State v. Gill

Howell, Chief Judge:

Michael Gill appeals from his convictions for distribution of crack cocaine and distribution of crack cocaine within proximity of a park. We affirm.

I.

In November 1991, the South Carolina Law Enforcement Division (SLED) was working with the Rock Hill Police Department, investigating street-level distribution of drugs. On November 7, 1991, an undercover SLED agent fitted with a body transmitter was approached outside a Rock Hill store by a man identifying himself as Mike. The agent told Mike she was looking for a friend to get “something” — meaning drugs, but she discovered her friend was in jail. Mike asked the agent if she wanted “that thing,” to which the agent responded that she did. Mike then walked across the street to the side of a house. The agent got in her car and, using her transmitter, relayed a description of Mike to the Rock Hill police officers making up the surveillance team. Mike returned within two to three minutes, and got into the agent’s car. He handed the agent a plastic bag containing two off-white, rock-like substances. The agent took the bag and gave Mike a $20 bill. The two continued talking after the sale, and Mike left the vehicle approximately eight to ten minutes from the time he first approached her. Subsequent testing revealed the substance to be crack cocaine.

*286As the agent drove away she again relayed Mike’s description and his probable destination to the surveillance team. Within approximately one minute after the SLED agent drove away, two Rock Hill police cars pulled in front of the house the undercover agent had just described. Two officers approached three black males standing in front of the house. Only one of the men matched the agent’s description of Mike. The officers asked each man for identification; the man matching Mike’s description produced identification indicating that his name was Michael Gill. Because of the ongoing nature of the investigation, Gill was not arrested until eight months later. At trial, the undercover agent unequivocally identified Gill as the person from whom she bought the drugs. Gill testified at the trial, and presented an alibi defense.

Gill raises two issues on appeal. First, Gill contends the State exercised one of its peremptory strikes in a racially discriminatory manner. Second, Gill contends the trial court erred by failing to require the State to produce a summary report prepared by the police in preparation for trial.

II.

During jury selection, the State exercised three peremptory challenges, one against a black female and two against white males. Gill objected to the State’s strike against the black female juror, and requested a hearing to determine the propriety of the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. (2d) 69 (1986). The assistant solicitor explained the strike:

She was struck for two reasons, your honor, two and a half actually. The first, she did not want to serve on the jury this time, she asked for a hardship excuse, and I did-n’t think that would make her a good juror, she would be more reluctant and I wanted jurors who were enthusiastic about service and not someone who was worried about something happening somewhere else. That’s the first reason. The second reason — . ... The other reason is Mr. Brown informed me that that juror lived on the same street as the defendant and it’s a possibility that she may have known him. She might not have known him at first, but she might have sat in the jury box through half the *287trial and then suddenly realized she knew him and that might have caused problems.1

The trial court asked the solicitor whether there were any other people selected for the jury who had asked for a hardship excuse. The solicitor replied, “No sir, your honor. The notes don’t reflect it — Mr. Grant’s [notes] don’t reflect it.”2 As to the State’s second reason, Gill’s attorney informed the court that Gill at one point had lived on the same street as the juror, but that he had not lived in the area for at least two years. The trial court found the State’s two reasons racially neutral, but stated that if any of the sitting jurors had also asked for a hardship, it would look at the matter again.

The trial court denied defense counsel’s request to view the solicitor’s notes taken during venire to determine whether any other jurors had requested a hardship. However, counsel did review the record with the court reporter and determined that a white female juror had also requested a hardship, but was not excused by the State. The assistant solicitor offered the other solicitor’s notes and informed the trial court that he was unaware that the white juror had requested a hardship. While the trial court expressed concern with the State’s reliance on incomplete information, he nonetheless denied the Batson motion because the State’s second reason was racially neutral.

It is well established that Batson prohibits the State from exercising its peremptory strikes in a racially discriminatory manner. If a party raises a Batson objection, the trial court should hold a hearing to determine whether the peremptory strikes were properly exercised. State v. Chapman, 317 S.C. 302, 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, *288409 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). The explanation must be related to the case to be tried, clear, reasonably specific, and legitimate. State v. Grandy, 306 S.C. 224, 411 S.E. (2d) 207 (1991).3 If the proffered reason is 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. Oglesby, 298 S.C. 279, 379 S.E. (2d) 891 (1989).

Here, Gill contends that the State’s hardship explanation is pretext, because the State did not strike a white juror who also had requested a hardship exemption. According to Gill, this showing of pretext establishes a Batson violation without regard to the other reason proffered by the State, or the other circumstances surrounding the strike. We disagree.

