November 8, 2017
From Laurens County Edward W. Miller, Circuit Court Judge
Charles Grose, Jr., of Grose Law Firm, of Greenwood, for
Attorney General Alan McCrory Wilson and Assistant Deputy
Attorney General David A. Spencer, both of Columbia; and
Solicitor David Matthew Stumbo, of Greenwood, all for
Shands, Jr., appeals his convictions for first-degree
burglary, kidnapping, attempted murder, first-degree assault
and battery, and possession of a weapon during the commission
of a violent crime. On appeal, Shands argues the trial court
erred by (1) improperly applying the
Batson comparative juror analysis; (2) refusing
to quash the indictments; (3) allowing the State to impeach
him with a prior conviction; (4) refusing to charge the jury
on involuntary intoxication; (5) denying his motion to strike
the State's improper comments during closing argument;
(6) instructing the jurors they could infer malice from the
use of a deadly weapon; (7) failing to require the State to
open fully on the law and facts during its initial closing
argument; and (8) denying his motion for directed verdict on
the kidnapping charge. We affirm in part and reverse in part.
AND PROCEDURAL HISTORY
October 2014, a Laurens County grand jury indicted Shands for
attempted murder, kidnapping, burglary, possession of a
weapon during the commission of a violent crime, and two
counts of assault and battery arising out of a domestic
incident on July 20, 2014. On the day of the incident, Sharon
Shands (Sharon) tried to leave the house after Shands began
arguing with her. Shands prevented her from leaving by
pulling her back into the house by her hair; he then stabbed
her multiple times with a barbecue fork. Sharon was able to
escape to the neighbor's house, but Shands followed her
and broke into the neighbor's house. The assault ended
when police arrived.
testified in his defense and admitted he was responsible for
what happened to Sharon. However, he claimed he did not have
any memory of the incident because he drank homemade
moonshine earlier in the day that must have been laced with a
drug. Shands testified he bought the moonshine from someone
at work and did not know who made the moonshine or what was
in it. Shands believed there "was something more strong
and powerful in there . . . other than alcohol" because
it "had some effect on [him] that took [him] slap clean
out of [his] mind." The jury found Shands guilty of
attempted murder, possession of a weapon during the
commission of a violent crime, assault and battery, burglary,
and kidnapping. The trial court sentenced Shands to life
imprisonment without the possibility of parole for
first-degree burglary, kidnapping, and attempted murder; ten
years' imprisonment for first-degree assault and battery;
and five years' imprisonment for possession of a weapon
during the commission of a violent crime. This appeal
criminal cases, this court sits to review errors of law only,
and is bound by the trial court's factual findings unless
those findings are clearly erroneous. State v.
Edwards, 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009).
Thus, on review, this court is limited to determining whether
the trial court abused its discretion. Id.
argues the trial court did not properly apply the third step
of the Batson comparative juror analysis. Shands
asserts he proved the State impermissibly struck two jurors
on the basis of gender by showing there was a similarly
situated female juror on the panel. He contends the trial
court "was confused because the initial motion was based
on [the State] striking men, and . . . Shands then pointed to
. . . a female[, ]" and therefore, the trial court
"operated under the mistaken belief [it] could not
consider a similarly situated female juror." We affirm.
"[t]he 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, 91 (1999).
However, "[w]he[n] the assignment of error is the
failure to follow the Batson hearing procedure, [the
appellate court] must answer a question of law. When a
question of law is presented, [the] standard of review is
plenary." State v. Stewart, 413 S.C. 308, 316,
775 S.E.2d 416, 420 (Ct. App. 2015) (quoting State v.
Cochran, 369 S.C. 308, 312-13, 631 S.E.2d 294, 297 (Ct.
[T]he Equal Protection Clause of the Fourteenth Amendment to
the Constitution of the United States prohibits the striking
of a potential juror based on race or gender. When one party
strikes a member of a cognizable racial group or gender, the
trial court must hold a Batson hearing if the
opposing party requests one.
Id. at 313-14, 775 S.E.2d at 419 (internal citation
omitted). "The 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, 25, 760 S.E.2d 105, 108 (2014).
First, the opponent of the peremptory challenge must make a
prima facie showing that the challenge was based on race [or
gender]. 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 . . . 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
State v. Giles, 407 S.C. 14, 18, 754 S.E.2d 261, 263
(2014) (internal citations omitted). In order to prove
purposeful discrimination, "[t]he opponent of the strike
must show the race or genderneutral explanation was mere
pretext, which generally is established by showing the party
did not strike a similarlysituated member of another race
or gender." Stewart, 413 S.C. at 314, 775
S.E.2d at 419. "The burden of persuading the court that
a Batson violation has occurred remains at all times
on the opponent of the strike." State v. Evins,
373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007). "Whether
a Batson violation has occurred must be determined
by examining the totality of the facts and circumstances in
the record." State v. Shuler, 344 S.C. 604,
615, 545 S.E.2d 805, 810 (2001).
jury selection, the State used four of its five peremptory
strikes on three men and one woman. The impaneled jury was
composed of nine women and three men. Shands objected based
on the State striking male jurors, and the court properly
held a Batson hearing. In response to Shands's
Batson motion, the State indicated it struck two of
the potential jurors because they had convictions for
criminal domestic violence (CDV) and the other potential
juror because he had four convictions for violating the
lottery law. The State's explanation for striking the
three male potential jurors satisfied the second step of the
Batson analysis because "a prior criminal
conviction is a neutral reason to strike" a potential
juror. See State v. Casey, 325 S.C. 447, 453 n.2,
481 S.E.2d 169, 172 n.2 (Ct. App. 1997). To meet the third
step of the Batson analysis, Shands argued the State
sat a similarly situated female juror who had a fraudulent
check conviction, indicating the State's gender neutral
reason for striking the male potential jurors was pretext.
