State v. Watts, 2416

• Citation: 465 S.E.2d 359,320 S.C. 377
• Decision Date: 13 September 1995
• Docket Number: No. 2416,2416
• Parties: The STATE, Respondent, v. Kyle D. WATTS, Appellant. . Heard
• Court: Court of Appeals of South Carolina

Page 359

465 S.E.2d 359

320 S.C. 377

The STATE, Respondent, v. Kyle D. WATTS, Appellant.

No. 2416.

Court of Appeals of South Carolina.

Heard September 13, 1995.

Filed November 13, 1995.

Assistant Appellant Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General T. Travis Medlock, Chief Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General Harold M. Coombs, Jr., and Assistant Attorney General William Edgar Salter, III, Columbia; and Solicitor W. Townes Jones, IV, Greenwood, for respondent.

PER CURIAM:

Kyle D. Watts appeals his conviction for distribution of crack cocaine. First, he contends the trial court erred in denying his motion to strike the jury under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) because the State failed to give racially neutral reasons for striking two black jurors. Second, he claims the court erred in refusing to grant a mistrial after the prosecution twice asked whether Watts had been targeted in the police's investigation. We affirm.

Facts

Eleanor Savage, a special agent with the State Law Enforcement Division (SLED), testified that on March 3, 1993, she along with Special Agent Ray Lominack was assisting the Greenwood City Police Department with an ongoing, undercover narcotics investigation in Greenwood. They worked directly with Greenwood's Assistant Chief of Police Mike Butler and Detective Kevin Fallaw as well as with a confidential informant. Around 1:30 p.m., the group met at a predetermined point and discussed their plans for the undercover operation. The officers frisked the confidential informant and determined he did not have any weapons or drugs in his possession. Agent Savage outfitted herself with a beeper wire, a small transmitting device which allowed the other officers to perform audio surveillance of her and the confidential informant. As soon as they determined the beeper wire worked properly, they went to the Green Street area in the city.

Agent Savage and the informant traveled together in one car while the other officers performed surveillance from two different, unmarked cars. When they reached Green Street, Agent Savage observed Watts and two or three other males standing in the front yard of a residence. Although Agent Savage had never met Watts, she had seen him before. He apparently did not know she worked for SLED. Once Agent Savage stopped the car, the informant asked Watts a question, and Watts answered, nodded, and gestured for Agent Savage to approach him.

Agent Savage then got out of her car and walked toward Watts who handed her a piece of crack cocaine. Agent Savage asked how much the crack cost, and Watts responded, "a twenty." After giving Watts a twenty-dollar bill, Agent Savage returned to her car and left the scene.

As she drove away, she gave a description of Watts's distinctive attire over the beeper wire. She reported he wore a purple and gold jacket with an eight-ball on the back, black pants, a chain necklace, and a gray hat with writing on the front of it. Assistant Chief Butler heard this transmission and immediately rode by the scene. He saw Watts, whom he had known for several years, wearing clothing identical to that described by Agent Savage.

Thereafter, all the officers met at their predetermined point. Agent Savage placed the crack cocaine Watts sold her in an evidence bag and labeled it. Officers later arrested Watts. Agent Savage had no difficulty identifying Watts in court as the person she bought the crack cocaine from on March 3, 1993.

I.

On appeal, Watts first contends the State exercised two of its peremptory strikes in a racially discriminatory manner. Watts maintains the court erred in refusing to quash the jury pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) because the State did not articulate racially neutral reasons for striking the two black jurors. We disagree.

During jury selection, the State exercised three of its peremptory challenges against black jurors and two against white jurors. Watts objected to the State's strikes against the three black jurors, and requested a hearing to determine the propriety of those strikes under Batson. The assistant solicitor explained the eighth juror was struck because he was seen by members of the Solicitor's Office sitting in the area of the courtroom where Watts and other defendants sat, and someone from the Solicitor's staff had to ask him to move to the area of the courtroom reserved for jurors. The assistant solicitor stated she struck the eleventh juror because members of his family had recently been indicted on federal drug charges. Finally, she said she struck the twelfth juror "simply because everyone else we had chosen to strike had been struck. We had to pick someone."

