Opinion
Record No. 3133-05-2.
March 13, 2007.
Appeal from the Circuit Court of Chesterfield County Frederick G. Rockwell, III, Judge, Circuit Court Nos. CR04F00900-03, CR04F01434-01, CR04F01434-04, CR04F01434-05 and CR04F01434-08 through CR04F01434-10, Upon a Petition for Rehearing En Banc.
Gregory R. Sheldon (Ken Lammers, Jr., on brief), for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Fitzpatrick.
Before the Full Court
On February 13, 2007 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on January 30, 2007, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on January 30, 2007 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A jury convicted Robert William Lightfoot (appellant) of entering a bank while armed with the intent to commit larceny, three counts of robbery, and three counts of using a firearm in the commission of a felony. At trial, appellant raised a challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), because of the Commonwealth's use of peremptory strikes to remove two female African-American jurors from the venire. Finding the trial court erred in ruling upon appellant'sBatson motion, we reverse appellant's convictions.
BACKGROUND
The trial court, after asking the members of the venire a series of preliminary questions on voir dire, permitted the Commonwealth and appellant to question the jury panel. The Commonwealth asked if any of the potential jurors: 1) had close relatives or friends who had been charged with crimes in the past; 2) possessed moral or religious beliefs preventing the juror from finding the defendant guilty even if the crime was proven beyond a reasonable doubt; and 3) knew any of the Commonwealth's witnesses. Wanda Mead, one of the two jurors who responded to question 1, was an African-American female. Mead stated that a family member had been charged with a traffic offense, but the relative had been treated fairly and the experience would not affect Mead's ability to sit on the jury. The other juror who responded to question 1 was Thomas Ewing, a Caucasian. Ewing said his daughter had been charged with a felony, but it would not affect his ability to determine appellant's case fairly. None of the jurors responded to question 2. One juror indicated familiarity with a Commonwealth's witness, but the record does not reveal the juror's name or race.
During a more lengthy series of questions posed by appellant, Mead revealed that she had visited someone in a jail or prison, but nothing about the experience caused her to be biased against either party in the case. The record does not demonstrate that any African-American juror responded affirmatively to appellant's other questions on voir dire.
After the parties exercised their peremptory strikes, appellant made aBatson motion, stating that the Commonwealth had used two of its four strikes to remove Mead and another African-American woman from the jury. The Commonwealth responded that appellant had not demonstrated a prima facie case of discrimination. The trial court commented that an African-American male remained on the jury. In further discussion, the prosecutor mentioned Mead's and Ewing's responses to question 1 and that both of them had been struck from the jury. Appellant asked the trial court to require the prosecutor to provide race-neutral reasons for the strikes. Emphasizing that one African-American remained on the jury, the trial court ruled that appellant had not made a prima facie showing of discrimination and denied appellant's Batson motion.
ANALYSIS
In Batson, "the United States Supreme Court held that excluding a potential juror solely on the basis of the juror's race is purposeful discrimination and a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution." Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003).Batson provided three steps "which together guide trial courts' constitutional review of peremptory strikes." Johnson v. California, 545 U.S. 162, 168 (2005).
First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Batson,] 476 U.S. at 93-94 (citing Washington v. Davis, 426 U.S. 229, 239-242 (1976)). Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. 476 U.S. at 94, see also Alexander v. Louisiana, 405 U.S. 625, 632 (1972). Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995) ( per curiam).
Id. (footnote omitted).
