Payton v. Kearse ( 1995 )

Cureton, Judge

(concurring and dissenting):

I concur in all but part 1(c) of the majority opinion where it is concluded that payton’s use of the term “redneck” to describe juror number eighteen and explain his reason for striking her does not constitute a Batson violation. Because I am of the opinion that the use of this racial stereotype evidences a subjective intent to discriminate and clearly violates the mandates of Batson, I must respectfully dissent. I further disagree with the majority’s “dual motivation” analysis, and would hold instead that this patently racial explanation for striking juror number eighteen contaminated the entire jury selection process regardless of the genuineness of other explanations for the strike.¹

This case is clearly controlled by State v. Tomlin, 299 S.C. 294, 384 S.E. (2d) 707 (1989). In Tomlin, the Supreme Court reversed a conviction where the prosecutor struck a juror because he “shucked and jived,” ruling “the use of this racial stereotype is evidence of the prosecutor’s subjective intent to discriminate and clearly violates the mandates of Batson.” Id. 384 S.E. (2d) at 710. Although two of the three explanations offered for the strike were found to be racially neutral, the court nevertheless found a Batson violation because “shucked and jived” was a racial stereotype. In so holding, the majority implicitly found that a racially motivated reason coupled alongside a valid reason will vitiate the strike.

Accordingly, I would hold Payton violated Batson, and reverse in accordance with Tomlin.

1 For a more detailed analysis of this issue see my concurring and dissenting opinion in State v. Gill, — S.C. —, 460 S.E. (2d) 412 (Ct. App. 1995) (Davis Adv. Sh. No. 16).