State v. Rogers
| Decision Date | 04 September 2013 |
| Docket Number | No. 5170.,5170. |
| Citation | 748 S.E.2d 247,405 S.C. 520 |
| Parties | The STATE, Respondent, v. Brandon ROGERS, Appellant. Appellate Case No. 2011–190166. |
| Court | South Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appellate Defender Breen Stevens, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia, for Respondent.
Appellant Brandon Rogers appeals his convictions for second-degree burglary and of petit larceny. Rogers argues that the trial court erred in (1) granting the State's Batson1 motion regarding three jurors and, thereafter, preventing him from striking the challenged jurors in the subsequent jury selection, and (2) sentencing him based on the pre-amended version of South Carolina Code section 16–11–312 (Supp.2012). We reverse the trial court's finding of a Batson violation as to each of the three jurors and remand for a new trial.
Rogers and his brother, Daniel Rogers, were indicted for burglary in the second-degree and of petit larceny. During the initial jury selection, Rogers and his co-defendant, both of whom are black, collectively exercised peremptory strikes on nine prospective white jurors 2, including Jurors 65, 89, and 166.3 Rogers struck Juror 65 (a white female) and Juror 166 (a white male). His co-defendant struck Juror 89 (a white female). The jury was ultimately composed of three black males, six black females, one white male, two white females, and one white female alternate. The State subsequently requested a Batson hearing, asserting eight of the nine strikes exercised by the defense were on the basis of race.
Ultimately, the trial court granted the State's Batson motion regarding five of the eight jurors. The trial court quashed the first jury and precluded the defense from striking any of the five jurors during the second jury selection. Jurors 65, 89, and 166 were selected for the second jury, and the case proceeded to trial.
The jury found Rogers and his co-defendant guilty of burglary in the second degree and petit larceny. The trial court sentenced Rogers to twelve years' imprisonment for the burglary charge, and to a concurrent term of thirty days for petit larceny. This appeal followed.
“Whether a Batson violation has occurred must be determined by examining the totality of the facts and circumstances in the record.” State v. Shuler, 344 S.C. 604, 615, 545 S.E.2d 805, 810 (2001). “Appellate courts give the trial judge's finding great deference on appeal, and review the trial judge's ruling with a clearly erroneous standard.” Id. “A finding is clearly erroneous if it is not supported by the record.” Id. at 620, 545 S.E.2d at 813.
Rogers argues the trial court erred in finding his defense counsel's and his codefendant's counsel's explanations for striking Jurors 65, 89, and 166 were pretextual, and by preventing him from striking the three jurors when they were called in the subsequent jury selection.
“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the striking of a venire person on the basis of race or gender.” Id. at 615, 545 S.E.2d at 810. “The purposes of Batson and its progeny are to protect the defendant's right to a fair trial by a jury of the defendant's peers, protect each venireperson's right not to be excluded from jury service for discriminatory reasons, and preserve public confidence in the fairness of our system of justice by seeking to eradicate discrimination in the jury selection process.” State v. Haigler, 334 S.C. 623, 628–29, 515 S.E.2d 88, 90 (1999) (citations omitted). “When one party strikes a member of a cognizable racial group or gender, the trial court must hold a Batson hearing if the opposing party requests one.” Shuler, 344 S.C. at 615, 545 S.E.2d at 810.
In Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the Supreme Court of the United States explained the proper procedure for a Batson hearing as follows:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.
Step two of this process does not demand an explanation that is persuasive or even plausible. State v. Cochran, 369 S.C. 308, 314, 631 S.E.2d 294, 298 (Ct.App.2006) (quoting Purkett, 514 U.S. at 767–68, 115 S.Ct. 1769). At step two, “the proponent of the strike does not carry ‘any burden of presenting reasonably specific, legitimate explanations for the strikes.’ ” Id. (quoting State v. Adams, 322 S.C. 114, 123, 470 S.E.2d 366, 371 (1996)). “Therefore, ‘[u]nless a discriminatory intent is inherent’ in the explanation provided by the proponent of the strike, ‘the reason offered will be deemed race neutral’ and the trial court must proceed to the third step of the Batson process.” Id. (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769).
