State v. Gill

• Decision Date: 07 March 1995
• Docket Number: No. 2379,2379
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Michael Jerrod GILL, Appellant. . Heard

Page 412

460 S.E.2d 412

319 S.C. 283

The STATE, Respondent, v. Michael Jerrod GILL, Appellant.

No. 2379.

Court of Appeals of South Carolina.

Heard March 7, 1995.

Decided July 17, 1995.

Rehearing Denied Aug. 28, 1995.

Certiorari Granted Feb. 9, 1996.

Chief Atty. Daniel T. Stacey and Deputy Chief Atty. Joseph L. Savitz, III both of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Senior Asst. Atty. Gen. Harold M. Coombs, Jr., and Asst. Atty. Gen. Rakale Buchanan Smith, Columbia; and Solicitor Thomas E. Pope, York, for respondent.

HOWELL, Chief Judge:

Michael Gill appeals from his convictions for distribution of crack cocaine and distribution of crack cocaine within proximity of a park. We affirm.

I.

In November 1991, the South Carolina Law Enforcement Division (SLED) was working with the Rock Hill Police Department, investigating street level distribution of drugs. On November 7, 1991, an undercover SLED agent fitted with a body transmitter was approached outside a Rock Hill store by a man identifying himself as Mike. The agent told Mike she was looking for a friend to get "something"--meaning drugs, but she discovered her friend was in jail. Mike asked the agent if she wanted "that thing," to which the agent responded that she did. Mike then walked across the street to the side of a house. The agent got in her car and, using her transmitter, relayed a description of Mike to the Rock Hill police officers making up the surveillance team. Mike returned within two to three minutes, and got into the agent's car. He handed the agent a plastic bag containing two off-white, rock like substances. The agent took the bag and gave Mike a $20 bill. The two continued talking after the sale, and Mike left the vehicle approximately eight to ten minutes from the time he first approached her. Subsequent testing revealed the substance to be crack cocaine.

As the agent drove away she again relayed Mike's description and his probable destination to the surveillance team. Within approximately one minute after the SLED agent drove away, two Rock Hill police cars pulled in front of the house the undercover agent had just described. Two officers approached three black males standing in front of the house. Only one of the men matched the agent's description of Mike. The officers asked each man for identification; the man matching Mike's description produced identification indicating that his name was Michael Gill. Because of the on-going nature of the investigation, Gill was not arrested until eight months later. At trial, the undercover agent unequivocally identified Gill as the person from whom she bought the drugs. Gill testified at the trial, and presented an alibi defense.

Gill raises two issues on appeal. First, Gill contends the State exercised one of its peremptory strikes in a racially discriminatory manner. Second, Gill contends the trial court erred by failing to require the State to produce a summary report prepared by the police in preparation for trial.

II.

During jury selection, the State exercised three peremptory challenges, one against a black female and two against white males. Gill objected to the State's strike against the black female juror, and requested a hearing to determine the propriety of the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The assistant solicitor explained the strike:

She was struck for two reasons, your honor, two and a half actually. The first, she did not want to serve on the jury this time, she asked for a hardship excuse, and I didn't think that would make her a good juror, she would be more reluctant and I wanted jurors who were enthusiastic about service and not someone who was worried about something happening somewhere else. That's the first reason. The second reason--.... The other reason is Mr. Brown informed me that that juror lived on the same street as the defendant and it's a possibility that she may have known him. She might not have known him at first, but she might have sat in the jury box through half the trial and then suddenly realized she knew him and that might have caused problems. ¹

The trial court asked the solicitor whether there were any other people selected for the jury who had asked for a hardship excuse. The solicitor replied, "No sir, your honor. The notes don't reflect it--Mr. Grant's [notes] don't reflect it." ² As to the State's second reason, Gill's attorney informed the court that Gill at one point had lived on the same street as the juror, but that he had not lived in the area for at least two years. The trial court found the State's two reasons racially neutral, but stated that if any of the sitting jurors had also asked for a hardship, it would look at the matter again.

The trial court denied defense counsel's request to view the solicitor's notes taken during venire to determine whether any other jurors had requested a hardship. However, counsel did review the record with the court reporter and determined that a white female juror had also requested a hardship, but was not excused by the State. The assistant solicitor offered the other solicitor's notes and informed the trial court that he was unaware that the white juror had requested a hardship. While the trial court expressed concern with the State's reliance on incomplete information, he nonetheless denied the Batson motion because the State's second reason was racially neutral.

It is well established that Batson prohibits the State from exercising its peremptory strikes in a racially discriminatory manner. If a party raises a Batson objection, the trial court should hold a hearing to determine whether the peremptory strikes were properly exercised. State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995). The party exercising the strikes must then provide a racially neutral explanation for the use of the strikes. Unless the discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. State v. Green, 306 S.C. 94, 409 S.E.2d 785 (1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1566, 118 L.Ed.2d 212 (1992). While the explanation need not rise to the level justifying a challenge for cause, a racially neutral reason cannot be established by merely denying a discriminatory motive. State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989). The explanation must be related to the case to be tried, clear, reasonably specific, and legitimate. State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991). ³ If the proffered reason is facially valid, the challenging party bears the burden of showing that the reason is merely pretext, and that race was the reason for the strike. See State v. Oglesby, 298 S.C. 279, 379 S.E.2d 891 (1989).

Here, Gill contends that the State's hardship explanation is pretext, because the State did not strike a white juror who also had requested a hardship exemption. According to Gill, this showing of pretext establishes a Batson violation without regard to the other reason proffered by the State, or the other circumstances surrounding the strike. We disagree.

Preliminarily, we question whether the State's hardship explanation in fact is pretextual. The burden is on the party challenging the strike to prove that the solicitor's allegedly neutral reason was pretextual because it was not applied in a neutral manner. Sumpter v. State, 312 S.C. 221, 439 S.E.2d 842 (1994). Here, the white juror apparently requested to be excused from jury duty because her husband was ill. The reason for her requested exemption is compelling, and does not necessarily indicate unwillingness to serve on the jury. However, nothing in the record indicates why the black juror sought an exemption. If her reason was less legitimate or compelling than that of the white juror, it would be more indicative of her disinterestedness and reluctance to serve on the jury. In such a case, striking her but not striking the white juror might not constitute a Batson violation. See State v. Dyar, 317 S.C. 77, 452 S.E.2d 603 (1994), reh'g granted (Sept. 8, 1994) (where the State struck a black juror who had criminal charges but did not strike a white juror with criminal charges, no Batson violation because the charges against the black juror were handled by the office of the solicitor involved in the case against Dyar, and no evidence was presented showing that the charges against the white juror had been handled by that solicitor); State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991) (no Batson violation where solicitor excused two black jurors because they were late but sat a white juror who was also late, because the white juror expressed a desire to serve on the jury).

Nonetheless, we will assume Gill has adequately established that the hardship excuse was pretextual; however, this assumption does not end our inquiry. In addition to her request for an exemption, the State also struck the black juror because Gill previously lived on the same street as the juror. Striking a juror who lived near the defendant has been held to be a valid use of a peremptory strike. State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990). Thus, the question before this Court is whether a pretextual explanation for a peremptory strike necessarily constitutes a Batson violation when a valid, race neutral explanation for the strike is also offered. We conclude it does not. See State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987) (no Batson violation where one of the State's two reasons proffered for its exercise of peremptory strikes was invalid, but the remaining reason was valid).

The determinative issue in any Batson claim is whether, in light of the totality of the circumstances, a party engaged in purposeful, invidious discrimination. In other areas of equal protection jurisprudence it is established that an action motivated in part by an impermissible reason...