When Shands argued the third step of the Batson
analysis, the trial court believed that Shands previously
based his objection on male jurors being struck but altered
his objection because the State sat a female juror.
Shands's counsel reiterated his assertion that the female
juror was similarly situated to the males who were struck,
which met the third prong of Batson. However, the
trial court denied the objection, finding the strikes were
on the exchange between Shands and the trial court in the
record, we find the trial court misapplied the third step of
the Batson analysis by not properly considering
whether the female juror was similarly situated to the
potential male jurors. Therefore, this issue presents a
question of law for this court because the trial court failed
to follow the proper Batson hearing procedure.
See Stewart, 413 S.C. at 316, 775 S.E.2d at 420
("[When] the assignment of error is the failure to
follow the Batson hearing procedure, [the appellate
court] must answer a question of law. When a question of law
is presented, [the] standard of review is plenary."
(quoting Cochran, 369 S.C. at 312-13, 631 S.E.2d at
we find Shands did not meet his burden to show the
State's strikes were based on purposeful discrimination.
See Evins, 373 S.C. at 415, 645 S.E.2d at 909
("The burden of persuading the court that a
Batson violation has occurred remains at all times
on the opponent of the strike."). The female juror was
not similarly situated to the two potential male jurors who
had convictions for CDV. It is understandable that the State
would want to strike potential jurors who had convictions for
CDV because Shands was being tried for attempting to kill his
wife. Further, the female juror was not similarly situated to
the third potential male juror who had convictions for
violating the lottery law. We agree with the State that
having multiple convictions is different than having only one
conviction that is over a decade old. Considering the
totality of facts in the record, we find Shands did not meet
his burden of showing the State's use of its peremptory
strikes was impermissible. See Shuler, 344 S.C. at
615, 545 S.E.2d at 810 ("Whether a Batson
violation has occurred must be determined by examining the
totality of the facts and circumstances in the
GRAND JURY PROCESS
argues the trial court erred in refusing to quash the
indictments because the Laurens County grand jury process is
unconstitutional. Shands contends the officer who testified
at his grand jury hearing was not listed on his indictments
and had no personal knowledge of his case, in violation of
section 14-7-1550 of the South Carolina Code
(2017). Shands urges this court to correct "a
fundamental inequality within the grand jury process in South
Carolina: defendants indicted under the statewide grand jury
system are afforded different procedures under the law than
defendants who are indicted under the county grand jury
system[, ]" namely that "statewide grand jury
proceedings must be recorded."
affirm the trial court's denial of Shands's motion to
quash because Shands did not present clear evidence that
there was an abuse of the grand jury proceedings in his case.
"When a defendant timely moves to quash an indictment .
. ., the [trial] court must determine whether the
defendant[']s constitutional right to have the criminal
allegations against him weighed by a properly constituted
grand jury has been violated." Evans v. State,
363 S.C. 495, 510, 611 S.E.2d 510, 518 (2005).
"Proceedings before the grand jury are presumed to be
regular unless there is clear evidence to the contrary."
State v. Thompson, 305 S.C. 496, 501, 409 S.E.2d
420, 424 (Ct. App. 1991). "Speculation about
'potential' abuse of grand jury proceedings cannot
substitute for evidence of actual abuse as grounds
for quashing an otherwise lawful indictment."
Id. at 502, 409 S.E.2d at 424.
making his motion to quash the indictments, Shands admitted
he may "need to call some witnesses" if the State
did not stipulate to the grand jury process because the
testimony presented to the grand jury was not recorded. The
State explained the Laurens County grand jury process:
Essentially, Your Honor, since Solicitor Stumbo has come into
office, each individual assistant will, as he is assigned
cases, there is a template for the indictment that is
electronically produced and put in our electronic record
system. We will go in, we will tailor the indictment to the
facts that we have and then those are presented out, each
individual assistant or deputy will then sign the
indictments. But, essentially, yes, the individual agencies
are notified the [g]rand [j]ury is coming, they will send a
representative and one representative from each department
will present all indictments from that individual department.
That has been pretty much standard since I started in 1982.
the State indicated it "could not tell" whether
either of the two officers listed on Shands's indictments
testified in front of the grand jury because it did not have
a record of who testified. We are unable to say there was a
violation in Shands's case from the record presented.
Without any clear evidence, Shands's argument that there
was a grand jury abuse in his case is pure speculation.
Furthermore, we disagree with Shands's argument regarding
the nature of the county grand jury system because of
"the view long held uniformly by courts nationwide that
secrecy of grand jury proceedings is desirable and
necessary." See Evans, 363 S.C. at 505, 611
S.E.2d at 515; see also State v. Moses, 390 S.C.
502, 521, 702 S.E.2d 395, 405 (Ct. App. 2010) (affirming the
trial court's denial of the defendant's motion to
quash the indictments even though direct evidence "is
difficult to provide due to the secretive nature of the grand
jury proceedings"). Therefore, we find the trial court
did not abuse its discretion in refusing to quash