April 13, 2016
from Spartanburg County Roger L. Couch, Circuit Court Judge
Appellate Defender Robert Michael Dudek and Appellate
Defender David Alexander, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney
General John W. McIntosh, Deputy Attorney General Donald J.
Zelenka, and Senior Assistant Deputy Attorney General Melody
J. Brown, all of Columbia, and Solicitor Barry J. Barnette,
of Spartanburg, for Respondent.
Bowers Jefferson, of Wyche, P.A., of Greenville, for Amicus
Curiae National Crime Victim Law Institute. Lindsey D. Jacobs
and Patricia Revenhorst, both of Greenville, for Amicus
Curiae South Carolina Victim Assistance Network.
a consolidated direct appeal and mandatory review from a
sentence of death. A jury convicted Ricky Lee Blackwell of
kidnapping and killing eight-year-old Heather Brooke Center
("Brooke"), the daughter of his ex-wife's
boyfriend, and recommended a sentence of death. Following
sentencing, Blackwell appealed to this Court. In his appeal,
Blackwell contends the trial court erred in: (1) finding him
eligible for the death penalty despite evidence of mental
retardation; (2) failing to disqualify a juror for
cause; (3) denying his Batson challenge; (4)
prohibiting him from cross-examining a State witness using
privileged statements the witness made to a mental health
counselor and declining to accept the proffer of the mental
health records as an exhibit; (5) declining to admit notes of
two hospital chaplains as evidence that he was remorseful;
and (6) failing to correctly instruct the jury regarding a
finding of mental retardation during the penalty phase of the
trial. For reasons that will be discussed, we affirm
Blackwell's convictions and sentence of death.
Factual / Procedural History
twenty-six years of marriage, Blackwell's wife, Angela,
entered into an adulterous relationship with Bobby Center in
2008. By all accounts, Blackwell was devastated when Angela
left him. Following the breakup, Blackwell attempted suicide,
suffered financial problems, and was forced to turn to his
parents for support.
to Angela, on July 8, 2009, Blackwell came to her
parents' house to discuss insurance matters. While there,
Blackwell chastised her about not visiting their grandsons
and urged her to go see them that day. Angela testified she
was going to take Brooke swimming at Center's house that
day and intended to pick up her grandsons to take them along.
When she arrived at her daughter's home, she did not see
her daughter's car. Assuming that her daughter was not
home, Angela began to drive away. As she was leaving,
Blackwell flagged her down and informed her that their
daughter went to the store but that their son-in-law had the
children. Angela testified she got out of the car to secure a
dog in order that it would not bite Brooke. When Angela
turned around, she saw that Blackwell had grabbed Brooke and
was holding a gun to the child. Blackwell ignored
Angela's pleas for him to release Brooke. Instead,
Blackwell stated that Angela had "pushed this too far,
" that she "did this, " and that she could let
him know "what Bobby thinks of this." Blackwell
then fatally shot Brooke. Following the shooting, Blackwell
fled into the woods behind his daughter's home. When law
enforcement surrounded him, Blackwell shot himself in the
stomach and was taken to the hospital. While being
transported to the hospital and waiting for treatment,
Blackwell gave inculpatory statements to the law enforcement
officers who questioned him.
Spartanburg County grand jury indicted Blackwell for
kidnapping and murder, the State served Blackwell with notice
that it intended to seek the death penalty. Blackwell was
evaluated, at the request of defense counsel, and deemed
competent to stand trial. Approximately three years later,
defense counsel claimed that Blackwell is mentally retarded
and, thus, ineligible to receive the death penalty pursuant
to Atkins v. Virginia, 536 U.S. 304
(2002). As a result, the trial court conducted a
hearing pursuant to Franklin v. Maynard, 356 S.C.
276, 588 S.E.2d 604 (2003). The court ruled that Blackwell
failed to prove he is mentally retarded and the case
proceeded as a capital jury trial.
jury found Blackwell guilty of kidnapping and murder. At the
conclusion of the penalty phase of the trial, the jury
specifically found, via a special verdict form, that
Blackwell is not mentally retarded. The jury recommended a
sentence of death, finding the State proved the aggravating
circumstances that the murder involved a child under the age
of eleven and was committed while in the commission of
kidnapping. The trial court sentenced Blackwell to
death for murder, noting the kidnapping sentence was subsumed
into the sentence for murder.
the denial of his post-trial motions, Blackwell appealed his
convictions and sentence to this Court.