Preliminarily, we question whether the State’s hardship explanation in fact is pretextual. The burden is on the party challenging the strike to prove that the solicitor’s allegedly neutral reason was pretextual because it was not applied in a neutral manner. Sumpter v. State, 312 S.C. 221, 439 S.E. (2d) 842 (1994). Here, the white juror apparently requested to be excused from jury duty because her husband was ill. The reason for her requested exemption is compelling, and does not necessarily indicate unwillingness to serve on the jury. However, nothing in the record indicates why the black juror sought an exemption. If her reason was less legitimate or compelling than that of the white juror, it would be more in*289dicative of her disinterestedness and reluctance to serve on the jury. In such a case, striking her but not striking the white juror might not constitute a Batson violation. See State v. Dyar, 317 S.C. 77, 452 S.E. (2d) 603 (1994), reh’g granted (Sept. 8, 1994) (where the State struck a black juror who had criminal charges but did not strike a white juror with criminal charges, no Batson violation because the charges against the black juror were handled by the office of the solicitor involved in the case against Dyar, and no evidence was presented showing that the charges against the white juror had been handled by that solicitor); State v. Wilder, 306 S.C. 535, 413 S.E. (2d) 323 (1991) (no Batson violation where solicitor excused two black jurors because they were late but sat a white juror who was also late, because the white juror expressed a desire to serve on the jury).

Nonetheless, we will assume Gill has adequately established that the hardship excuse was pretextual; however, this assumption does not end our inquiry. In addition to her request for an exemption, the State also struck the black juror because Gill previously lived on the same street as the juror. Striking a juror who lived near the defendant has been held to be a valid use of a peremptory strike. State v. Johnson, 302 S.C. 243, 395 S.E. (2d) 167 (1990). Thus, the question before this Court is whether a pretextual explanation for a peremptory strike necessarily constitutes a Batson violation when a valid, race-neutral explanation for the strike is also offered. We conclude it does not. See State v. Martinez, 294 S.C. 72, 362 S.E. (2d) 641 (1987) (no Batson violation where one of the State’s two reasons proffered for its exercise of peremptory strikes was invalid, but the remaining reason was valid).

The determinative issue in any Batson claim is whether, in light of the totality of the circumstances, a party engaged in purposeful, invidious discrimination. In other areas of equal protection jurisprudence it is established that an action motivated in part by an impermissible reason will not necessarily be invalid if the same action would have been taken in the absence of the impermissible motivation. See Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. (2d) 471 (1977); see also United States v. McMillon, 14 F. (3d) 948, 952, n. 3 (4th Cir. 1994) (a *290showing of pretext does not automatically result in a finding of discrimination; the defendant must show, “through all relevant circumstances, that the prosecutor intentionally exercised his strike because of racial concerns.”).

Ultimately, it is the trial court which must determine whether a party has engaged in purposeful discrimination through the exercise of peremptory strikes. An invidious discriminatory purpose may be inferred from the totality of the relevant facts; however, the trial court’s finding at this stage will largely turn on an evaluation of credibility. State v. Green, 306 S.C. 94, 409 S.E. (2d) 785 (1991). As the United States Supreme Court has recognized, the decisive question often will be whether the proffered explanation should be believed:

There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”

Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed. (2d) 395 (1991) (citations omitted). Whether a Batson violation has occurred must be determined by examining the totality of the facts and circumstances in the record. Riddle v. State, — S.C. —, 443 S.E. (2d) 557 (1994), cert. denied, — U.S. —, 115 S.Ct. 518, 130 L.Ed. (2d) 424 (1994).

Here, the trial court expressed some concern about the State’s reliance on notes prepared by another solicitor, but the court did state that it did not believe the information about the white juror was intentionally omitted.4 The trial court did not specifically rule on the validity of the hardship explanation, relying instead on the second reason given for the strike. However, the statements of the court make it *291clear that the court did not believe the State engaged in purposeful discrimination. This credibility determination by the trial court is entitled to great deference on appeal. Hernandez; State v. Green, 306 S.C. at 98, 409 S.E. (2d) at 788.

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 State used only three of its peremptory strikes, and seated three black jurors before exercising the strike at issue in this case. 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.

We are aware that, at first blush, our opinion here seems inconsistent with that of our Supreme Court in State v. Tomlin, 299 S.C. 294, 384 S.E. (2d) 707 (1989). In Tomlin, the State offered valid reasons for the strike of a black male, but also justified the strike because the juror “shucked and jived” while approaching the microphone. The Supreme Court held the “shucked and jived” statement evidenced the State’s “subjective intent to discriminate,” and thus constituted a Batson violation. Id. We do not read Tomlin as creating an absolute rule that an invalid explanation for a peremptory strike taints any valid reason offered for the strike, and thus amounts to a per se Batson violation. Rather, we understand Tomlin as standing for the proposition that, if the invalid reason is so patently racial or derogatory in nature, the court may view the invalid reason as the controlling reason for the strike. Any other reading of Tomlin would be inconsistent with established Equal Protection jurisprudence. See Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. (2d) 471 (1977); United States v. McMillon, 14 P. (3d) 948, 952, n. 3 (4th Cir. 1994).