On appeal, appellant contends the trial court erred in finding he did not satisfy the first Batson step of establishing a prima facie case of racial discrimination in the Commonwealth's exercise of its peremptory strikes. It is the burden of the opponent of a peremptory strike to produce "a record that supports a prima facie case of purposeful discrimination." Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 (2000). "'In Batson, the Supreme Court did not specify the quantum of proof necessary to establish a prima facie case of purposeful discrimination.'" Linsey v. Commonwealth, 17 Va. App. 47, 49, 435 S.E.2d 153, 154 (1993) (quoting Jackson v. Commonwealth, 8 Va. App. 176, 182, 380 S.E.2d 1, 4, aff'd on reh'g en banc, 9 Va. App. 169, 384 S.E.2d 343 (1989)). But the Supreme Court has rejected a standard requiring a defendant, in making a prima facie case of discrimination, to prove it was more likely than not that discrimination occurred in the exercise of peremptory strikes. See Johnson, 545 U.S. at 173. Nonetheless, "[t]he fact that the prosecution has excluded African-Americans by using peremptory strikes does not itself establish such a prima facie case under Batson." Johnson, 259 Va. at 674, 529 S.E.2d at 780 (no showing of discrimination where prosecutor used all her strikes to remove five of the ten African-Americans on the jury panel).
Appellant also contends he established a prima facie case of gender discrimination in the Commonwealth's exercise of peremptory strikes. Appellant did not raise this issue in the trial court. "Pursuant to Rule 5A:18, we 'will not consider an argument on appeal which was not presented to the trial court.'" Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004) (quotingOhree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)), aff'd, 269 Va. 3, 607 S.E.2d 119 (2005). Accordingly, Rule 5A:18 bars our consideration of this question on appeal.
Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke these exceptions. See e.g., Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) ("In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." (emphasis added)). We will not consider, sua sponte, a "miscarriage of justice" argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc).
In this case, the trial court presumed appellant made no prima facie showing of discrimination because one African-American remained on the jury after the parties exercised their peremptory strikes. However,
[n]othing in Batson mandates . . . the "complete exclusion of a racial group in order to prove discrimination." People v. Johnson, 159 Ill. App. 3d 991, 996, 513 N.E.2d 852, 855 (citing People v. Seals, 153 Ill. App. 3d 417, 422-23, 505 N.E.2d 1107, 1111 (1987)), appeal denied, 117 Ill. 2d 549, 517 N.E.2d 1091 (1987), cert. denied, 109 S. Ct. 84 (1988). To the contrary, under Batson, the trial judge is required to consider all relevant circumstances, including, but not limited to (1) a pattern of strikes against persons of the cognizable racial group included in the particular venire, which might give rise to an inference of discrimination, and (2) the Commonwealth's attorney's questions and statements during voir dire examination and in exercising his challenges. 476 U.S. at 96-97. Establishing some magic number or percentage to trigger a Batson inquiry would short circuit the case-by-case determination whether the "facts and any other relevant circumstances raise an inference" of discrimination. Batson, 476 U.S. at 76; [United States v.] Clemons, 843 F.2d [741,] 746 [(3d Cir. 1988)]; see also United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987) ("Batson does not require that the government adhere to a specific mathematical formula in the exercise of its challenges").
Just as the mere exclusion of one or more blacks from the jury does not always give rise to an equal protection violation, Batson, 476 U.S. at 101 (White, J., concurring), so too, the mere inclusion of blacks on a jury does not automatically preclude a finding of a prima facie case, especially where other facts and circumstances give rise to an inference of prosecutorial discrimination.
Jackson, 8 Va. App. at 183, 380 S.E.2d at 4-5 (emphasis added).
We find that the trial court wrongly presumed appellant made no prima facie showing of racial discrimination because one African-American remained on the jury. See id. Therefore, we must determine whether appellant has provided a record to support an inference of racial discrimination in the Commonwealth's exercise of its peremptory strikes.
In making this determination, we focus upon the trial court's analysis of the Batson challenge regarding the African-American juror other than Mead whom the Commonwealth struck. In the trial court, the Commonwealth proceeded to the second step of Batson analysis as it related to Mead, and provided a facially race-neutral reason for striking her. The prosecutor said he struck Mead because she had a family member who had involvement with the criminal justice system. Ewing, a Caucasian who also responded to the prosecutor's question on that subject, likewise was struck from the jury. When the proponent of a peremptory strike "proceeds to step two before the court makes a step one determination, the trial court need not consider whether the opponent established a prima facie showing of discrimination."Riley v. Commonwealth, 21 Va. App. 330, 334, 464 S.E.2d 508, 510 (1995).
