State v. Green, No. 23181

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HARWELL; GREGORY; FINNEY
• Citation: 301 S.C. 347,392 S.E.2d 157
• Parties: The STATE, Respondent, v. Anthony GREEN, Appellant. . Heard
• Decision Date: 04 December 1989
• Docket Number: No. 23181

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392 S.E.2d 157 301 S.C. 347 The STATE, Respondent,
v.
Anthony GREEN, Appellant. No. 23181. Supreme Court of South Carolina. Heard Dec. 4, 1989.
Decided March 19, 1990.

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[301 S.C. 349] John H. Blume, Franklin W. Draper, SC Office of Appellate Defense, Columbia, Michael P. O'Connell, Office of Public Defender, Charleston, Lawrence J. Rosintoski, Mt. Pleasant, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Solicitor Charles M. Condon, Charleston, for respondent.

HARWELL, Justice:

Appellant Anthony Green was convicted for the murder and armed robbery of Susan Babich. He was sentenced to death for the murder and 25 years for the armed robbery. This case consolidates his direct appeal with the sentence review mandated by S.C.Code Ann. § 16-3-25 (1985). We affirm the convictions and sentences.

FACTS

On November 21, 1987, appellant traveled in his car to the Charles Towne Square Shopping Mall in Charleston, where he parked in a rear parking lot. The victim, Susan Babich, parked beside appellant. Appellant got his rifle and approached Mrs. Babich's vehicle. After Mrs. Babich noticed him approaching, appellant then shot her in the head, took her pocketbook, and fled the scene.

[301 S.C. 350] Within less than half an hour after the shooting, appellant was apprehended in the mall area. The police spotted a rifle and also a checkbook in appellant's white Toyota Celica. The checkbook was later determined to belong to Mrs. Babich. In his opening argument, counsel for appellant stated that appellant did not deny shooting Mrs. Babich. According to his confession and accompanying statements to the investigating officer, appellant killed Mrs. Babich because she noticed him and looked back toward him.

The jury found appellant guilty and sentenced him to death. Appellant's exceptions on appeal are discussed below in the order in which they arose at trial.

I. PRETRIAL ISSUES

A. CHANGE OF VENUE

Appellant requested a change of venue based on the contention that jurors in Charleston County were more likely to impose a death sentence on a black defendant. As evidence, appellant cited statistics that eight of nine black defendants received death sentences while only four of eight white defendants received death sentences. Appellant concedes that some of these cases were re-trials because of reversals. At trial, the statistical evidence presented contained no details of the nature of the crimes involved nor the composition of the juries which heard the cases. The trial judge denied the motion for a change of venue because appellant did not carry his burden of proof on this motion. A motion for a change of venue is addressed to the sound discretion of the trial court, whose ruling will not be disturbed by

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this court absent an abuse of that discretion. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982). We hold that the trial judge in this case properly denied the motion for change of venue.

B. JURY SELECTION

1. JUROR WILLIAM F. CANTY

Appellant submits that venireman William F. Canty should not have been qualified because his responses on voir dire indicated that he was racially biased. On voir dire, the following exchange occurred during defense [301 S.C. 351] counsel's questioning of Canty regarding his racial attitudes:

Q: [W]ould the fact that my client's [sic] black and this lady was white influence your decision on what penalty Tony should receive ...?

A: It's hard to say because my sister was attacked, robbed, my older sister. She got away from him. He got her pocketbook, and I was mugged when I was 15 and I got my wallet taken and my bike stolen.

Q: Was that by a black person?

A: By two black people....

Q: What about that?

A: I just--that's what I was thinking when I was in there, thinking--I figured you all would probably ask me something like that. You know, it's hard for me to give a concrete answer because that's--that was a bad experience for me.

Q: Yes, sure.

A: I can say I sure would try not to, but, you know, its hard to know exactly what you're going to do when it comes down to it.

Q: Are you saying that the fact that my client is black might influence your decision as to what penalty he should receive?