Standard of Review
criminal cases, this Court sits to review errors of law only
and is bound by factual findings of the trial court unless an
abuse of discretion is shown." State v. Laney,
367 S.C. 639, 643, 627 S.E.2d 726, 729 (2006). An abuse of
discretion occurs when the court's decision is
unsupported by the evidence or controlled by an error of law.
State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884
Pre-Trial Atkins Determination
argues the trial court erred in making the pre-trial
determination that he was eligible for the death penalty
given the evidence "conclusively demonstrated" that
he is mentally retarded. Consequently, Blackwell maintains
that by proceeding as a capital case and ultimately
sentencing him to death, the trial court violated his rights
under the Eighth Amendment as interpreted by the United States
Supreme Court ("USSC") in Atkins v.
Virginia, 536 U.S. 304 (2002) and adopted by this Court
in Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604
Blackwell's counsel advised the State and the trial court
that he would assert that Blackwell is mentally retarded and,
thus, exempt from the death penalty, the trial court held a
pre-trial hearing pursuant to Franklin. During this
hearing, the court heard testimony from three mental health
experts: (1) Dr. Kimberly Harrison, a forensic psychologist
with the South Carolina Department of Mental Health
("SCDMH") who was offered by the State, testified
that she had evaluated Blackwell, deemed him competent to
stand trial, and did not discern any evidence of mental
retardation; (2) Dr. Ginger Calloway, a forensic psychologist
who was offered by the defense, opined that Blackwell met the
definition of "mental retardation" because he
exhibited: sub-average intellectual ability based on his I.Q.
scores; significant deficits in adaptive functioning such as
communication, home living, social interaction,
self-direction, and functional academics; and that these
deficits existed prior to the age of eighteen; and (3) Dr.
Gordon Brown, a forensic psychologist employed with the SCDMH
who was offered by the State to rebut Dr. Calloway's
opinion, opined that Blackwell did not meet the criteria for
the hearing, the court considered the voluminous evidence
that formed the basis of the experts' conclusions and
reports, which included Blackwell's school records, I.Q.
scores, employment records, medical and mental health
records, records from Blackwell's immediate family, and
interviews with several of Blackwell's family members and
written order, the trial court ruled that, while there were
several factors that would "raise the possibility of
mental retardation, " Blackwell had failed to prove by
the preponderance of the evidence that he was ineligible to
receive the death penalty. As will be discussed, we are
unpersuaded by Blackwell's claim that the trial court
committed reversible error in rendering the pre-trial
Atkins, the USSC held the execution of a mentally
retarded person is cruel and unusual punishment prohibited by
the Eighth Amendment to the United States Constitution, which
is applicable to the states through the Fourteenth Amendment.
Atkins, 536 U.S. at 321. However, the USSC in
"Atkins 'did not provide definitive
procedural or substantive guides for determining when a
person who claims mental retardation' falls within the
protection of the Eighth Amendment." Hall v.
Florida, 134 S.Ct. 1986, 1998 (2014) (quoting Bobby
v. Bies, 556 U.S. 825, 831 (2009)). Instead, the USSC
left to the states "the task of developing appropriate
ways to enforce the constitutional restriction upon [their]
execution of sentences." Atkins, 536 U.S. at
317 (quoting Ford v. Wainwright, 477 U.S. 399, 405
General Assembly has defined "mental retardation"
to mean "significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental
period." See S.C. Code Ann. §
16-3-20(C)(b)(10) (2015). While this Court has strictly
adhered to this statutory definition, it has recognized that
the USSC in Atkins "relied on a clinical
definition of intellectual disability which required not only
sub-average intellectual functioning, but also significant
limitations in adaptive skills such as communication,
self-care, and self-direction that manifested before age
eighteen." State v. Stanko, 402 S.C. 252, 286,
741 S.E.2d 708, 726 (2013).
this Court has outlined the procedure for the determination
of whether a defendant is mentally retarded under
Atkins. Franklin v. Maynard, 356 S.C. 276,
588 S.E.2d 604 (2003). In Franklin we explained
the trial judge shall make the determination in a pre-trial
hearing, if so requested by the defendant or the prosecution,
after hearing evidence, including expert testimony, from both
the defendant and the State. The defendant shall have the
burden of proving he or she is mentally retarded by a
preponderance of the evidence.
