Cudjoe v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

HAMBREY MILTON CUDJOE
OPINION BY
v. Record No. 2607-94-2 JUDGE MARVIN F. COLE
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert L. Harris, Sr., Judge
James F. Sumpter for appellant.

Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

In a jury trial, appellant, Hambrey Milton Cudjoe, was

convicted of rape and aggravated sexual battery. He contends

that the trial court erred in disallowing one of his peremptory

challenges during the jury selection process and by requiring

that he strike another juror from the jury panel. 1 We agree and

reverse.

The appellant asserts that under Code § 19.2-262, he is

entitled to four peremptory strikes for any reason at all, so

long as the strikes do not constitute intentional racial or

gender discrimination in violation of the Equal Protection Clause

of the Federal Constitution and the principles of Batson v.

1
In the order granting in part and denying in part the
petition for appeal, this Court refused to consider appellant's
contentions that the trial court erroneously sustained the
prosecutor's objections to comments made by appellant's counsel
during opening statement and final argument.
Kentucky, 476 U.S. 79 (1986). He argues that his strike of

Walter Craigie was based upon background and economic status, was

race and gender neutral, and was nondiscriminatory. Therefore,

he argues that the trial court erred because his statutory right

to strike Craigie was violated. He asserts prejudice in the

denial of this right because Craigie served as foreman of the

jury when he should not have been on the jury at all.

The Commonwealth first contends that the appellant failed to

preserve his Batson claim for appellate review because he did not
object to the trial court's disallowance of the Craigie strike.

Secondly, it contends that the trial court properly disallowed

the Craigie strike because the appellant submitted a pretextual

reason in support of it. Thirdly, the Commonwealth argues that

if the trial court did err, such error was harmless because the

appellant was not prejudiced.
I. Contemporaneous Objection Rule

At the conclusion of the jury selection process, the trial

court invited Batson challenges by asking counsel if they had any
motions. The Commonwealth objected to the appellant's striking

Craigie, a Caucasian, from the panel. Upon the trial court's

request, the appellant explained the rationale of all his

strikes. After hearing from both sides, the trial court

disallowed the Craigie strike.

Rule 5A:18 provides that "[n]o ruling of the trial

court . . . will be considered as a basis for reversal unless the

2
objection [is] stated together with the grounds therefor at the

time of the ruling . . . ." The purpose of Rule 5A:18 "is to

allow correction of an error if possible during the trial,

thereby avoiding the necessity of mistrials and reversals."

Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232

(1986).

We find that the purpose of the rule has been satisfied in

this case and Rule 5A:18 has not been violated. When the trial

court made its ruling, it had the positions of both parties

clearly before it and fully understood the issues involved. No

further objection was necessary to preserve appellant's right to

challenge the court's ruling on appeal.
II. The Batson Challenge

In Swain v. Alabama, 380 U.S. 202 (1965), the United States

Supreme Court reviewed the historical background of the

peremptory challenge and explained the nature and purpose of the

strike:
The essential nature of the peremptory
challenge is that it is one exercised without
a reason stated, without inquiry and without
being subject to the court's control. While
challenges for cause permit rejection of
jurors on a narrowly specified, provable and
legally cognizable basis of partiality, the
peremptory permits rejection for a real or
imagined partiality that is less easily
designated or demonstrable. It is often
exercised upon the "sudden impressions and
unaccountable prejudices we are apt to
conceive upon the bare looks and gestures of
another . . . ."

Id. at 220 (citations omitted).

3
 A defendant has the "right to be tried by a jury whose

members are selected pursuant to nondiscriminatory criteria."

Batson, 476 U.S. at 85-86. In Batson, the Supreme Court held

that the use of peremptory strikes "to challenge potential jurors

solely on account of their race" violates the Equal Protection

Clause of the Federal Constitution. Id. at 89. The Batson

principle has been extended to private litigants in civil cases,

see Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), to a

defendant's peremptory strikes in criminal cases, see Georgia v.
McCollum, 505 U.S. 42 (1992), and to "gender" discrimination.

