State v. Tucker

• Decision Date: 14 December 1998
• Docket Number: No. 24864.,24864.
• Citation: State v. Tucker, 334 S.C. 1, 512 S.E.2d 99 (S.C. 1998)
• Court: South Carolina Supreme Court
• Parties: The STATE of South Carolina, Respondent, v. James Neil TUCKER, Appellant.

334 S.C. 1

512 S.E.2d 99

The STATE of South Carolina, Respondent, v. James Neil TUCKER, Appellant.

No. 24864.

Supreme Court of South Carolina.

Heard October 6, 1998.

Decided December 14, 1998.

Refiled January 25, 1999.

Teresa L. Norris and Hillary Sheard, both of Center for Capital Litigation, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for respondent.

ORDER

After reviewing the Petition for Rehearing in this case, it is ordered that the opinion heretofore filed, Opinion No. 24864, filed December 14, 1998, be withdrawn and the attached opinion be substituted. The Petition for Rehearing is denied.

AND IT IS SO ORDERED.

/s/ Jean H. Toal, A.C.J. /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J. /s/ Diane Schafer Goodstein, A.J.

MOORE, Justice:

Appellant was convicted of murder, armed robbery, grand larceny, and first degree burglary. On appeal, we affirmed his convictions but reversed his death sentence. State v. Tucker, 320 S.C. 206, 464 S.E.2d 105 (1995). After a resentencing trial, he was again sentenced to death. We affirm.

FACTS

Appellant James Tucker broke into Shannon Mellon's house in the early morning hours of July 2, 1992.¹ Armed with a gun, he taped her wrists and ankles behind her back and left her on her bed while he searched for things to steal. Appellant then reentered Shannon's bedroom and shot her once in the head. While he was packing some of Shannon's clean clothes to take with him, Shannon regained consciousness, sat up, and said she could not see. Appellant shot her a second time in the head. He continued to pack and when he heard Shannon's labored breathing, he shot her a third time in the head. He then wrapped Shannon's body in a sheet and dragged it into the woods behind the house. Her body was discovered a week later. Appellant stole Shannon's car and drove to Spartanburg where he stayed with a friend for several days. He was apprehended in North Carolina on July 10, 1992.

DISCUSSION

Peremptory Challenges

Appellant contends the trial court erred in ruling on his Batson motion.² We disagree.

All of the six peremptory strikes used by the State were used against blacks.³ Appellant contends that similarly situated white jurors were not struck. Specifically, appellant questions the striking of Jurors Bonaparte, Gillings, Stokes, Jackson, Williams, and Mitchell.

Pursuant to State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987), the trial judge must hold a Batson hearing when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. The proponent of the strike is required to offer a race-neutral explanation. Unless a discriminatory intent is inherent in the proponent's explanation, the reason offered will be deemed race-neutral. Then, the opponent of the strike must show that the race-neutral explanation given was mere pretext. Pretext generally will be established by showing that similarly situated members of another race were seated on the jury. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).

The solicitor stated he struck Juror Bonaparte because he was argumentative and his answers were "dogmatic." Further, Juror Bonaparte had referred to his brother's murder and the former solicitor's refusal to prosecute. The solicitor stated he was afraid this juror harbored some resentment against the solicitor's office which might affect his deliberations. The trial court agreed that Juror Bonaparte was argumentative. The trial judge even pointed out how the juror had been argumentative with him. Appellant has failed to point out a white juror similarly situated to Juror Bonaparte who was not struck. Furthermore, counsel may strike venire persons based on their demeanor and disposition. State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991).

The solicitor stated he struck Juror Gillings because she lived in a high crime area, did not understand the court process, could not remember the three categories regarding views of the death penalty, and stated she could not sign a death verdict form. Additionally, Juror Gillings' husband had been arrested for assault and battery of a high and aggravated nature. The trial court ruled the reasons were race-neutral. He agreed that Juror Gillings seemed to have trouble with abstract thinking and lacked an understanding about the court process. Again, appellant has failed to point to any similarly situated white jurors who were seated.