If the judge finds the defendant to be mentally retarded by a
preponderance of the evidence in the pre-trial hearing, the
defendant will not be eligible for the death penalty. If,
however, the judge finds the defendant is not
mentally retarded and the jury finds the defendant guilty of
the capital charge, the defendant may still present
mitigating evidence that he or she had mental retardation at
the time of the crime. See S.C. Code Ann. §
16-3-20(C)(b)(10) (2003). If the jury finds this mitigating
circumstance, then a death sentence will not be imposed.
Franklin, 356 S.C. at 279, 588 S.E.2d at 606
(footnote and citations omitted); see State v.
Laney, 367 S.C. 639, 649, 627 S.E.2d 726, 732 (2006)
(concluding that "mental retardation is a threshold
issue, decided by the trial judge as a matter of law in a
pre-trial hearing, that determines whether a defendant is
eligible for capital punishment at all").
this Court has established the procedural guidelines for a
pre-trial Atkins determination, it has never
expressly enunciated the appellate standard of review. We
conclude, as have other jurisdictions, that a pre-trial
Atkins determination is analogous to a preliminary
finding of whether a defendant is competent to stand trial
and, thus, should be reviewed under the same appellate
standard. See State v. Maestas, 316 P.3d 724 (Kan.
2014) (concluding that preliminary finding that there is
"reason to believe" the defendant is mentally
retarded is comparable to the preliminary "reason to
believe" finding of whether a defendant is competent to
stand trial and determining that the same appellate standard
of review should apply to both initial determinations);
see also Franklin, 356 S.C. at 279, 588 S.E.2d at
606 (comparing defendant's burden of proving that he or
she is mentally retarded with defendant's burden of
proving incompetence by a preponderance of the evidence).
result, we hold that a trial judge's ruling regarding an
Atkins determination will be upheld on appeal if
supported by the evidence and not against its preponderance.
Cf. State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683,
685 (2002) ("The defendant bears the burden of proving
his lack of competence [to stand trial] by a preponderance of
the evidence, and the trial judge's ruling will be upheld
on appeal if supported by the evidence and not against its
preponderance."); see State v. Strode, 232
S.W.3d 1, 8 (Tenn. 2007) ("When an accused is afforded
an evidentiary hearing on the merits of a motion [to
determine whether the defendant was mentally retarded at the
time of the offense] in the trial court, the findings of fact
made by that court are binding upon the appellate court
unless the evidence contained in the record preponderates
against those findings.").
this standard of review, we now analyze the trial court's
Atkins determination. Although Blackwell suggests
the trial court committed an error of law in reaching its
conclusion, he fails to identify any specific error. Instead,
he expresses his disagreement with the trial court's
credibility determinations and the weight afforded to the
experts' opinions and then appears to argue that these
decisions equate to errors of law. Because the trial court is
the sole judge of the credibility of the witnesses and the
weight to be given their testimony, we must defer to the
court's determinations. See State v. Kelly, 331
S.C. 132, 149, 502 S.E.2d 99, 108 (1998) (recognizing, in
reviewing a trial judge's determination of a
defendant's competency to stand trial, that the judge is
the sole judge of the credibility of the witnesses and the
weight to be given their testimony and is entitled to
evaluate conflicting testimony).
as we discern no legal error,  we believe Blackwell merely
seeks for this Court to re-evaluate the testimony and
evidence presented during the pre-trial Atkins
proceedings. Under this Court's highly deferential
standard of review, we find the trial court correctly
determined that Blackwell failed to prove by a preponderance
of the evidence that he is mentally retarded and, thus,
ineligible to receive the death penalty.
we note the trial court correctly identified and made its
determination applying the statutory definition of
"mental retardation." Moreover, contrary to
Blackwell's claim, the trial court did not base its
decision solely on the fact that Blackwell was able to
successfully obtain a commercial driver's license and be
employed as a truck driver. The court relied on other
factors, including Blackwell's school performance and
full employment history. Additionally, the court explained
why it gave greater weight to Dr. Brown's report, noting
that the report was directed at an evaluation of
Blackwell's "formative years" and was
consistent with the "functional adaptions" required
by the statutory definition of "mental
retardation." The court also discounted some of Dr.
Calloway's findings as it questioned whether
"adequate information" was used and believed Dr.