See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

The Virginia Supreme Court has outlined the following

procedure for determining whether a prosecutor exercised a

peremptory strike to remove a prospective juror solely on account

of the juror's race:
A defendant must first establish a prima
facie showing that the peremptory strike was
made on the basis of race. At that point,
the burden shifts to the prosecution to
produce explanations for striking the juror
which are race-neutral. Even if race-
neutral, the reasons may be challenged by the
defendant as pretextual. Finally, the trial
court must decide whether the defendant has
carried his burden of proving purposeful
discrimination by the prosecutor in selecting
the jury panel. On appeal, the trial court's
findings will be reversed only if they are
clearly erroneous.

Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415

(1994) (citations omitted). See also James v. Commonwealth, 247
Va. 459, 461-62, 442 S.E.2d 396, 398 (1994); Riley v.

4
Commonwealth, 21 Va. App. 330, 333, 464 S.E.2d 508, 509 (1995);

Robertson v. Commonwealth, 18 Va. App. 635, 637-38, 445 S.E.2d

713, 714-15 (1994); Barksdale v. Commonwealth, 17 Va. App. 456,

459-60, 438 S.E.2d 761, 763 (1993) (en banc).

The same procedure is applicable for determining whether a

defendant unlawfully exercised a peremptory strike to remove a

juror on the basis of race. The Commonwealth first must make a

prima facie showing that the strike was made on the basis of

race. The burden then shifts to the defendant to articulate

racially-neutral explanations for striking the juror in question.

If the court determines that the proffered reasons are race-

neutral, the Commonwealth should be afforded an opportunity to

show why the reasons, although race-neutral, are merely

pretextual and racially based. Ultimately, the trial court must

determine whether the Commonwealth has carried its burden of

establishing purposeful discrimination. James, 247 Va. at 462,
442 S.E.2d at 398.

The facts in this case are undisputed. During the jury

selection process, the original panel of twenty was extensively

questioned by the trial judge and counsel for both parties. The

record does not reflect the racial makeup of the panel. The

prosecutor and defense counsel then exercised their statutory
2
peremptory strikes.
2
Code § 19.2-262 provides in pertinent part:

(2)Twelve persons from a panel of
twenty shall constitute a jury in a felony

5
 Upon completion of the peremptory strike process, the trial

judge inquired whether counsel had any motions. Defense counsel

objected to the Commonwealth's striking of three minority jurors,

and the trial court asked the Commonwealth's attorney to explain

the logic of her strikes. She explained that she struck Ms.

Maroney because Maroney knew defense counsel; she struck Ms.

Robinson because "[she] just picked up something in her attitude

that was hostile or impatient," and she got "the feeling

[Robinson] didn't want to be here." Robinson "didn't seem

sincere" and demonstrated "a lack of attentiveness." The

prosecutor struck Ms. Johnson because she did not work with

children. The trial court disallowed the Johnson strike and

required the Commonwealth to strike another juror. These

objections were taken up out of the presence of the jury,

disposed of, and are not at issue in this case except to disclose

the racial composition of the venire.
The court asked the Commonwealth's attorney if she had any

objections to the defendant's strikes. She responded that she

objected to the defendant striking four Caucasians. Defense

counsel corrected her, stating that he struck only three. The

case. . . .

(3)The parties or their counsel,
beginning with the attorney for the
Commonwealth, shall alternately strike off
one name from the panel until the number
remaining shall be reduced to the number
required for a jury.

6
trial court then asked defense counsel to state the basis for his

strikes. He responded that he struck Mr. McCray because he had a

granddaughter who worked as a guard for the City of Richmond; he

struck Mr. Martin because his mother had been sexually abused by

his father; and he struck Ms. Schumacher because she had been

robbed at gun point.

The sole issue in the case involves the defendant's striking

of Walter Craigie, a white juror. The parties agree that the

record does not contain any information that would constitute a

valid reason to remove Craigie from the panel for cause. As his

reason for striking Craigie, defense counsel stated:
I think he may have difficulty relating to
this case based on his name. He was reading
the Wall Street Journal, and has a lot of
activities on Main Street. I don't think he
could relate with a person of Mr. Cudjoe's
standing.

