State v. Martinez

362 S.E.2d 641, 294 S.C. 72, 1987 S.C. LEXIS 353

• Court: Supreme Court of South Carolina
• Decided: November 30, 1987
• Docket: 22807
• Status: Published

Opinions

Gregory, Justice:

Appellant was convicted of first degree burglary and first degree criminal sexual conduct. He was sentenced to consecutive terms of life imprisonment and thirty years. We affirm.

Appellant is a member of the black race. After the Solicitor struck four of the five black jurors presented, the trial judge found a prima facie showing of racial discrimination under Batson v. Kentucky, 476 U. S. 79, 106 S. Ct. 1712, 90 L. Ed. (2d) 69 (1986).¹ The Solicitor offered the following explanations for the four strikes: Juror Johnson worked for the Department of Mental Health; Juror Smith was “chronically unemployed”; Jurors Wilson and Salley were of the same sex and age group as appellant and also had “possible criminal records.”

Appellant complains the Solicitor’s use of age as an explanation is insufficient because he did not strike whites of the same age group. This argument ignores the fact that both Juror Wilson and Juror Salley were noted as having possible criminal records. Appellant also complains unemployment is insufficient as a racially neutral explanation because there is a disproportionate amount of unemployment among blacks. We reject this argument.

Batson requires only a racially neutral explanation that need not rise to the level of justification of a challenge for cause. State v. Lewis, 293 S. C. 107, 359 S. E. (2d) 66 (1987). We find the reasons stated are sufficient.

Appellant further complains the Solicitor’s explanation for his fourth strike mistakenly named the wrong juror and the actual fourth strike was never explained. The record, however, indicates that all parties acquiesced in the discussion of Juror Salley as the fourth black juror struck. (Tr. p. 18). The appellant failed to raise this objection to the trial judge or by exception on appeal and therefore this argument is improperly before us. State v. Carson, 274 S. C. 316, 262 S. E. (2d) 918 (1980).

Next, appellant contends he was entitled to a directed verdict of acquittal because the evidence was insufficient to identify him as the perpetrator.

The victim, a seventeen-year-old female, testified that on March 7, 1986, she locked the door to her apartment and went to bed between 11:00 and 11:30 p.m. She awoke sometime later to find a naked man crawling into her bed in the dark. The man rubbed the sharp edge of a knife on the victim’s arm and threatened to hurt her if she did not cooperate. He pinned her down by violently jerking her hair and raped her. She testified she scratched him on the back of the neck while struggling with him.

After raping the victim, the man forced her into the kitchen while he dressed. It was dark. Something fell out of his pocket while he was putting on his pants. The man then left the apartment.

The victim immediately went nearby to her sister’s house and the police arrived shortly thereafter. Upon returning to the victim’s apartment, a police officer found appellant’s wallet on the kitchen floor. When shown appellant’s driver’s license, the victim said her assailant appeared similar to the person pictured on the license. She described her assailant as a small-framed black man with short, wavy hair and a thin moustache.

Appellant was arrested a short time later. He matched the victim’s description and had a scratch on the back of his neck.

A motion for directed verdict is properly refused if when viewed in the light most favorable to the State, there is any evidence, direct or circumstantial, tending to establish the defendant’s guilt. State v. Schrock, 283 S. C. 129, 322 S. E. (2d) 450 (1984). The evidence that appellant’s wallet was found at the scene, that the victim said her assailant looked similar to the person pictured on appellant’s driver’s license, and that appellant’s appearance was consistent with the description given by the victim, including a scratch on the back of his neck, clearly created a jury issue whether appellant was the assailant.

Appellant’s remaining exceptions are without merit and are disposed of pursuant to Supreme Court Rule 23. See State v. Caldwell, 283 S.C. 350, 322 S.E. (2d) 662 (1984) (hearsay). Accordingly, the judgment of the circuit court is

Affirmed.

Harwell and Chandler, JJ., concur. Ness, C. J., and Finney, J., dissenting in separate opinions.

1 This case was tried before our decision in State v. Jones, 293 S. C. 54, 358 S. E. (2d) 701 (1987), which set forth procedural guidelines for a Batson v. Kentucky hearing.