III.

Gill also assigns error to the trial court’s refusal to require the disclosure of a summary report prepared by the police in *292preparation of the State’s case. This issue arose during Gill’s cross-examination of Detective Barnhill. During he narcotics transaction, Barnhill was in a support vehicle listening (via the body transmitter) to the conversation between the undercover agent and “Mike.” He had received Mike’s clothing description twice, and after the undercover agent had departed the scene, Detective Barnhill approached Mike and asked for his identification. The pertinent portion of the cross-examination was as follows:

Q: “Did you make any field notes?”
A: “No, ma-am.”
Q: “So, you have no notes of what occurred on that night, you’re just relying on your memory, aren’t you?”
A: “Memory and report, we do have a summary.”
Q: “The report being the arrest report, I mean the incident report?”
A: “The summary.”
Q: “The summary?”
A: “Uh huh.”
Q: “What summary would that be, Officer Barnhill?”
A: “Just a case summary, ma’am.”
Q: “Did you turn that over to the solicitor’s office?”
A: “Yes, ma’am.”

At trial Gill argued that the summary had not been turned over to the defense pursuant to his discovery request. Gill contended the information in the summary was material and that he therefore was entitled to the report. The State contended the report was not subject to disclosure and that “there is absolutely nothing exculpatory” in it. The trial court did not require the disclosure and denied Gill’s motion for a mistrial.

On appeal, Gill argues he was entitled to examine the summary report because it was being used by the witness to refresh his present recollection. Gill’s argument at trial, however, was apparently based on Rule 5, SCRCrimP and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. (2d) 215 (1963). Because he did not raise the present recollection refreshed argument at trial, we do not address it on appeal. See State v. White, 311 S.C. 289, 428 S.E. (2d) 740 (1993); State v. Meyers, 262 S.C. 222, 203 S.E. (2d) 678 (1974). To the *293extent that Gill’s argument on appeal can be viewed as also raising the discovery argument raised at trial, we find no error.

Our rules of criminal procedure require that, upon request by the defendant, the State allow the defendant to inspect and copy any papers or documents in the State’s possession or control which are material to the preparation of his defense. Rule 5(a)(1)(C), SCRCrimP. However, Rule 5 specifically excludes from this disclosure requirement “reports, memoranda, or other internal prosecution documents made by . . . prosecution agents in connection with the investigation or prosecution of the case.” Rule 5(a)(2), SCRCrimP. The summary report was prepared by the Rock Hill police officers for the solicitor’s use in prosecuting the case. Thus, the summary was an internal prosecution document and not subject to discovery.

Likewise, the State had no obligation under Brady to turn over the summary report. Brady requires that the state disclose evidence in its possession which is favorable to the accused and material either to guilt or punishment, including impeachment evidence. State v. Bryant, 307 S.C. 458, 415 S.E. (2d) 806 (1992). Impeachment or exculpatory evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Clark v. State, — S.C. —, 434 S.E. (2d) 266 (1993). Here, the undercover agent unequivocally identified Gill, and the summary report was consistent with the testimony of all the officers involved. Because the summary report would only have bolstered the testimony of the officers, there is no reasonable probability that the result of the trial would have been different, and there was no obligation to disclose the report. Id.

Accordingly, for the foregoing reasons, the decision of the trial court is hereby

Affirmed.

Connor, J., concurs. Cureton, J., concurs in part and dissents in part in a separate opinion.

The State also offered as a “half reason” that the juror was unemployed. As to that reason, the trial court commented, “Well it either is or isn’t, so don’t — half reasons don’t work.” The State then dropped its reliance on the proffered “half reason.”

The assistant solicitor who tried the case apparently was not present when the jury pool was qualified, and worked from a list prepared by another solicitor when selecting the jury.

We note, however, that the United States Supreme Court recently held, in a per curiam opinion, that to rebut a prima facie case of discrimination, the proffered reason must only be facially neutral; the explanation need not be “persuasive, or even plausible.” Purkett v. Elem, — U.S. —, 115 S.Ct. 1769, 131 L.Ed. (2d) 834 (1995). While the Court did note that implausible or fantastic explanations probably will be found to be pretexts for purposeful discrimination at the third step of the Batson procedure, apparently any explanation for a strike that is not inherently racial is sufficient to rebut the prima facie case. It is uncertain whether our Supreme Court will adopt this more lenient standard, or will determine that the stricter standard articulated in Grandy is required under the Equal Protection clause of the South Carolina Constitution. S.C. Const, art. I, § 3.

We share some of the concerns expressed by the trial court. Of course, the State is entitled to consider information gathered through other sources when selecting a jury. However, if the information is gathered or presented in a discriminatory manner (for example, if the person present during the qualification of the venire makes notes only about black jurors), decisions to strike based on that information will not be sustained. Intentional discrimination cannot be protected by laundering the discrimination through an absent party.