The Commonwealth made no further argument concerning the

appellant's strikes, and did not assert that the peremptory

strike of Craigie was pretextual. The trial judge stated, "I am

going to disallow that. He is entitled to serve [on] the jury."

Craigie was permitted to remain on the jury panel and defense

counsel was required to strike another juror from the jury list.

The trial judge made no findings of fact nor did he rule

explicity that the strike of Craigie was racially motivated and,

thus, a violation of the Equal Protection Clause. The judge did

not state that the strike of Craigie was discriminatory in any

way or that the explanation made by defense counsel was

7
pretextual. The record does not indicate the racial mix of the

jury as finally sworn.

The Commonwealth does not dispute the nondiscriminatory

nature of the appellant's explanation. Rather, the Commonwealth

contends that because the trial court disallowed the strike, the

analysis must turn upon whether the court believed that defense

counsel actually struck juror Craigie for reasons relating to his

business activities, or whether he struck Craigie because the

appellant was black and Craigie was white. Presuming that the

trial court applied the proper standard, the Commonwealth asserts

that the trial judge "simply did not believe defense counsel when

he stated that he struck Craigie because of his financial and

economic background, rather than because he was of a different

race than the defendant." Our review is confined to the

Commonwealth's assertion that the reason for the strike was not

believable and was therefore pretextual.
In the trial court, the Commonwealth did not argue that the

explanation made by defense counsel was unbelievable. The

prosecutor said only that Craigie was white and the appellant was

black. She provided no argument to rebut the statement of

defense counsel that he struck Craigie because of his background

and economic status. Furthermore, the trial court made no

factual findings. It said only that the Craigie strike was

disallowed because Craigie was entitled to sit on the jury. The

court did not address whether the appellant's explanation was

8
nondiscriminatory or pretextual.
"In evaluating the race-neutrality of an
attorney's explanation, a court must
determine whether, assuming the proffered
reasons for the peremptory challenges are
true, the challenges violate the Equal
Protection Clause as a matter of law." If
not, the "decisive question" before the trial
judge in a Batson analysis becomes "whether
counsel's race-neutral explanation for a
peremptory challenge should be believed,"
and, "once that has been settled, there seems
nothing left to review."

Barksdale, 17 Va. App. at 459-60, 438 S.E.2d at 763 (citations

omitted).
In discharging this responsibility, trial
judges enjoy the unique "opportunity" of
personal observation and familiarity with
"the general circumstances of the case." As
a consequence, we must be controlled by the
"accepted standards of review" and "uphold
the trial court's decision if it is supported
by credible evidence."

Id. at 460, 438 S.E.2d at 764 (citations omitted).

The trial judge presided at this trial and personally

observed the entire panel, including the challenged jurors and

the composition of the trial jury. Human characteristics are

generally discernible and apparent to those present in the

courtroom. However, if these factors are not documented in the

record or recited in any findings of fact, we are unable to

review them on appeal.
Ordinarily, uncontradicted evidence
should be accepted as true and cannot be
wholly discredited or disregarded if not
opposed to probabilities, even though the
witness is an interested party.
Uncontradicted evidence is not, however,
necessarily binding on the court or the jury.

9
 It may be disbelieved where it is inherently
improbable, inconsistent with circumstances
in evidence, or somewhat contradictory in
itself, especially when the witness is a
party or is interested. Neither courts nor
juries are required to believe that which
they know from ordinary experience is
incredible.

Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568

(1968).

The uncontradicted evidence in this record demonstrates that

the appellant struck Craigie because of his financial and

economic status. The Commonwealth admits that the appellant's

explanation was race-neutral and nondiscriminatory. The record

contains no evidence and no finding of fact by the trial judge to

the contrary. The burden was upon the prosecutor, who challenged

the strike, to prove intentional or purposeful discrimination.

The Commonwealth had an opportunity to show why the appellant's

facially neutral strike was merely pretextual. However, it

offered no evidence, no argument, and no reason to support the

position it now takes that the explanation was unbelievable. We,

therefore, hold that credible evidence in this record fails to

support the implication inherent in the trial court's decision

that the peremptory strike of Craigie was based upon racial

discrimination; that decision was clearly erroneous.
III. Harmless Error

The Commonwealth contends that if the trial court erred in

disallowing the Craigie strike, such action constitutes harmless

error because the right to peremptory strikes is statutory and

10
not constitutional. The Commonwealth further asserts that

appellant has shown no prejudice and the evidence amply supports

the verdict.

