
    24136
    The STATE, Respondent v. Tafford Lee DYAR, Appellant.
    (452 S.E. (2d) 603)
    Supreme Court
    
      Lesley M. Coggiola and South Carolina Office of Appellate Defense, Columbia, for appellant.
    
    
      Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., Asst. Atty. Gen. Miller W. Shealy, Jr., and Sol. Richard A. Harpootlian, Columbia, for respondent.
    
    Heard May 18, 1994;
    Decided Aug. 15, 1994.
    Ord. Granting Reh. but Adhr. to Orig. Op. Dec. 15, 1994.
   Chandler, Justice:

Tafford Lee Dyar was convicted of murder, first-degree criminal sexual conduct and grand larceny and was consecutively sentenced to life, 30 years and 10 years, respectively.

We affirm.

During jury selection, the State exercised peremptory challenges against four black jurors and one white. Pursuant to Dyar’s Batson motion, the Solicitor explained his strike of juror number 242, Jeffrey Scott, a black male, as follows:

We struck him because he had recently been prosecuted by my office. He had been arrested as you remember him testifying for malicious destruction of personal or real property. I don’t have my specific note in front of me. And he was arrested. He was arrested by Richland County Sheriff’s Department and prosecuted. The charges were ultimately dismissed. He was the only juror — we struck all jurors who had been, whether white or black, he was the only one that came up that had been arrested and had charges dismissed in that fashion.

Counsel for Dyar responded that, in fact, a white alternate juror had charges for possession with intent to distribute marijuana dismissed in 1988. Another white juror had been charged with fraudulent checks and paid a fine. Defense counsel pointed out that, prior to trial, he had received from the Solicitor’s office the list of venire persons with prior records; the list included both white jurors’ names. The Solicitor then certified to the Court that he was unaware of the white jurors’ prior records, but that he personally had been involved in prosecuting the black juror, Scott, and that only juror Scott came forward in answer to the Judge’s inquiry concerning prior arrests.

Dyar’s jury was composed of eight white and four black jurors; one white and one black were alternates.

Trial court ruled there was no Batson violation.

ISSUE

Did the Solicitor violate Batson v. Kentucky?

DISCUSSION

The striking of venire persons on account of race violates the equal protection clause of the Fourteenth Amendment. Batson, supra. Although Dyar is white, he has standing to object to the prosecutor’s allegedly race-based peremptory challenge of black venire persons. Powers v. Ohio. Once a defendant establishes a prima facie Batson violation, the burden shifts to the prosecution to present a neutral explanation for the challenges. State v. Jones, 293 S.C. 54, 358 S.E. (2d) 701 (1987). The State’s explanation must be clear, related to the case to be tried, reasonably specific and legitimate. State v. Grandy, 306 S.C. 224, 411 S.E. (2d) 207 (1991). The defendant then has the burden to prove that the solicitor’s allegedly neutral reasons are pretext, having not been applied equally to white jurors. Sumpter v. State, — S.C. —, 439 S.E. (2d) 842 (1994); State v. Johnson, 302 S.C. 243, 395 S.E. (2d) 167 (1990); State v. Oglesby, 298 S.C. 279, 379 S.E. (2d) 891 (1989). The trial court’s findings regarding purposeful discrimination are accorded great deference and are to be set aside only if clearly erroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed. (2d) 395 (1991). The composition of the jury is a relevant consideration. State v. Johnson, supra; U.S. v. Joe, 928 F. (2d) 99 (4th Cir. 1991).

In Sumpter, supra, a black prospective juror was struck for a prior DUI “involvement” which the particular solicitor’s office had prosecuted. A white juror with a prior DUI conviction was seated. A majority of this Court found no no Batson violation, as the defendant failed to show that the two jurors were similarly disqualified, i.e., that the particular solicitor’s office had handled the white juror’s DUI.

Here, the prosecution of Juror Scott had been handled by the particular Solicitor’s office. Moreover, Juror Scott was the only juror who responded on voir dire when asked about a prior record. No evidence was presented that the white jurors’ offenses had been handled by the particular Solicitor’s office. Under Sumpter; Dyar has failed to meet his burden of establishing a Batson violation.

