State v. Geddis , 313 S.C. 37 ( 1993 )

Finney, Justice

(dissenting):

I respectfully dissent. In my opinion, the record refutes the ruling of the trial judge that the solicitor’s articulated explanation for striking a black juror constituted a racially neutral reason comporting with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. (2d) 69 (1986). I would reverse and remand for a new trial, holding that the peremptory strike of the black juror was in violation of Batson v. Kentucky, supra, and this Court’s subsequent decisions implementing Batson in State v. Adams, 307 S.C. 368, 415 S.E. (2d) 402 (1992); and State v. Oglesby, 298 S.C. 279, 379 S.E. (2d) 891 (1989).

The solicitor exercised a peremptory strike against a 23-year-old black woman because she tried to “avoid putting women especially that young on my juries.” The solicitor seated two 20-year-old white women because “they showed great interest” in watching another trial on the preceding day. The trial judge stated that he noticed one of the white jurors in the audience during an earlier trial. On this basis, the trial judge then ruled that there was sufficient distinction between the two 20-year-old white women and the 23-year-old black woman to meet the racially neutral test enunciated in Batson.

Exercising peremptory challenges in a racially discriminatory manner is prohibited by Batson. In State v. Oglesby, supra, this Court ruled that the state’s articulated reason must be examined in light of the circumstances, to include scrutinizing the explanation, with cognizance of the fact that a reason racially neutral on its face my be invalidated or rendered a sham by failing to apply the reason in a neutral manner.

The record reflects a prima facie showing that the solicitor exercised a race-based peremptory strike against the 23-year-old black woman. During the ensuing Batson hearing, the solicitor reposed the state’s entire burden upon the presumed interest of the two 20-year-old white women because they were spectators at a previous trial. Solely upon the weight of the solicitor’s mere assertion and the trial judge’s concurrence that he, too, has seen one of the white 20-year-old women observing an earlier trial, the majority affirms the trial judge’s ruling that the appellant’s jury was not constitutionally defective.

The Batson holding on this- issue was clarified in State v. Green, 306 S.C. 94, 409 S.E. (2d) 785 (1991), cert. denied, _ U.S. _, 112 S.Ct. 1566, 118 L.Ed. (2d) 212 (1992). State v. Green, supra, requires the trial judge to determine first, whether the defendant has made a prima facie showing of discrimination; second, whether — in light of the circumstances' — - the solicitor’s articulated explanation is racially neutral; and third, whether the defendant has met his burden of proving purposeful discrimination.

The majority cites State v. Wilder, 306 S.C. 535, 413 S.E. (2d) 323 (1991), as analogous. There, the solicitor struck a black juror who was late and seated a white juror who also arrived late. We affirmed the trial judge’s ruling that the solicitor had carried his burden with the explanation the the white juror’s statement on the record of a desire to perform jury service outweighed the negative presumption created by her tardiness.

I find the case under consideration distinguishable from Wilder in the ruling of the trial judge here is without support in the record. Absent an affirmative showing of genuine interest on the part of the white jurors — or the lack thereof by the black juror — the solicitor’s effort, by inference, to ascribe relevant motives based upon their mere presence at some point during another trial, in my view, does not constitute a racially neutral explanation for seating the two white jurors or failing to seat the black juror. Hence, the potentially race-neutral reason of interest on the part of the white jurors and indifference by the black juror becomes a sham and a pretext for pur-' poseful racial discrimination when applied in the manner done here. See State v. Oglesby, supra.

I am persuaded that the record does not support the ruling of the trial judge that there was a sufficient distinction between the positions of the two 20-year-old white jurors and the 23-year-old black juror to render the solicitor’s explanation racially neutral. From the record, it is evident that the defendant has met his burden of proof. Based upon the conclusion that the solicitor’s articulated reason for striking the black juror was vacuous and a pretext for purposeful discrimination, in violation of the mandates of State v. Oglesby, supra, I would reverse and remand for a new trial.

Toal, J., concurs.