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South Carolina
Judicial Department
24927 - State v. Haigler

Shearouse Adv. Sh. No.12
S.E. 2d


In The Supreme Court

The State, Respondent,


Bradford Haigler, Appellant.

Appeal From Orangeburg County

Edward B. Cottingham, Circuit Court Judge

Opinion No. 24927

Heard February 17, 1999 - Filed March 22, 1999


Assistant Appellate Defender Robert M. Dudek of the

South Carolina Office of Appellate Defense,

Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General S. Creighton Waters, all

of Columbia, and Solicitor Walter M. Bailey of

Summerville, for respondent.

WALLER, A.J.: A jury convicted Bradford Haigler (appellant) of

murder. A circuit judge sentenced him to life in prison. This appeal follows.




Appellant murdered John Bovain (victim) in January 1997 by

shooting him twice in the head with a handgun. The shooting occurred while

appellant, then seventeen years old, was a passenger in a car the victim was

driving. The car crashed into a building, injuring appellant. Appellant left the

scene and walked home. Appellant first told police that one of three men who

flagged down the car shot the victim. The next day, appellant confessed he had

shot Bovain with his father's pistol. He took detectives to the location where he

had hidden the pistol in a pile of yard debris while walking home.

Appellant is a black man. The jurors seated in his case included

three white men, five white women, one black man, and three black women.

The two alternate jurors, who did not participate in deliberations, were black

men. The prosecutor exercised peremptory challenges against four black

women and one white man.

Appellant raised a Batson1 challenge to the prosecutor's decision to

strike the black women as prospective jurors. The prosecutor stated he struck

the first black woman because she was very young and had gone to school with

appellant. He struck the second black woman because she had a shoplifting

conviction. He struck the fourth black woman because she was unemployed,

which meant she had an insufficient stake in the community. The trial judge

ruled all those were race-neutral reasons for the strikes.

The prosecutor stated he struck the third black woman, Tammy

Berry, for two reasons.

One reason is that she had prior jury service on a

criminal sexual conduct and came back with a not

guilty verdict. That wasn't the main reason. The main

reason was that Larry Smith2 who is a key witness

1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

2 The prosecutor apparently meant to say "Larry Williams." Orangeburg

(continued . . .)



here knows this person, says she is a good person but

she is very high strung, a critical type person,

opionated (sic) and he didn't feel like she could

deliberate well with the other jurors, would be a

polarizing individual.

Appellant argued the first reason given by the prosecutor was

pretextual because the prosecutor had accepted Gerald Smith, a white man,

who also had returned a not guilty verdict in a criminal case.3 Smith had sat

on a criminal jury eighteen to twenty years earlier, and he thought he

remembered that the verdict in the domestic shooting case was not guilty.

Berry had sat on a criminal jury five years earlier, and definitely remembered

that the verdict in the rape case was not guilty. Appellant argued the second

reason given by the prosecutor was pretextual because Berry did not stand up

during voir dire to say she knew Larry Williams when venire members were

asked whether they knew law enforcement officers involved in the case.

The trial judge denied the Batson motion, ruling both the

prosecutor's reasons were racially neutral and not, pretextual. Appellant

contends the judge erred.


Did the trial judge err in not finding a Batson



The Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution prohibits the striking of a venireperson on the basis

of race. State v. Hicks, 330 S.C. 207,499 S.E.2d 209 (citing Batson v. Kentucky,

2 (. . . continued)

Sheriff s Capt. Larry Williams led the investigation and testified at appellant's

trial. The prosecutor referred to him as "Mr. Williams" at another point during

the Batson hearing.

3 Smith did not serve on the jury because appellant struck him.



supra), cert. denied, _ U.S. _, 119 S.Ct. 552 (1998); Payton v. Kearse, 329

S.C. 51) 495 S.E.2d 205 (1998). The purposes of Batson and its progeny4 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. Powers v. Ohio, 499 U.S. 400, 404-10, 111 S.Ct. 1364, 1367-70, 113

L.Ed.2d 411,420-24 (199 1); Batson v. Kentucky, 476 U.S. at 85-87, 106 S.Ct. at

1716-182 90 L.Ed.2d at 79-81.

