presented who the trial judge previously ruled was stricken in violation of Batson. The trial judge disallowed the strike and sat the juror. Franklin claims this was error. We disagree.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court declared striking a venire person solely on the basis of race unconstitutional. Batson specifically left the remedy for striking a juror based upon race to each state. Id. at 99, n. 24, 106 S.Ct. at 1724-25, n. 24, 90 L.Ed.2d at 90, n. 24. South Carolina first addressed the remedy for Batson violations in State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987). In Jones, we held that when the solicitor violates Batson, "the jury shall be quashed and the process of selecting the jury shall start de novo." Id. at 58, 358 S.E.2d at 704. Jones recognized that "members of the tainted jury and all persons who were struck" may be placed back in the jury venire. Id. at 58, n. 3, 358 S.E.2d at 704, n. 3. Jones, however, did not address the procedure when, as here, a party attempts to strike from the second venire a person previously ruled stricken in violation of Batson.

Since our decision in Jones, the principles enunciated in Batson have been expanded. 3 The Supreme Court has held that the juror has a constitutional right not to be excluded from the jury because of race or gender. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Thus, "a party's right to use preemptory challenges can The majority of jurisdictions addressing the question of whether the trial judge may seat a juror improperly excluded in violation of Batson have found no error in seating such a juror. 4 The rationale for allowing the trial judge the discretion to seat the improper juror is sound. As noted in People v. Moten, 159 Misc.2d 269, 603 N.Y.S.2d 940 (1993):

be subordinated to a venire person's constitutional right not to be improperly removed from jury service." Jefferson v. State, 595 So.2d 38, 41 (Fla.1992). "While striking the venire and beginning selection over with a new jury pool may protect the constitutional rights of the defendant, it does nothing to remedy the recognized discrimination against those improperly removed from the jury." Id. at 40.

To hold otherwise would inadvisably reward a party for his own improper conduct, as would the declaration of a mistrial, which, in my view is an inappropriate remedy where the court is confronted with a valid Batson ... challenge. The declaration of a mistrial, as an alternative to a difficult decision involving a remedy for a Batson ... violation, merely avoids the critical issue and is inappropriate since such a declaration would give the offending party exactly what he wanted, namely, a different jury panel. Thus, it would reward him for the very discrimination which Batson .. [was] designed to prevent. [emphasis added].

Id., 603 N.Y.S.2d at 947.

Nor do we believe the defendant's constitutional right to a fair and impartial jury is in any way violated by this procedure. "It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race." Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33, 50 (1992). "Peremptory challenges are not constitutionally protected fundamental rights." Id. Franklin was not denied his peremptory challenge. Rather, he was simply prohibited from exercising it in a racially discriminatory manner. We hold once a new venire has been selected in compliance with Jones, supra, "that it is within the trial judge's discretion to fashion the appropriate remedy under the particular facts of each case and, as long as neither party's constitutional rights are infringed, that remedy may include the seating of an improperly challenged juror." Jefferson, 595 So.2d at 41.

Our decision today does not impact Jones. Jones did not consider the case where a party attempts repeatedly to strike a prospective juror in violation of Batson. We do not accept the argument of Franklin and the dissent that Jones mandates the continued right to discriminate against a prospective juror on an unconstitutional basis. Nor do we accept the proposition that Jones requires the trial judge in all instances to "give the offending party exactly what he wanted, namely," a jury panel which unconstitutionally excludes a particular juror. People v. Moten, 159 Misc.2d 269, 603 N.Y.S.2d 940, 947 (1993).

Here, the jury selection process began "a second time" as mandated by Jones. See BLACK'S LAW DICTIONARY 392 (5th ed. 1979) (De novo. Anew; afresh; a second time). Only defense counsel's unconstitutional strike was prohibited. Franklin does not challenge the trial judge's ruling that Cantley was first stricken in violation of Batson. Nor is there any indication in the record that events occurred after the first strike which would have given defense counsel a legitimate reason to strike Cantley. We further find no error in the trial judge prohibiting defense counsel from rearguing his Batson defense. Steele v. Charlotte, C & A.R. Co., 14 S.C. 324 (1880) (motion heard and decided will only be reviewed on a new state of facts arising after

                the decision).   Accordingly, defense counsel is not prohibited from bringing to light facts justifying

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