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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Jimmy Short, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Dillon County

Thomas W. Cooper, Jr., Judge

Opinion No. 24879

Heard November 5, 1998 - Filed January 18, 1999

AFFIRMED

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, and

Assistant Attorney General Caroline Callison Tiffin,

all of Columbia; and Solicitor Jay Hodge, of

Darlington, for petitioner.

Chief Attorney Daniel T. Stacey and Assistant

Appellate Defender Tara S. Taggart, both of S.C.

Office of Appellate Defense, of Columbia, for

respondent.

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MOORE, A.J.: We granted the State's petition for a writ of

certiorari to review the Court of Appeals' decision finding reversible error

in the denial of respondent Short's right to peremptorily challenge two

jurors. 327 S.C. 329, 489 S.E.2d 209 (Ct. App. 1997). We affirm.

FACTS

Short was convicted of armed robbery and three counts of assault

and battery of a high and aggravated nature. He was sentenced to

concurrent terms of twenty-five years for armed robbery and five years for

each count of assault and battery.

During jury selection, Short used eight peremptory challenges, all

against white venirepersons. On the State's motion, the trial judge

conducted a Batson1 hearing. He ruled two of Short's challenges were

racially motivated and set aside the jury panel. The trial judge then

directed that the jury be re-struck and that Short would not be permitted

to challenge the two venirepersons previously stricken in violation of

Batson.2

On appeal, the Court of Appeals held Short's peremptory challenges

did not violate Batson and that it was reversible error to seat the two

challenged jurors.

ISSUE

Did the Court of Appeals err in reversing Short's

convictions absent a showing of prejudice?

DISCUSSION

The State argues the trial judge properly found the two strikes in

question violated Batson and the Court of Appeals erred in reversing this

2It is within the trial judge's discretion to prohibit a peremptory

challenge against a venireperson previously struck in violation of Batson.

State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995).

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ruling.3 We disagree.

The two contested strikes were exercised against Jurors #39 and

#13. At the Batson hearing, counsel for Short explained he challenged #39

because her husband was an assistant manager at "Carl's" and "just

about every term of court, Carl's has a case in court, either somebody

shooting in the parking lot, bad checks, one thing and another." As to

#13, counsel explained the juror was employed at the same business where

counsel's brother was the manager and "maybe because he's a manager,

he's made somebody mad and they would hold it against my client."

In State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996) (citing

Purkett v.Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)), we

set forth the proper procedure for a Batson hearing. A proponent of a

strike has no burden to present an explanation that is persuasive or even

plausible. Once the proponent states a reason that is race-neutral, the

burden is on the party challenging the strike to show the explanation is

mere pretext, either by showing similarly situated jurors were seated, or

that the reason given for the strike is so fundamentally implausible as to

constitute mere pretext despite a lack of disparate treatment. In this

case, Short's explanations were facially race-neutral and the State failed to

show mere pretext. Accordingly, the trial judge erred in ruling these

strikes violated Batson and the Court of Appeals properly found error.

After finding error in the trial judge's Batson ruling, the Court of

Appeals went on to find reversible error because Short's right to exercise

peremptory challenges against the two jurors was denied him.4 The Court

of Appeals found no showing of prejudice was required because there was

no way to determine with any degree of certainty whether Short's right to

a fair trial by an impartial jury was abridged. 327 S.C. at 335, 489

judge's ruling was not preserved on appeal to the Court of Appeals because

he did not make a timely objection. Under S.C. Code Ann. § 14-7-1030

(Supp. 1997), an objection to a juror must be made before the jury is

impaneled. Before the jury was sworn, Short objected to seating the two

jurors he had previously struck. His objection was therefore timely.

4 We note there is no Batson violation when a juror against whom a

party would have exercised a peremptory challenge is ultimately seated on

the jury. Batson vindicates the juror's right to equal protection and this

right is not abridged if the juror is seated. Adams, supra.

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S.E.2d at 212.

In finding reversible error, the Court of Appeals adopted the analysis

of United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996), requiring no

showing of actual prejudice to reverse for infringement of the federal

statutory right to exercise a peremptory challenge. This rule is consistent

with that of a clear majority of state courts as well. See, e.g., Mason v.

State, 536 So.2d 127 (Ala. Crim. App. 1988); State v. Huerta, 175 Ariz.

262, 855 P.2d 776 (1993); Hagerman v. State, 613 So.2d 552 (Fla. Dist. Ct.

App. 1993); People v. Bennett, 282 Ill. App. 3d 975, 669 N.E.2d 717 (1996);

State v. Hauhi, 86 Spence v. State, 20

Md. App. 201, 314 A.2d 727 (1974); Commonwealth v. Roche, 44 Mass.

App. 372, 691 N.E.2d 946 (1998); Areanas v. Gari, 309 N.J. Super. 1, 706 A.2d

736 (1998); Fuson v. State, 105 N.M. 632, 735 P.2d 1138 (1987); City of

Dickson v. Lindstrom, 575 N.W.2d 440 (N.D. 1998); Baker v. English, 324

Or. 585, 932 P.2d 57 (1997); Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d

1101 (1987); Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991); State

v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997); Westcom v. Meunier,

164 Vt. 536, 674 A.2d 1267 (1996); Wardell v. McMillan, 844 P.2d 1052

(Wyo. 1992).

To the contrary, however, there is precedent of this Court indicating

a showing of actual prejudice is required to find reversible error in the

denial of the right to exercise a peremptory challenge. In State v. Plath,

277 S.C. 126, 284'S.E.2d 221 (1981), overruled on other grounds, State v.

Collins, 329 S.C. 23, 495 S.E.2d 202 (1998), we concluded the defendant

failed to show prejudice from the denial of a peremptory challenge where

there was ample opportunity to examine the juror on voir dire and there

was no showing of any bias or lack of impartiality on the part of the juror.

Accordingly, we found no reversible error.

We now overrule Plath and adopt the majority rule that no showing

of actual prejudice is required to find reversible error for the denial or

impairment of the right to a peremptory challenge. We note that Plath is

distinguishable from our other decisions discussing "prejudice" in the

denial of a peremptory challenge where the issue actually turned on

whether the complaining party had established he was denied the right to

exercise a peremptory challenge. Where such a denial was established, we

implicitly applied the majority rule discussed above and reversed without

a showing of actual prejudice. See State v. Anderson, 276 S.C. 578, 281

S.E.2d 111 (1981) (prejudice in wrongfully limiting number of peremptory

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challenges where defendant exercised all permitted); Moore v. Jenkins, 304

S.C. 544, 405 S.E.2d 833 (1991) (failure to use side-to-side procedure in

allowing peremptory challenges in a case with multiple defendants

prejudiced the plaintiff as a matter of law). In cases finding no prejudice,

on the other hand, we actually determined the complaining party had not

established the denial of a peremptory challenge. See Laury v. Hamilton,

317 S.C. 5031, 455 S.E.2d 173 (1995) (no prejudice where party received

greater number of strikes than that to which he was entitled under side-

to-side method); State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973) (no

prejudice in limiting number of peremptory challenges where defendants

used fewer than allowed). Before reversible error can be found, the

complaining party must of course establish the denial of his right to

exercise a peremptory challenge.

The decision of the Court of Appeals is

AFFIRMED.

FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur

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