Dyar’s remaining issue is affirmed pursuant to Rule 220(b)(1) SCACR and the following authority: State v. Ford, 301 S.C. 485, 392 S.E. (2d) 781 (1990).

Affirmed.

Harwell, C.J., and Moore, Acting Judge, concur.

Toal and Finney, JJ., dissent in separate opinion.

Toal, Justice,

dissenting:

I must respectfully dissent, and while I could just rely on my dissent in Sumpter v. State, — S.C. —, 439 S.E. (2d) 842 (1994), I feel it necessary to comment on today’s majority opinion.

The majority appears to place an additional, if not insurmountable, burden on the defendant. In Sumpter, a potential black juror was struck for a prior DUI “involvement” that the solicitor’s office had previously prosecuted. This same solicitor also seated a white juror with a DUI “conviction,” which was handled by a different solicitor’s office. The majority in Sumpter held that the defendant failed to prove that the same solicitor’s office handled the prosecution, consequently, there was no proof of a Batson violation.

The holding in Sumpter forces a defendant to offer proof of which solicitor’s office handled the prosecution, and now the majority goes even further by requiring a defendant to show which solicitor within the same office handled the prosecution. It does not require a deep analysis to realize that today’s rule is fraught with enough practical problems to render a defendant powerless to counter invidious discrimination. Here, the defendant showed that a white juror prosecuted by the same office was seated as a juror, while a very similarly situated black juror was struck. To accept the reasoning that it was not this particular solicitor begs the question.

On the present facts, five peremptory strikes were exercised by the solicitor. Three removed black males, one removed a black female, and one removed a white male. Defense counsel informed the trial court that at least two of the seated white jurors had a similar background. The fact which the majority ignores is that defense counsel obtained this information from a list containing juror background information which was provided by the very same solicitor’s office. The only inference I can draw from these facts is that the solicitor’s reasoning was pretextual, and therefore, a Batson violation.

This continued departure from our previous precedent concerning the use of pretextual reasons to shield racial discrimination is alarming. See State v. Sumpter, supra; State v. Johnson, 302 S.C. 243, 395 S.E. (2d) 167 (1990); State v. Oglesby, 298 S.C. 279, 379 S.E. (2d) 891 (1989). Accordingly, I would adhere to my dissent in Sumpter v. State, supra, and reverse the trial court.

Finney, Acting Judge, concurs.

ORDER

We granted appellant’s petition for rehearing. After hearing oral arguments, we adhere to the original majority opinion. State v. Dyar, Op. No. 24136 (S.C. Sup. Ct. filed August 15, 1994) (Davis Adv. Sh. No. 19 at 16).

(s) A. Lee Chandler C.J.

(s) Jean H. Toal A.J.

(s) James E. Moore A.J.

(s) John H. Walker Jr. A.J.

I adhere to my original dissent.

(s) Ernest A. Finney. Jr. A.J. 
      
      
        Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. (2d) 69 (1986).
     
      
       499 U.S. 400, 111 S.Ct. 1364,113 L.Ed. (2d) 411 (1991).
     
      
       The dissenting opinion in Sumpter was based upon the premise that a defendant need only show a white juror was seated when a black juror was struck for the same reason. — S.C. at-, 439 S.E. (2d) at 844-45. The Fourth Circuit, however, recently held that a showing of pretext does not automatically result in discrimination. The defendant must show, “through all relevant circumstances, that the prosecutor intentionally exercised his strike because of racial concerns.” U.S. v. McMillon, 14 F. (3d) 948, 952, n. 3 (4th Cir. 1994) (Emphasis supplied.).
     
      
      
        Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. (2d) 69 (1986).
     
      
       One seated white juror had charges for possession with intent to distribute marijuana dismissed, and a second white juror had been charged and fined for two counts of fraudulent checks. Regarding one of the struck black jurors, the solicitor stated that, “we struck him because he had recently been prosecuted by my office. ... He was arrested by Richland County Sheriff’s Department and prosecuted. The charges were ultimately dismissed.” [ROA at p. 2]
     