State v. Simmons

• Decision Date: 17 January 2007
• Docket Number: 2007-UP-024
• Parties: The State, Respondent, v. Samuel Simmons, Appellant.
• Court: South Carolina Court of Appeals

The State, Respondent, v. Samuel Simmons, Appellant.

No. 2007-UP-024

Court of Appeals of South Carolina

January 17, 2007

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted January 1, 2007

Appeal From Horry County Steven H. John, Circuit Court Judge

Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry D. McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Salley W. Elliott; Assistant Attorney General Shawn L Reeves, all of Columbia; and Solicitor J. Gregory Hembree, of Conway; for Respondent.

OPINION

PER CURIAM

Appellant Samuel Simmons, was indicted for and convicted of armed robbery, assault and battery with intent to kill, grand larceny and criminal conspiracy. Simmons appeals, asserting the trial court erred in overruling his Batson ^[1] motion. We affirm. ^[2]

FACTUAL/PROCEDURAL BACKGROUND

During jury selection, the State exercised five peremptory challenges. Simmons made a Batson motion, challenging the striking of three of those jurors: numbers 92, 36, and 55. The trial court explained to defense counsel following his request for a hearing on the matter that the solicitor was required to present a race or gender neutral explanation for each strike and, if the court found the explanation to be race or gender neutral, it would then look to defense counsel for an explanation as to why it was a racially based strike that was mere pretense.

The solicitor explained juror number 92 and juror number 36 both had criminal convictions. As to number 55, he stated as follows:

Juror number 55 was the one that stood up there for a good while I looked over at Ms. Canteen to try to get a signal which I apparently misinterpreted as a strike. She tells me that she was giving me an okay which is not a thumbs up or an okay. But a different signal I interpreted to be a strike. So I struck him because I thought that Ms. Canteen in my office was saying that he would not make a good juror.

I do not have any other reason because obviously she didn't have a reason. I only have her as my reason.

In response, defense counsel stated he would like to put on the record that, in regard to those three jurors, the solicitor looked over at Ms. Canteen, a member of the solicitor's office, as well as at law enforcement officer Lieutenant Grayson. He also requested, and was provided, corroboration of the convictions of jurors 92 and 36.

The trial court found the criminal charges were race neutral explanations. When the court asked counsel if he had any further argument, he replied, No, sir, Your Honor. And to clarify number 55 is the one that the solicitor said that he took the wrong hand signal I believe.” The trial judge confirmed this statement, and counsel stated he had no further objections to the jury.” The trial court then put the following on the record:

Based upon that... I do not find that the explanation though there was a mistake or an error by the solicitor's office in number 55, that it is not an error that was grounded in the juror's race. I do find that it was merely a common error or mistake by the solicitor's office. It's certain[ly] not a mere [pretextual] argument or reason and certainly do not find that for the other two. Therefore your Batson motion is denied. You have any other arguments?

Counsel responded that he had no other argument on the matter, and the trial went forward.

LAW/ANALYSIS

On appeal, Simmons asserts the trial court erroneously denied his Batson motion as to the juror struck based on the misinterpreted hand signal. He argues the State, as the proponent of the strike, was required to offer a facially race-neutral explanation for the strike and failed to do so in this instance because the State may not meet its burden by merely asserting a third person made the decision to strike and communicated this decision to the solicitor.

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.” State v Shuler, 344 S.C. 604, 615, 545 S.E.2d 805, 810 (2001). ‘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. Rayfield, 369 S.C. 106, ___, 631 S.E.2d 244, 247 (2006) (quoting State v. Haigler, 334 S.C. 623, 628-29, 515 S.E.2d 88, 90 (1999)). Both the State and defendants are prohibited from discriminatorily exercising a peremptory challenge of a prospective juror.” Id. When a party strikes a member of a cognizable racial group or gender and an opposing party requests a Batson hearing, the trial court must hold one. Shuler, 344 S.C. at 615, 545 S.E.2d at 810.

In State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996) (citing Purkett v. Elem, 514 U.S. 765 (1995)), our supreme court set forth the proper procedure for a Batson hearing.

After a party objects to a jury strike, the proponent of the strike must offer a facially race-neutral explanation. This explanation is not required to be persuasive or even plausible. Once the proponent states a reason that is race-neutral, the burden is on the party challenging the strike to show the explanation is mere pretext, either by showing similarly situated members of another race were seated on the jury or the reason given for the strike is so fundamentally implausible as to constitute mere pretext despite a lack of disparate treatment.

Rayfield, 369 S.C. at ___, 631 S.E.2d at 247 (citing Adams, 322 S.C. at 123-24, 470 S.E.2d at 371-72; State v. Haigler, 334 S.C. 623, 629-30, 515 S.E.2d 88, 90-91 (1999)). It is important to note that the ‘proponent of the peremptory challenges will not have any burden of presenting reasonably specific, legitimate explanations for the strikes. Instead, [he or she] need only present racially neutral explanations.'” State v. Flynn, 368 S.C. 83, 86, 627 S.E.2d 763, 765 (Ct. App. 2006) (quoting Adams, 322 S.C. at 123-24, 470 S.E.2d at 371). Additionally, the burden of persuading the trial court that a Batson violation has occurred remains at all times on the opponent of the strike. State v. Haigler, 334 S.C. 623, 629, 515 S.E.2d 88, 91(1999).

In deciding whether the opponent of a strike has carried the burden of persuasion, a court must undertake a sensitive inquiry into the circumstantial and direct evidence of intent.” Id. The trial judge's findings of purposeful discrimination rest largely on his evaluation of demeanor and credibility.” Shuler, 344 S.C. at 615, 545 S.E.2d at 810. Often the demeanor of the challenged attorney will be the best and only evidence of discrimination, and ‘evaluation of the prosecutor's mind lies peculiarly within a trial judge's province.'” Id. at 615-16, 545 S.E.2d at 810 (citing Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The trial court's findings in regard to whether there was purposeful discrimination are accorded great deference and such a determination will be set aside on appeal only if clearly erroneous. Haigler, 334 S.C. at 630, 515 S.E.2d at 91.

Simmons relying on the case of State v. Marble, 311 S.C. 23, 426 S.E.2d 744 (1992), argues the State, as the proponent of the strike, failed to offer a facially race-neutral explanation for the strike, because the State may not meet such a burden by asserting a third party made the decision to strike and then communicated that decision to the solicitor. In Marble, our supreme court, relying on its recent decision in ...