At the conclusion of voir dire, the twenty-member venire included only three African-Americans. The Commonwealth used two of its four peremptory strikes to remove African-Americans from the jury panel. One African-American remained on the jury as sworn. "The composition of the jury that ultimately is sworn is a relevant consideration in reviewing a Batson challenge." Johnson, 259 Va. at 674, 529 S.E.2d at 781.
In Linsey, 17 Va. App. at 50, 435 S.E.2d at 154-55, the defendant challenged the prosecutor's use of a peremptory challenge to remove the only African-American from the venire. The African-American juror had remained silent during voir dire. The prosecutor did not strike any of the other five non-African-American jurors who had remained silent during voir dire. This Court found the trial court erred in finding the defendant had not made a prima facie showing of discrimination and in refusing to require the prosecutor to provide a race-neutral reason for the strike. Id. at 51, 435 S.E.2d at 155.
Similarly, the record in this case does not demonstrate that the unnamed African-American juror whom the Commonwealth struck made any affirmative response during voir dire to provide a race-neutral reason for striking her. Considering this factor in conjunction with the Commonwealth's use of strikes to remove two of the three African-Americans from the jury, and the Commonwealth's limited questioning on voir dire to reveal the jurors' potential for bias, we conclude that the trial court erred in finding appellant failed to establish a prima facie case of discrimination. This in turn required the Commonwealth to go forward with presenting to the trial court a race-neutral rationale for the exclusion of this juror. Thus, the trial court erred in failing to proceed with the remaining steps of theBatson analysis.
We recognize that "[a] trial court's determination whether the reason given for exercising a peremptory strike is race-neutral is entitled to great deference," and such a ruling "will not be reversed on appeal unless it is 'clearly erroneous.'" Yarbrough v. Commonwealth, 262 Va. 388, 395, 551 S.E.2d 306, 310 (2001) (quotingHernandez v. New York, 500 U.S. 352, 369 (1991)). However, as the trial court in this case never made such a determination with regard to either of the African-Americans struck by the Commonwealth, the court's decision is not entitled to the same deference on appeal.
"[P]ermitting the improper removal of any one venireman [on the basis of discrimination violating the Equal Protection Clause] constitutes reversible error." Hill v. Berry, 247 Va. 271, 276, 441 S.E.2d 6, 8 (1994). See also Coleman v. Hogan, 254 Va. 64, 69, 486 S.E.2d 548, 550 (1997) (stating that "once a juror has been unconstitutionally stricken, the jury selection process relative to that juror is tainted"). Accordingly, appellant's convictions must be reversed. See Riley v. Commonwealth, 21 Va. App. 330, 336-37, 464 S.E.2d 508, 511 (1995) (convictions reversed where Commonwealth improperly exercised strikes for gender reasons); Linsey, 17 Va. App. at 51, 435 S.E.2d at 155; Broady v. Commonwealth, 16 Va. App. 281, 286, 429 S.E.2d 468, 471 (1993) (conviction reversed because record did not support a finding that peremptory strikes were made for race-neutral reasons).
In Cudjoe v. Commonwealth, 23 Va. App. 193, 202, 475 S.E.2d 821, 825 (1996), we found the record did not support a conclusion that the defendant's attempted exercise of a peremptory strike, which was challenged by the Commonwealth, violated the Equal Protection Clause. We further found that the trial court's interference with the defendant's exercise of peremptory strikes denied him his statutory rights under Code § 19.2-262. See id. at 203, 475 S.E.2d at 826. We concluded the trial court's error was not harmless, applying principles relating to non-constitutional harmless error. See id. at 205-06, 475 S.E.2d at 827.