Calloway improperly "made subjective determinations
concerning the results obtained and weighted responses of
various informants differently."
find the trial court's factual determinations are
supported by evidence in the record. Admittedly, it is
concerning that Blackwell, at 54 years old, scored 63 and 68
on the I.Q. tests given in preparation of the Atkins
hearing. However, in terms of "significantly sub-average
general intellectual functioning, " the trial court
readily acknowledged the recent I.Q. scores but was persuaded
by evidence that: (1) Blackwell, prior to the age of
18, scored between 68 and 87 on standard school I.Q.
tests; (2) Blackwell made "reasonably sufficient grades
during his school career"; (3) at the age of 18,
Blackwell was found to read at the 5.8 grade level, completed
arithmetic problem solving at the 6.6 level, and completed
arithmetic computation at the 5.2 level; and (4) Blackwell
dropped out of high school in the eleventh grade despite
having earned significant credits toward graduation.
court also recognized that Blackwell's recent I.Q. scores
may have been caused by events in his adult life that
adversely affected his current cognitive ability. For
example, the court accurately referenced the fact that
Blackwell received chemotherapy for Hodgkin's Lymphoma in
1986, had an accident in 2003 or 2004 while riding a four
wheeler which rendered him unconscious for approximately 15
to 20 minutes, had several major depressive episodes that
resulted in involuntary commitments in 1990 and 2008, and was
taking Thorazine, an anti-psychotic medication, at the time
of his Atkins evaluation.
respect to Blackwell's adaptive behavior, the court found
"no evidence that he was unable to function at his home
during the time before his eighteenth birthday."
Although the court acknowledged evidence that Blackwell had
difficulty living independently after the dissolution of his
marriage, the court declined to find this translated into
deficits in Blackwell's adaptive behavior. Rather, the
court accepted the testimony of Dr. Calloway that
Blackwell's major depressive episodes after the
separation were the cause of Blackwell's inability to
function normally. The court also found that Blackwell
adapted to life well as he was able to achieve his goal of
becoming a commercial truck driver, maintain employment with
consistent increases in his earnings, and raise two children
during his twenty-six-year marriage. Additionally, the court
found significant the fact that Blackwell was never diagnosed
with mental retardation until the Atkins issue was
raised and also noted that Dr. Harrison, who evaluated
Blackwell as to his competency to stand trial, reported no
finding of mental retardation.
thoroughly reviewing the record, we conclude Blackwell has
not shown the trial court committed an error of law or that
its decision is unsupported by the evidence or against its
preponderance. Accordingly, we find the case properly
proceeded as a capital trial.
respect to jury selection, Blackwell contends the trial court
erred in qualifying a juror and denying his Batson
challenge to the State striking two African-American male
Capital Juror Qualification
asserts the trial court erred in qualifying Juror 43. Based
on Juror 43's responses during voir dire,
Blackwell claims the juror was opposed to considering all
categories of mitigating evidence, particularly a
defendant's background, and mistakenly believed the
defense had the burden of proving Blackwell deserved a life
sentence rather than the death penalty.
reviewing an error as to the qualification of a juror, this
Court engages in a three-step analysis. State v.
Green, 301 S.C. 347, 352, 392 S.E.2d 157, 159 (1990).
First, an appellant must show that he exhausted all of his
peremptory challenges. Id. Second, if all peremptory
challenges were used, this Court must determine if the juror
was erroneously qualified. Id. at 352, 392 S.E.2d at
160. Third, if the juror was erroneously qualified, an
appellant must demonstrate this error deprived him of a fair
prospective juror may be excluded for cause when his or her
views on capital punishment would prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath." State v.
Woods, 382 S.C. 153, 159, 676 S.E.2d 128, 131 (2009);
S.C. Code Ann. § 16-3-20(E) (2015) (providing that a
juror may not be excused in a death penalty case unless the
juror's beliefs or attitudes against capital punishment
would render the juror unable to return a verdict according
reviewing the trial court's qualification or
disqualification of prospective jurors, the responses of the
challenged juror must be examined in light of the entire
voir dire." Woods, 382 S.C. at 159,
676 S.E.2d at 131. "The determination whether a juror is
qualified to serve in a capital case is within the sole
discretion of the trial judge and is not reversible on appeal
unless wholly unsupported by the evidence." Id.