“At step three, the opponent of the strike must show the reason offered, though facially race-neutral, was actually mere pretext to engage in purposeful racial discrimination.” Cochran, 369 S.C. at 315, 631 S.E.2d at 298 (citing Adams, 322 S.C. at 124, 470 S.E.2d at 372). “The burden of persuading the court that a Batson violation has occurred remains at all times on the opponent of the strike.” Haigler, 334 S.C. at 629, 515 S.E.2d at 91. “This burden is generally established by showing similarly situated members of another race were seated on the jury.” Cochran, 369 S.C. at 315, 631 S.E.2d at 298. “Under some circumstances, the race-neutral explanation given by the proponent may be so fundamentally implausible that the judge may determine, at the third step of the analysis, that the explanation was mere pretext even without a showing of disparate treatment.” Payton v. Kearse, 329 S.C. 51, 55, 495 S.E.2d 205, 208 (1998). “When the opponent of the strike proves the proponent of the strike practiced purposeful racial discrimination, the trial court must quash the entire jury panel and initiate another jury selection de novo.” Cochran, 369 S.C. at 315, 631 S.E.2d at 298.
“If a trial court improperly grants the State's Batson motion, but none of the disputed jurors serve on the jury, any error in improperly quashing the jury is harmless because a defendant is not entitled to the jury of her choice.” State v. Edwards, 384 S.C. 504, 509, 682 S.E.2d 820, 823 (2009). “However, if one of the disputed jurors is seated on the jury, then the erroneous Batson ruling has tainted the jury and prejudice is presumed in such cases ‘because there is no way to determine with any degree of certainty whether a defendant's right to a fair trial by an impartial jury was abridged.’ ” Id. (quoting State v. Rayfield, 369 S.C. 106, 114, 631 S.E.2d 244, 248 (2006)). “The proper remedy in such cases is the granting of a new trial.” Id.
Rogers argues the trial court erred in finding his reason for striking Juror 65, a white female, was pretextual. We agree.
At the Batson hearing, Rogers' defense counsel stated that he struck Juror 65 because she was a retired school teacher and, therefore, “had experience as a disciplinarian.” He further explained:
Because she is a school teacher, Your Honor, I believe that is axiomatic with that job. Or at least every teacher that I had in public school is less likely wanting [sic] to hear excuses from anybody. And less likely to find excuses or any kind of the defendants who are also people in their early twenties might want to—I just know that teachers don't like excuses, and they don't like—they don't like people trying to talk their way out of trouble. Or they didn't when I was in school.
In response, the State argued that the strike was improper because defense counsel's stated reason for striking Juror 65 was rooted in a stereotype of the teaching profession. The trial court accepted the State's argument, stating the following:
[B]ut that kind of stereotyping of groups or subgroups are specifically prohibited by Payton versus Kearse, a South Carolina Supreme Court case, and you can't just class people into stereotype groups or subgroups, and give that as a reason for being racially neutral.
(emphasis added). Additionally, the trial court found that defense counsel's explanation was pretextual and, therefore, improper, because the defense seated a juror who was similarly situated to Juror 65.4
In Payton v. Kearse, 329 S.C. 51, 55–56, 495 S.E.2d 205, 208 (1998), our supreme court held that striking a white juror because she was a “redneck” was facially discriminatory, and, therefore, violated Batson. In so holding, the court reasoned, “[t]he term ‘redneck’ is a racially derogatory term applied exclusively to members of the white race.” Id. Significantly, the court went on to note: “Our holding only prevents a party from striking a juror based on a racially stereotypical reason.” Id. at 56–57, 495 S.E.2d at 208 (emphasis added).
In this instance, the trial court misinterpreted Payton as precluding a party from striking a juror on the basis of any stereotype. In Payton, our supreme court made clear that its holding only prevented a party from striking a juror based on a racially stereotypical reason. See id. Because defense counsel's explanation for striking Juror 65 was not rooted in a racial stereotype, the trial court erred in ruling that his explanation was facially discriminatory under the standard enunciated in Payton. Moreover, a prospective juror's employment is a legitimate race-neutral reason for exercising a peremptory strike. See Cochran, 369 S.C. at...
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