By contrast, in the present case we conclude that the trial court's ruling resulted in an equal protection violation. Therefore, we need not conduct harmless error analysis. See Batson, 476 U.S. at 100 (where the facts establish prima facie purposeful discrimination, the defendant's conviction must be reversed).
CONCLUSION
Because we conclude the trial court erred in finding appellant failed to make a prima facie showing of racial discrimination, we reverse appellant's convictions and remand for a new trial if the Commonwealth is so advised.
Reversed and remanded.
Assuming, arguendo, the Commonwealth's use of a peremptory strike to remove an African-American who remains silent throughout voir dire raises "an inference of discriminatory purpose" under step one of aBatson challenge, I do not believe the record in this case supports such a finding. Therefore, I dissent.
Baston v. Kentucky, 476 U.S. 79, 93-94 (1986).
The majority asserts the record "does not demonstrate that the unnamed African-American juror whom the Commonwealth struck made any affirmative response during voir dire to provide a race-neutral reason for striking her." By the same token, however, the record fails to show whether or not she gave an affirmative response at some point in the proceeding. It is clear she gave no affirmative response during the Commonwealth's voir dire, as the two veniremen that responded affirmatively to the Commonwealth's questions were identified — one being the other African-American woman (Wanda Meade) whom the Commonwealth struck, and the second being a Caucasian male. However, during the voir dire conducted by appellant's counsel, a number of unnamed veniremen responded affirmatively to counsel's questions, some of which clearly provided a race-neutral reason for striking the respondent. Any one of the respondents may have been the unnamed African-American woman whom the Commonwealth struck. Thus, appellant failed in his burden to produce "a record that supports a prima facie case of purposeful discrimination" in the Commonwealth's peremptory strike of this unnamed individual.Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 (2000);see also Commonwealth v. Williams, 262 Va. 661, 669, 553 S.E.2d 760, 764 (2001) ("[On appeal], the circuit court's judgment is presumptively correct and the burden is on the appellant to present a sufficient record to permit a determination whether the circuit court committed an alleged error." (citing Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)); Bullock v. Commonwealth, 48 Va. App. 359, 366, 631 S.E.2d 334, 337 (2006) ("The party alleging reversible error has the burden 'to show by the record' that the alleged error occurred." (quoting Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991)); Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) ("An appellate court must dispose of the case upon the record and cannot base its decision upon appellant's petition or brief, or statements of counsel in open court.").
Appellant relies solely on this part of the record, consisting of the portion of the transcript containing the Commonwealth's voir dire, to support his Batson argument.
For example, one unidentified venireman revealed that he or she went to high school with the appellant.
Evidence in the record of "entirely plausible reasons, independent of race," for exercising a peremptory strike implies that racial bias did not motivate the prosecutor, thus negating a claim of purposeful racial discrimination under step one of a Batson challenge. Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000) (finding defendant did not establish a prima facie case of prosecutorial discrimination in exercise of peremptory challenge); see Tolbert v. Gomez, 190 F.3d 985, 989 (9th Cir. 1999) (same).
In addition, even if one assumes that the trial court erred in ruling that appellant failed to make out a prima facie case of purposeful discrimination, appellant's conviction should not be reversed, but rather the case should be remanded to the trial court for consideration of steps two and three of appellant's Batson challenge. InBatson, itself, the United States Supreme Court remanded the matter and instructed the trial court to decide whether the facts establish prima facie, purposeful discrimination. Then, if "the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed." Batson v. Kentucky, 476 U.S. 79, 93-94 (1986); see Johnson v. California, 545 U.S. 162 (2005) (remanding after finding appellant established a prima facie case under Batson); see also People v. Johnson, 136 P.3d 804 (Cal. 2006) (remanding case to trial court for conducting hearing on second and third steps of Batson); Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006) (same).
For the above stated reasons, I respectfully dissent.