Watts accepted the State's articulated reason for striking the eleventh juror as racially neutral, but challenged the reasons advanced for striking the eighth and twelfth jurors. The trial court rejected Watts's argument and found the State exercised the strikes in a racially neutral manner.

It is well established that Batson prohibits the State from exercising its peremptory strikes in a racially discriminatory manner. When a party raises a Batson objection and requests a hearing, the trial court must hold a hearing to determine whether the peremptory strikes were properly exercised. State v. Chapman, --- S.C. ----, 454 S.E.2d 317 (1995). The party exercising the strikes must then provide a racially neutral explanation for the use of the strikes. Unless the discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. State v. Green, 306 S.C. 94, 409 S.E.2d 785 (1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1566, 118 L.Ed.2d 212 (1992). While the explanation need not rise to the level justifying a challenge for cause, a racially neutral reason cannot be established by merely denying a discriminatory motive. State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).

In determining whether the explanation for the strike is adequate to rebut a prima facie case of discrimination, the trial judge should consider whether the reasons offered for the strike are: (1) neutral; (2) related to the case to be tried; (3) clear and reasonably specific, and (4) legitimate. State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991). ¹ If the proffered reason is found facially valid, the challenging party bears the burden of showing that the reason is merely pretext, and that race was the reason for the strike. See State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990); State v. Oglesby, 298 S.C. 279, 379 S.E.2d 891 (1989). Because the trial judge's findings regarding purposeful discrimination rest largely upon an evaluation of the credibility of the attorney making the strikes, we give those findings great deference. However, where the record does not support the attorney's stated reason for the strike, the trial court's findings must be overturned. State v. Patterson, 307 S.C. 180, 414 S.E.2d 155 (1992).

Here, the State indicated it struck the eighth juror because he was seen seated in the portion of the courtroom near the defendant and had to be told to move to the area reserved for jurors. This is a racially neutral and valid reason for striking the juror, and Watts failed to prove it was pretextual. See State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991) (solicitor's explanation that two blacks were struck from jury because they reported late for jury duty established that strikes were racially neutral); State v. Wright, 304 S.C. 529, 405 S.E.2d 825 (1991) (solicitor's stated reason for striking black juror, his demeanor and apparent disinterest in the courtroom proceedings, was found racially neutral).

As relates to the twelfth juror, the trial judge ruled that the State was "required" to strike a certain number of jurors under the method he used for impanelling the jury, and thus the solicitor's explanation that she struck this juror because "everyone else [they] had chosen to strike had been struck [and they] had to pick someone" was not evidence of a racial strike. Although the failure to advance any reason for striking a juror normally vitiates the strike and constitutes a Batson violation, Grandy, 306 S.C. at 227, 411 S.E.2d at 208, ² under the circumstances of this case, we conclude there was no Batson violation since the judge required the parties to use all of their strikes, and there was otherwise no indication the State engaged in purposeful, invidious discrimination. See Riddle v. State, 314 S.C. 1, 443 S.E.2d 557, cert. denied, --- U.S. ----, 115 S.Ct. 518, 130 L.Ed.2d 424 (1994) (whether a Batson violation has occurred must be determined by examining the totality of the facts and circumstances in the record surrounding the strike); Green, 306 S.C. at 98, 409 S.E.2d at 788 (absent showing that solicitor intentionally exercised strike because of racial concerns or for a discriminatory purpose, the trial judge's finding that strike was not racially motivated should be given great deference on appeal).

Moreover, the composition of the jury panel supports the determination that the State did not exercise its peremptory strikes in a discriminatory manner. See State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990) (composition of the jury panel is a factor that may be considered when determining whether a party engaged in purposeful discrimination). In this case, the jury was composed of eight whites and four blacks. The first and last strikes exercised by the State were against white jurors. Therefore, considering all the relevant facts and circumstances, we agree with the trial court's conclusion that the State's exercise of its peremptory strikes did not violate Batson.

II.

Watts next argues the trial court erred in refusing to...