Furthermore, both the prosecutor and defense counsel must be allowed to make credibility determinations when exercising peremptory challenges. In State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), we declined to substitute our judgment for that of the solicitor regarding subjective responses to death penalty voir dire questions in the face of claims comparable white jurors were seated. See also State v. Woodruff, 300 S.C. 265, 387 S.E.2d 453 (1989).

The solicitor stated he struck Jurors Stokes, Jackson, Williams, and Mitchell because they appeared to be equivocal on the death penalty. Vacillating responses to voir dire questions regarding the death penalty will support the use of a peremptory strike against a Batson challenge. State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989). Where the solicitor perceives a person will have difficulty imposing the death penalty, he may exercise a peremptory challenge against the juror upon this ground as a racially neutral reason. State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990).

Because the trial judge's findings regarding purposeful discrimination rest largely upon his evaluation of the solicitor's credibility, we will give those findings great deference. See Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Davis, 306 S.C. 246, 411 S.E.2d 220 (1991). When the record does not support the solicitor's stated reason upon which the trial judge has based his findings, however, those findings will be overturned. Davis, supra. Here, the record supports the solicitor's reasons for striking these jurors. Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994). Mindful of the deference that we must give to the trial court, we hold the trial court correctly held that the solicitor's reasons for striking these jurors were not pretextual.

Limiting of Voir Dire

During voir dire, appellant sought to question the jury venire about their knowledge of the Sumter County trial, the imposition of the death penalty in that case, and the prior Calhoun County trial. The trial court denied appellant's motion because he did not want to unnecessarily plant any prejudicial information in the minds of the jurors. Appellant contends this was error. We disagree.

Appellant contends the trial judge erred in limiting his questions on voir dire. South Carolina Code Ann. § 16-3-20(D) (Supp.1995) grants a capital defendant the right to examine jurors through counsel. The manner in which these questions are pursued and the scope of any additional voir dire are matters of trial court discretion. State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982). We hold the trial judge did not abuse his discretion.

Additionally, in Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 1905, 114 L.Ed.2d 493 (1991), the United States Supreme Court held a defendant is entitled to specific questions only if the failure to ask them would render his trial "fundamentally unfair." We hold the denial of appellant's motion did not render his trial "fundamentally unfair."

Excusal of Juror Williams

Appellant contends the trial court erred in excusing Juror Williams for cause. We disagree.

Juror Williams is a Jehovah's Witness minister. A general tenet of Jehovah's Witnesses is that they can not sit in judgment of another person. During the general qualifying of the jury pool, a bench conference was held after which, Juror Williams was excused by the trial court. The trial court then relayed what had occurred during the bench conference for the record. The trial court stated defense counsel had asked Juror Williams if he could sit in judgment following special counseling. Juror Williams said he thought that there was some counseling which might enable him to serve as a juror but the counseling might take four days. Appellant agreed with the trial court's recollection but he objected to the court's excusal of Juror Williams. Appellant stated that the trial court's excusal prevented him from rehabilitating the juror during individual voir dire as to his view on the death penalty and the special circumstances which might allow him to sit as a juror. The trial court stated that he excused Juror Williams without regard to his view on the death penalty; it was based solely upon the fact that his religious beliefs would not allow him to sit as a juror and that the special circumstances which might allow him to serve would require four days of counseling.

On review, the trial court's disqualification of a prospective juror will not be disturbed where there is a reasonable basis from which the trial court could have concluded that the juror would not have been able to faithfully discharge his responsibilities as a juror under the law. State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990): State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). The trial court properly excluded Juror Williams because his religious beliefs which prohibit judging another person would have prevented or substantially impaired the performance of his duties as a juror.

Appellant also contends the trial court violated S.C.Code Ann. § 16-3-20 (Supp.1997), when he did not allow appellant to question Juror Williams. Section 16-3-20(D) provides, in pertinent part:

(D) Notwithstanding the provisions of Section 14-7-1020, in ca

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