A: It may. I can't guarantee that it won't. I'd like to say that I could, I couldn't. I'd like to say that I could not. It definitely won't influence my opinion, but I don't think I'd be truthful, you know, it may not. Because of things that have happened in my past, I can't help it.

The State did not cross-examine venireman Canty regarding his racial attitudes. Following voir dire, appellant moved to have Canty disqualified on the basis that his responses indicated racial prejudice. The trial judge refused the motion and appellant exercised a peremptory challenge to have Canty excused.

S.C.Code Ann. § 14-7-1020 provides:

The court shall, on the 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 [301 S.C. 352] opinion, or is sensitive of any bias or prejudice therein, and the party objecting to the juror may introduce any competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he must be placed aside as to the trial of that cause and another must be called.

In order to protect the capital defendant's right to an impartial jury, he is entitled to have prospective jurors informed of the race of the defendant and questioned on their racial biases. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). If a juror is shown through voir dire to exhibit bias, the trial judge must exercise his discretion by disqualifying such a juror. A venireman must be excused if his opinions would prevent or substantially impair the performance of his duties as a juror in accordance with his oath and instructions. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The trial judge's failure to excuse juror Canty, in view of his answers, was error.

In reviewing an error as to the qualification of a juror, we engage in a three step analysis. First, as reflected by several South Carolina cases, an appellant must show that he exhausted all of his peremptory challenges. State v. South, 285 S.C. 529, 331 S.E.2d 775 (1985); State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983); State v. Elmore, 279 S.C. 417, 308 S.E.2d

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781 (1983); State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960). If appellant failed to exhaust all of his challenges, this Court need not examine whether a juror was erroneously qualified. If however, all peremptory challenges have been used, we move to a second step and examine the disputed juror to see if the juror was erroneously qualified. Finally, if a juror was erroneously qualified, then under an elementary principle of appellate review, the appellant must demonstrate that this error deprived him of a fair trial.

In most of the South Carolina cases involving peremptory challenges, appellants have failed to satisfy the first step of this process. In only one South Carolina case have we reached the second step of the review procedure. State v. Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986). In Cooper, appellant asserted that the trial court erroneously qualified a highway patrolman [301 S.C. 353] as a juror who should have been excused for cause because he fell under a statutory exclusion. ¹ For purposes of that opinion, we clarified the application of the statute and noted the judge's error in his interpretation of the statute. However, because we reversed that case for other reasons, it was not necessary for us to determine whether that error alone would have warranted reversal. In other words, we did not engage in the third step of the process outlined above.

In this case however, we reach the third step and are called upon to determine whether the judge's error warrants reversal. In making this analysis, we are guided by the decision of the United States Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In Ross, the Supreme Court held that in examining whether an appellant received a fair trial, we focus on those jurors who were ultimately seated. Ross, 108 S.Ct. at 2276. Here, as in Ross, none of the jurors ultimately seated was challenged for cause. In fact, after appellant exercised his final peremptory challenge, only two additional jurors were seated, neither of whom was challenged for cause.

The administration of peremptory challenges is circumscribed only by the necessity of granting the accused a fair and impartial trial. State v. Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981); State v. Bailey, 273 S.C. 467, 257 S.E.2d 231 (1979). We have carefully reviewed the voir dire responses of all of the jurors who ultimately heard this case and are convinced that appellant received a fair trial. This Court has always vigorously protected the rights of capital defendants through assuring that convictions are fairly obtained. We are at a loss to ascertain the prejudice in this case, thus, we hold that appellant has failed to demonstrate the third step of the process--that the error found deprived him of his right to a fair trial.

[301 S.C. 354] 2. JURORS MARGARET WILLIAMS AND RONALD BROWN

Appellant next contends that jurors Margaret Williams and Ronald Brown should have been disqualified because their responses on voir dire indicated a predisposition to only vote for the death penalty. First, we note that this issue is subject to the same analysis as employed above. Here, however, we do not find error in the judge's decision to qualify either juror.

A venireman must be excused only if his opinions would prevent or substantially impair the performance of his duties as a juror in accordance with his oath and...