A Batson hearing is conducted in the following manner. First, 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. Second,

the proponent of the strike must present a race- or gender-neutral explanation.

At this second step, the proponent of the strike no longer is required to offer a

reason that is race or gender-neutral and clear, reasonably specific, and

legitimate. The reason must only be race- or gender-neutral. Third, the

opponent of the strike must show that the race- or gender-neutral explanation

given was mere pretext. State v. Adams, 322 S.C. 114,124,470 S.E.2d 366, 372

(1996) (adopting the Batson procedure set forth in Purkett v. Elem, 514 U.S.

765, 115 S.Ct- 1769, 131 L.Ed.2d 834 (1995)). The burden of persuading the

court that a Batson violation has occurred remains at all times on the opponent

of the strike. Id.

"Pretext generally will be established by showing that similarly

situated members of another race were seated on the jury. Under some

4 The Batson principles are broadly applied today. A party may not

exclude potential jurors on the basis of gender as well as race. J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 14192 128 L.Ed.2d 89 (1994). A

criminal defendant may object to race-based peremptory challenges on equal

protection grounds regardless of whether the defendant and potential juror

share the same race. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d

411 (1991). A prosecutor may challenge a defendant's use of peremptory

challenges as an equal protection violation. Georgia v. McCollum, 505 U.S. 42,

112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The prohibitions on the discriminatory

use of peremptory challenges apply in criminal and civil cases. Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).



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. at 55, 495 S.E.2d at 207;

accord State v. Adams, supra; State v. Casey, 325 S.C. 447, 481 S.E.2d 169 (Ct.

App. 1997).

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. A strike must be examined in light

of the circumstances under which it is exercised, including an examination of

the explanations offered for other strikes. State v. Oglesby, 298 S.C. 279, 37.9

S.E.2d 891 (1989). Whether a party's proffered reason for exercising a

peremptory strike is discriminatory must be determined by examining the

totality of the facts and circumstances in the record. Riddle v. State, 314 S.C.

12 443 S.E.2d 557 (1994). The composition of the jury panel is a factor that may

be considered when determining whether a party engaged in purposeful

discrimination. State v. Dyar, 317 S.C. 77, 452 S.E.2d 603 (1994); State v.

Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990).

The trial court's findings regarding purposeful discrimination are

accorded great deference and will be set aside on appeal only if clearly

erroneous. State v. Ford, Op. No. 24899 (S.C. Sup. Ct. filed February 8, 1999)

(Shearouse Adv. Sh. No. 6 at 3 1); State v. Dyar, supra (citing Hernandez v. New

York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). When the record

does not support a party's stated reason for a strike, this Court will overturn the

trial court's findings that are based on that reason. State v. Ford, supra; State

v. Patterson, 307 S.C. 180, 414 S.E.2d 155 (1992).

We hold that appellant has not carried his burden of persuasion in

proving the prosecutor engaged in purposeful discrimination during the jury

selection process. The case upon which he primarily relies, State v. Oglesby,

supra, is inapposite. In that case, the prosecutor struck three black women,

resulting in an all-white jury. The prosecutor adamantly insisted he struck the

black prospective jurors because they were patients of a doctor who was a

defense witness. The Court found the reason pretextual because the prosecutor

seated a white woman who also was a patient of the same doctor.



In this case, the prosecutor's primary reason for striking Berry was

because the lead detective in appellant's case knew her to be a high-strung,

critical person who would be a polarizing force on the jury. That was a race

neutral reason for the strike. Cf. State v. Richburg, 304 S.C. 162, 403 S.E.2d

315 (1991) (officer's apparent knowledge that venireperson had anti-law

enforcement bias may be race-neutral reason for strike); State v. Smith, 321

S.C. 471) 469 S.E.2d 57 (Ct. App. 1996) (trooper's personal contact with

venirepersons and belief they may hold anti-law enforcement bias may be race

neutral reason for strike). Berry's failure to reveal during voir dire that she was

acquainted with the lead detective is irrelevant to the Batson analysis, which

focuses upon a party's knowledge of a potential juror and reason for exercising

a peremptory challenge.