reviewing the entire voir dire and giving due
deference to the trial court, we find Juror 43's
responses do not demonstrate that she was unable to render a
verdict according to law. During voir dire,
Juror 43 repeatedly acknowledged that the State always had
the burden of proof in a criminal case. In terms of
sentencing, she characterized herself as the type of juror
who would decide between a sentence of death or life
imprisonment after considering the aggravating and mitigating
she did express her concern that "something needs to be
done" about repeat offenders, she recognized the
finality of a sentence of life imprisonment without the
possibility of parole and that it could be an appropriate
punishment. Further, even though she seemed to minimize a
defendant's difficult background as a mitigating factor,
stating "I know everybody's life is hard, " she
later clarified that in determining a sentence "you have
to hear everything and work it out."
although Juror 43's initial responses to defense counsel
appear to indicate her belief that the defense had to prove
why a life sentence was the appropriate penalty, she later
expressed her understanding that "the defendant never
has a burden of proof." Finally, as noted during the
trial court's ruling, at the time Juror 43 gave her
responses she had not been instructed by the court as to the
correct burden of proof.
Juror 43 repeatedly affirmed that she would listen to and
apply the law as instructed by the trial court, we conclude
that certain questionable responses during voir dire
did not disqualify her from service on a capital case or deny
Blackwell a fair trial. Accordingly, we find the trial court
did not abuse its discretion in denying Blackwell's
motion to excuse Juror 43 for cause. See State v.
Stanko, 402 S.C. 252, 276, 741 S.E.2d 708, 720 (2013)
(holding trial judge did not err in qualifying juror in
capital case, despite the juror's responses that she
would always vote for the death penalty when murder and an
aggravating circumstance were proven beyond a reasonable
doubt, where the overall balance of her answers
"demonstrate[d] an ability and willingness to be
impartial and carry out the law as explained to her").
argues the trial court erred in denying his Batson
challenge to the State striking two African-American male
jurors, Juror 45 and Juror 79. Specifically, Blackwell claims
the State failed to present racially neutral reasons for
striking these jurors given the State did not strike
similarly situated Caucasian jurors, who also had criminal
records and expressed "pro-life" sentiments during
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution prohibits the striking of a venire
person on the basis of race or gender." State v.
Shuler, 344 S.C. 604, 615, 545 S.E.2d 805, 810 (2001)
(citing Batson v. Kentucky, 476 U.S. 79 (1986)).
United States Supreme Court has set forth a three-step
inquiry for evaluating whether a party executed a peremptory
challenge in a manner which violated the Equal Protection
Clause." State v. Inman, 409 S.C. 19, 26, 760
S.E.2d 105, 108 (2014). In Giles, this Court
outlined the steps as follows:
First, the opponent of the peremptory challenge must make a
prima facie showing that the challenge was based on race. If
a sufficient showing is made, the trial court will move to
the second step in the process, which requires the proponent
of the challenge to provide a race neutral explanation for
the challenge. If the trial court finds that burden has been
met, the process will proceed to the third step, at which
point the trial court must determine whether the opponent of
the challenge has proved purposeful discrimination. The
ultimate burden always rests with the opponent of the
challenge to prove purposeful discrimination.
State v. Giles, 407 S.C. 14, 18, 754 S.E.2d 261, 263
(2014) (internal citations omitted). "Step two of the
analysis is perhaps the easiest step to meet as it does not
require that the race-neutral explanation be persuasive, or
even plausible." Inman, 409 S.C. at 26, 760
S.E.2d at 108. As explained in Giles:
in order for the explanation provided by the proponent of a
peremptory challenge at the second stage of the
Batson process to be legally sufficient and not deny
the opponent of the challenge, as well as the trial court,
the ability to safeguard the right to equal protection, it
need not be persuasive, or even plausible, but it must be
clear and reasonably specific such that the opponent of the
challenge has a full and fair opportunity to demonstrate
pretext in the reason given and the trial court to fulfill
its duty to assess the plausibility of the reason in light of
the evidence bearing on it.
Giles, 407 S.C. at 21-22, 754 S.E.2d at 265.
contrast, step three of the analysis requires the court to
carefully evaluate whether the [opponent of the peremptory
challenge] has proven racial discrimination by demonstrating
that the proffered race-neutral reasons are mere pretext for
discriminatory intent." Inman, 409 S.C. at 27,
760 S.E.2d at 108. "During step three, [the opponent of
the peremptory challenge] should point to direct evidence of
racial discrimination, such as showing that the [proponent of
the peremptory challenge] struck a juror for a facially
neutral reason but did not strike a similarly-situated juror
of another race." Id. at 27, 760 S.E.2d at
108-09. "In doing so, the party proves that the
'original reason was pretext because it was not applied
in a neutral manner.'" Id. at 27, 760
S.E.2d at 109 (quoting State v. Oglesby, 298 S.C.
