State v. Shands, Appellate Case No. 2015-001199

• Court: Court of Appeals of South Carolina
• Writing for the Court: THOMAS, J.
• Citation: 817 S.E.2d 524,424 S.C. 106
• Parties: The STATE, Respondent, v. Preston SHANDS, Jr., Appellant.
• Decision Date: 13 June 2018
• Docket Number: Appellate Case No. 2015-001199,Opinion No. 5569

424 S.C. 106
817 S.E.2d 524

The STATE, Respondent,
v.
Preston SHANDS, Jr., Appellant.

Appellate Case No. 2015-001199
Opinion No. 5569

Court of Appeals of South Carolina.

Heard November 8, 2017
Filed June 13, 2018
Rehearing Denied August 16, 2018

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

THOMAS, J.:

424 S.C. 115

Preston Shands, Jr., appeals his convictions for first-degree burglary, kidnapping, attempted murder, first-degree assault and battery, and possession of a weapon during the commission of a violent crime. On appeal, Shands argues the trial court erred by (1) improperly applying the Batson¹ comparative juror analysis; (2) refusing to quash the

817 S.E.2d 529

indictments; (3) allowing the State to impeach him with a prior conviction; (4) refusing to charge the jury on involuntary intoxication; (5) denying his motion to strike the State's improper comments during closing argument; (6) instructing the jurors they could infer malice from the use of a deadly weapon; (7) failing to require the State to open fully on the law and facts during its initial closing argument; and (8) denying his motion for directed verdict on the kidnapping charge. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

In October 2014, a Laurens County grand jury indicted Shands for attempted murder, kidnapping, burglary, possession of a weapon during the commission of a violent crime, and two counts of assault and battery arising out of a domestic incident on July 20, 2014. On the day of the incident, Sharon Shands (Sharon) tried to leave the house after Shands began arguing with her. Shands prevented her from leaving by pulling her back into the house by her hair; he then stabbed her multiple times with a barbecue fork. Sharon was able to escape to the neighbor's house, but Shands followed her and broke into the neighbor's house. The assault ended when police arrived.

Shands testified in his defense and admitted he was responsible for what happened to Sharon. However, he claimed he did not have any memory of the incident because he drank homemade moonshine earlier in the day that must have been laced with a drug. Shands testified he bought the moonshine from someone at work and did not know who made the

424 S.C. 116

moonshine or what was in it. Shands believed there "was something more strong and powerful in there ... other than alcohol" because it "had some effect on [him] that took [him] slap clean out of [his] mind." The jury found Shands guilty of attempted murder, possession of a weapon during the commission of a violent crime, assault and battery, burglary, and kidnapping. The trial court sentenced Shands to life imprisonment without the possibility of parole for first-degree burglary, kidnapping, and attempted murder; ten years' imprisonment for first-degree assault and battery; and five years' imprisonment for possession of a weapon during the commission of a violent crime. This appeal followed.

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only, and is bound by the trial court's factual findings unless those findings are clearly erroneous. State v. Edwards , 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). Thus, on review, this court is limited to determining whether the trial court abused its discretion. Id.

I. BATSON CHALLENGE

Shands argues the trial court did not properly apply the third step of the Batson comparative juror analysis. Shands asserts he proved the State impermissibly struck two jurors on the basis of gender by showing there was a similarly situated female juror on the panel. He contends the trial court "was confused because the initial motion was based on [the State] striking men, and ... Shands then pointed to ... a female[,]" and therefore, the trial court "operated under the mistaken belief [it] could not consider a similarly situated female juror." We affirm.

Generally, "[t]he trial court's findings regarding purposeful discrimination are accorded great deference and will be set aside on appeal only if clearly erroneous." State v. Haigler , 334 S.C. 623, 630, 515 S.E.2d 88, 91 (1999). However, "[w]he[n] the assignment of error is the failure to follow the Batson hearing procedure, [the appellate court] must answer a question of law. When a question of law is presented, [the] standard of review is plenary." State v. Stewart , 413 S.C. 308, 316, 775 S.E.2d 416, 420 (Ct. App. 2015) (quoting

424 S.C. 117

State v. Cochran , 369 S.C. 308, 312–13, 631 S.E.2d 294, 297 (Ct. App. 2006) ).

[T]he Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States prohibits the striking of a potential juror based on race or gender. 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.

Id. at 313–14, 775 S.E.2d at 419 (internal citation omitted). "The United States Supreme

817 S.E.2d 530

Court has set forth a three-step inquiry for evaluating whether a party executed a peremptory challenge in a manner which violated the Equal Protection Clause." State v. Inman , 409 S.C. 19, 25, 760 S.E.2d 105, 108 (2014).

First, the opponent of the peremptory challenge must make a prima facie showing that the challenge was based on race [or gender]. If a sufficient showing is made, the trial court will move to the second step in the process, which requires the proponent of the challenge to provide a ... neutral explanation for the challenge. If the trial court finds that burden has been met, the process will proceed to the third step, at which point the trial court must determine whether the opponent of the challenge has proved purposeful discrimination.

State v. Giles , 407 S.C. 14, 18, 754 S.E.2d 261, 263 (2014) (internal citations omitted). In order to prove purposeful discrimination, "[t]he opponent of the strike must show the race or gender[ ]neutral explanation was mere pretext, which generally is established by showing the party did not strike a similarly[ ]situated member of another race or gender." Stewart , 413 S.C. at 314, 775 S.E.2d at 419. "The burden of persuading the court that a Batson violation has occurred remains at all times on the opponent of the strike." State v. Evins , 373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007). "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).

During jury selection, the State used four of its five peremptory strikes on three men and one woman. The impaneled jury was composed of nine women and three men. Shands

424 S.C. 118

objected based on the State striking male jurors, and the court properly held a Batson hearing. In response to Shands's Batson motion, the State indicated it struck two of the potential jurors because they had convictions for criminal domestic violence (CDV) and the other potential juror because he had four convictions for violating the lottery law. The State's explanation for striking the three male potential jurors satisfied the second step of the Batson analysis because "a prior criminal conviction is a neutral reason to strike" a potential juror. See State v. Casey , 325 S.C. 447, 453 n.2, 481 S.E.2d 169, 172 n.2 (Ct. App. 1997). To meet the third step of the Batson analysis, Shands argued the State sat a similarly situated female juror who had a fraudulent check conviction, indicating the State's gender neutral reason for striking the male potential jurors was pretext. When Shands argued the third step of the Batson analysis, the trial court believed that Shands previously based his objection on male jurors being struck but altered his objection because the State sat a female juror. Shands's counsel reiterated his assertion that the female juror was similarly situated to the males who were struck, which met the third prong of Batson . However, the trial court denied the objection, finding the strikes were gender neutral.

Based on the exchange between Shands and the trial court in the record, we find the trial court misapplied the third step of the Batson analysis by not properly considering whether the female juror was similarly situated to the potential male jurors. Therefore, this issue presents a question of law for this court because the trial court failed to follow the proper Batson hearing procedure. See Stewart , 413 S.C. at 316, 775 S.E.2d at 420 ("[When] the assignment of error is the failure to follow the Batson hearing procedure, [the appellate court] must answer a question of law. When a question of law is presented, [the] standard of review is plenary." (quoting Cochran , 369 S.C. at 312–13, 631 S.E.2d at 297 ) ).

However, we...