The prosecutor's second, less important reason for striking Berry

was that she had served on a criminal jury that had returned a not guilty

verdict. If we deemed that reason to be pretextual because the prosecutor

seated Smith, a white man who also had served on a criminal jury that returned

a not guilty verdict, then we would find a Batson violation under Payton v.

Kearse, supra.

In Payton v. Kearse, we rejected the dual motivation analysis,

instead adopting a "tainted" approach in which a fundamentally implausible or

pretextual reason for a strike taints any other legitimate reason for the strike.

"Once a discriminatory reason has been uncovered. -- either inherent or

pretextual -- this reason taints the entire jury selection procedure. By adopting

dual motivation, this Court would be approving a party's consideration of

discriminatory factors so long as sufficient nondiscriminatory factors were also

part of the decision to strike a juror and the discriminatory factor was not the

substantial or motivating factor. However, any consideration of discriminatory

factors in this decision is in direct contravention of the purpose of Batson which

is to ensure peremptory strikes are executed in a nondiscriminatory manner."

Id., 329 S.C. at 59, 495 S.E.2d at 210.

However, we do not believe the prosecutor's second reason was

fundamentally implausible or pretextual. First, Berry and Smith were not

similarly situated in that Berry had served on a criminal jury five years earlier

and definitely remembered the verdict, while Smith had served on a criminal

jury some twenty years earlier and was unsure of the verdict. Second, and more



importantly, the circumstances of the jury selection process indicate the

prosecutor did not strike potential jurors for racially motivated reasons. While

the prosecutor struck four black prospective jurors, he seated four black people

on the regular jury and two black alternate jurors. See State v. Dyar, supra

(composition of jury panel is one factor to consider in Batson analysis); State v.

Guess, 318 S.C. 269, 457 S.E.2d 6 (Ct. App. 1995) (finding no purposeful

discrimination, in part because jury included six members of the minority

allegedly offended); State v. Watts, 320 S.C. 377,465 S.E.2d 359 (Ct. App. 1995)

(finding no purposeful discrimination, in part because jury was composed of

eight white people and four black people, and prosecutor had struck two white


Similarly, the record contains no indication the prosecutor's stated

reasons for striking the other three black women -- that one was too young and

knew appellant, one had a criminal conviction, and one was unemployed -- were

motivated by purposeful discrimination. See State v. Ford, supra (lack of

employment or place or type of employment may be race-neutral reason for

strike); State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990) (potential juror's

knowledge of and association with defendant may be race-neutral reason for

strike); State v. Dyar, supra (past prosecution of potential juror by particular

solicitor's office may be race-neutral reason for strike); State v. Green, 306 S.C.

941 409 S.E.2d 785 (1991) (unemployment may be race-neutral reason for a

strike); State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987) (unemployment

and possible criminal records may be race-neutral reasons for a strike).


We conclude the trial judge correctly ruled that appellant failed to

prove a Batson violation.

We dispose of appellant's three remaining issues pursuant to Rule

220(b)(1), SCACR, and the following authorities: Issue 2: State v. Byram, 326

S.C. 107, 485 S.E.2d 360 (1997) (a constitutional argument is not preserved for

appeal where appellant failed to argue the constitutional basis for his request

at trial); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (finding that

issues not raised to and ruled on by trial judge are not preserved for review);

Issue 3: State v. Nichols, 325 S.C. 1112 481 S.E.2d 118 (1997); State v.

Alexander, 303 S.C. 377,401 S.E.2d 146 (1991); State v. Patrick, 289 S.C. 301,



345 S.E.2d 481 (1986), overruled on other grounds, Casey v. State, 305 S.C. 445,

409 S.E.2d 391 (1991); State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986);

State v. Williams, 321 S.C. 327P 468 S.E.2d 626 (1996); Issue 4: State v.

Nichols, 325 S.C. 111) 481 S.E.2d 118 (1997); State v. Gadsden, 314 S.C. 229,

442 S.E.2d 594 (1994); State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993);

State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).


FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.