State v. Elmore , 300 S.C. 130 ( 1989 )

Chandler, Justice:

Edward Lee Elmore (Elmore) appeals his third death sentence for the January 16, 1982, murder of Dorothy Edwards.¹ This case consolidates his appeal with the sentence review mandated by S. C. Code Ann. § 16-3-25 (1985). We affirm.

ISSUES

1. Did the Solicitor exercise peremptory challenges to strike black jurors in violation of Batson v. Kentucky, 476 U. S. 79, 106 S. Ct. 1712, 90 L. Ed. (2d) 69 (1986)?

2. Did the trial court err in qualifying juror Johnson and in refusing to qualify juror Watkins?

3. Did the trial court err in refusing to replace juror Jones with the alternate juror?

4. Did the trial court err in refusing to allow Elmore to introduce evidence regarding counsel’s inadequate investigation?

5. Did the Solicitor’s closing argument deprive Elmore of a fair sentencing trial?

I. PEREMPTORY CHALLENGES

The jury which returned the death sentence consisted of eleven whites and one black. Although the Solicitor used peremptory challenges in striking two black jurors, he accepted the first black presented. Also, a black was seated as the alternate juror.

Elmore contends that the Solicitor exercised peremptory challenges in violation of Batson v. Kentucky, 476 U. S. 79, 106 S. Ct. 1712, 90 L. Ed. (2d) 69 (1986). We disagree.

Under Batson, the defendant has the burden of establishing a prima facie case of purposeful racial discrimination in the prosecution’s selection of a jury venire. Once this showing is made, the burden shifts to the State to provide a racially neutral explanation for challenging black jurors.

Here, the trial judge found that Elmore did not make a prima facie showing of discrimination. This determination will not be reversed absent a showing of an abuse of discretion. State v. Jones, 293 S. C. 54, 358 S. E. (2d) 701 (1987); State v. Smith, 293 S. C. 22, 358 S. E. (2d) 389 (1987).

The voir dire of the 41 persons drawn must be viewed in its entirety. It must not be considered with focus upon three isolated examples. We disagree with the dissent that the Solicitor’s interrogation of potential jurors constituted a prima facie case of discrimination.

Moreover, the Solicitor presented a racially neutral explanation for challenging the two black jurors, to wit, their vacillating responses to his questions regarding the death penalty.

II. QUALIFICATIONS OF JURORS

Elmore asserts error in the trial judge’s refusal to disqualify juror Annie Johnson for cause. Failure to exhaust his peremptory challenges at trial, however, precludes his raising this claim on appeal. State v. South, 285 S. C. 529, 331 S. E. (2d) 775 (1985); State v. Elmore, 279 S. C. 417, 308 S. E. (2d) 781 (1983).

Elmore further contends the trial judge erred in disqualifying juror Grace Watkins for cause, based upon her statements during voir dire that she could not sign her name to a verdict that the defendant be sentenced to death.

A prospective juror may be excluded for cause if her views on capital punishment would prevent or substantially impair the performance of her duties as a juror. State v. Kornahrens, 290 S. C. 281, 350 S. E. (2d) 180 (1986) [citing Wainwright v. Witt, 469 U. S. 412, 105 S. Ct. 844, 83 L. Ed. (2d) 841 (1985)]. In view of her statements during voir dire, Mrs. Watkins was properly excused for cause. See State v. Drayton, 293 S. C. 417, 361 S. E. (2d) 329 (1987).

III. REFUSAL TO REPLACE JUROR WITH ALTERNATE

Elmore next contends that the trial judge erroneously denied his request to remove Mattie Jones from the jury and to replace her with the alternate juror. Mrs. Jones was accepted by the defense as a juror notwithstanding, in Elmore’s presence, she was made aware during voir dire that Elmore had been found guilty of burglary and criminal sexual conduct at a previous trial. Following jury selection, Elmore moved to have her replaced due to her awareness of these convictions.

A defendant may not challenge for cause after accepting a juror with knowledge of an objection to qualification. See State v. Johnson, 248 S. C. 153, 149 S. E. (2d) 348 (1966). Accordingly, the trial judge properly refused to remove Mrs. Jones.

IV.EVIDENCE OF INADEQUATE INVESTIGATION

The trial judge refused to allow introduction of evidence that Elmore’s case was inadequately investigated by counsel. Elmore contends this evidence constituted mitigation under State v. Stewart, 288 S. C. 232, 341 S. E. (2d) 789 (1986).

Elmore’s reliance upon Steward is misplaced.

Stewart permits the introduction in the sentencing phase of any evidence previously presented in the guilt phase. Here, Elmore does not seek to represent guilt phase evidence. His claim falls within that of ineffective assistance of counsel, which must be reserved for post-conviction relief.

V.SOLICITOR’S CLOSING ARGUMENT

Finally, Elmore contends he was denied a fair sen-fencing trial by the Solicitor’s closing argument. Specifically he excepts (1) to comments concerning the victim and (2) to entreaties that the jury not “take the easy way out.” We have reviewed the entire argument and find it to be within acceptable limits. See State v. Bell, 293 S. C. 391, 360 S. E. (2d) 706 (1987); State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984).

VI.PROPORTIONALITY REVIEW

Elmore’s sentence is not arbitrary, excessive, or disproportionate. Additionally, the evidence supports the jury’s finding of aggravating circumstances.

Affirmed.

Gregory, C. J., and Harwell and Toal, JJ., concur. Finney, J., dissents in separate opinion.

1 One black person was also selected as an alternate juror.