THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Michael Jerrod Gill, Petitioner.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

Appeal From York County

John C. Hayes, III, Judge

.Opinion No. 24670

Heard October 1, 1996 - Filed August 11, 1997

AFFIRMED AS MODIFIED

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate

Defense, of Columbia, for petitioner.

Attorney General T. Travis Medlock, Chief Deputy Attorney General

Donald J. Zelenka, Senior Assistant Attorney General Harold M.

Coombs, Jr. and Assistant Attorney General Rakale Buchanan Smith,

all of Columbia; and Solicitor Thomas E. Pope, of York, for

respondent.

PER CURIAM: We granted certiorari to review the Court of Appeals'

decision denying petitioner relief, by a vote of two-to-one, on his Batson1 claim.

State v. Gill, 319 S.C. 283 , 460 S.E.2d 412 (Ct. App. 1995). We find the Court of

Appeals erred in reaching the Batson "mixed motive" issue because it was not

properly preserved for appeal, never having been raised to or ruled upon by the

trial judge. see, e.g., Smith v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995).
___________________________

1Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

p38

STATE v. GILL

Accordingly, we vacate the decision of the Court of Appeals, and affirm petitioner's

conviction.