279, 281, 379 S.E.2d 891, 892 (1989)).
a Batson violation has occurred must be determined
by examining the totality of the facts and circumstances in
the record." Shuler, 344 S.C. at 615, 545
S.E.2d at 810. "The trial court's findings regarding
purposeful discrimination are accorded great deference and
will be set aside on appeal only if clearly erroneous."
State v. Haigler, 334 S.C. 623, 630, 515 S.E.2d 88,
the jury was selected, Blackwell made a Batson
motion challenging the State's use of peremptory
challenges to remove three African-American males from the
jury. The jurors that were struck were Juror 45, Juror 79,
and Alternate Juror 147.
State explained that it struck: (1) Juror 45 because he
"seemed very pro-life" and had a conviction for
criminal domestic violence; (2) Juror 79 because "we
felt that he'd be a pro-life juror" and had a
criminal record; and (3) Alternate Juror 147 because he gave
the impression that he would be a "pro-life juror"
and he expressed that he was afraid that something would
happen to his family as a result of the death penalty case.
response, Blackwell claimed the State's reasons were
pretextual and then listed five Caucasian jurors he believed
were similarly situated to those struck by the State.
However, on appeal, Blackwell limits his challenge to Juror
45 and Juror 79 in comparison with four Caucasian jurors: (1)
Juror 70, (2) Juror 154, (3) Juror 188, and (4) Juror 266.
noted by the State, the primary reasons for striking Juror 45
and Juror 79 were that these individuals had criminal
records and appeared, based on their voir
dire responses, to be predisposed to voting for a life
sentence. In contrast, of the four jurors identified by
Blackwell, only Juror 70 had a criminal record as he had been
convicted of criminal domestic violence. Juror 154 had no
criminal record as prior charges had been dismissed, Juror
188 had minor pending charges subject to Pre-Trial
Intervention, and Juror 266 had no criminal record. Thus,
strictly based on this comparison, the only juror that
possibly could be deemed similarly situated would have been
Juror 70 was not similarly situated to Juror 45 and Juror 79
given his voir dire responses revealed meaningful
distinctions. See State v. Scott, 406 S.C. 108, 115,
749 S.E.2d 160, 164 (Ct. App. 2013) ("[I]n determining
whether potential jurors are similarly situated, our courts
have focused their inquiry on whether there are meaningful
distinctions between the individuals compared."
his questioning, Juror 45 expressed his disapproval of the
criminal justice system and the death penalty. Notably, the
State voiced concern over Juror 45's qualification even
at that point. Juror 79 also gave the impression that he
would not be comfortable voting for a death sentence, stating
"I was just thinking about it, . . . that's a lot to
have on you . . . dawning on you that you somewhat
participated in someone's death." As the State
claimed, these responses revealed Jurors 45 and 79 were
inclined to vote for a sentence of life imprisonment even
before hearing the evidence of the case.
comparison, Juror 70 gave responses that appeared sentence
neutral. For example, the juror talked about mercy, implying
he could vote for a life sentence, but also indicated he was
open to voting for a death sentence if the circumstances
warranted. Therefore, while Juror 70 had a criminal record
like the two African-American jurors struck by the State, he
was not similarly situated to these jurors. We find Juror
70's responses distinguished him from Jurors 45 and 79,
thus, negating Blackwell's claim that the State's
reasons for striking these jurors were
pretextual.Accordingly, in view of all of these
factors, we find the trial court correctly determined that
Blackwell failed to prove a Batson violation.
Right to Cross-Examine State Witness with Privileged Mental
the guilt and penalty phases, Blackwell sought to impeach his
ex-wife, Angela, with statements she made after the murder
during counselling sessions with a licensed mental health
counselor. Blackwell claimed the statements in the mental
health records revealed that Angela was "biased"
and "motivated to misrepresent" what actually
happened at the time of the murder. The trial court denied
Blackwell's request, finding Angela had not waived her
statutory privilege to release the ...