"The right of [peremptory] challenge comes from the common

law with the trial by jury itself, and has always been held

essential to the fairness of trial by jury." Lewis v. United

States, 146 U.S. 370, 376 (1892). Historically, the right could

be exercised "without a reason stated, without inquiry and

without being subject to the court's control." Id. at 378. See

also Swain, 380 U.S. at 220.

Consistent with this practice, a litigant's exercise of

peremptory challenges in Virginia in a criminal jury trial is

governed by Code § 19.2-262(3). This statute provides a party

absolute discretion in striking a specified number of the venire

and contains no mechanism for the trial court to impair or

interfere with a litigant's decisions in the process.

Within the last decade, however, the peremptory nature of

the "peremptory" challenge has changed. Batson and its progeny
hold that litigants no longer have an absolute right to a

"peremptory" strike. Rather, the exercise of peremptory

challenges is subject to judicial scrutiny to the extent such

strikes implicate the Equal Protection Clause. See Batson, 476

U.S. at 89; Edmonson, 500 U.S. at 616; McCollum, 505 U.S. at 59;

J.E.B., 511 U.S. at 128; Buck, 247 Va. at 450-51, 443 S.E.2d at

415; James, 247 Va. at 461-62, 442 S.E.2d at 398; Riley, 21 Va.

11
App. at 333, 464 S.E.2d at 509; Robertson, 18 Va. App. at 637-38,

445 S.E.2d at 714-15; Barksdale, 17 Va. App. at 459-60, 438

S.E.2d at 763.

As indicated above, the record in this case does not support

a conclusion that the appellant's attempt to strike Craigie

violated the Equal Protection Clause. In the absence of such a

finding, the trial court, by disallowing the Craigie strike,

denied the appellant only his statutory right to exercise

peremptory strikes unimpaired by court intervention. Thus, the

court's error was of statutory, not constitutional, dimension.

See Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
The common law remedy for a trial court's impairment of a

litigant's right to exercise a peremptory challenge was per se

reversal. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 767, 777

(1834) (without a finding of prejudice, reversing the defendant's

conviction upon concluding that the trial court had violated his

right to challenge any juror peremptorily). "It is well settled

that the common law continues in force in Virginia except as

altered by statute." Commonwealth v. Holland, 211 Va. 530, 532,
178 S.E.2d 506, 507 (1971). See Code § 1-10.

However, Code § 8.01-678, Virginia's harmless error statute,

expressly provides that "[w]hen it plainly appears from the

record and the evidence given at the trial that the parties have

had a fair trial on the merits and substantial justice has been

reached, no judgment shall be arrested or reversed . . . for any

12
error committed on the trial." (Emphasis added). This statute

"goes to the limit of harmless error" in all cases. Dozier v.

Morrisette, 198 Va. 37, 41, 92 S.E.2d 366, 369 (1956) (discussing

a predecessor to Code § 8.01-678). Applying Code § 8.01-678

where the trial court has committed non-constitutional error, we

have stated:
In Virginia, non-constitutional error is
harmless "[w]hen it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on the
merits and substantial justice has been
reached." Code § 8.01-678 (emphasis added).
"[A] fair trial on the merits and
substantial justice" are not achieved if an
error at trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"it plainly appears from the record and the
evidence given at the trial that" the error
did not affect the verdict. An error does
not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that, had the error not
occurred, the verdict would have been the
same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc).
In adopting Code § 8.01-678 and its predecessors, the

General Assembly abrogated the common law remedy of automatic

reversal for the impairment of a criminal defendant's exercise of

peremptory strikes and replaced it with the harmless error

standard of review. For this reason, we must apply Code

§ 8.01-678 and decide whether it plainly appears from this record

that the trial court's non-constitutional error did not affect

13
the verdict. See Lavinder, 12 Va. App. at 1009, 407 S.E.2d at

913 ("Each case must . . . be analyzed individually to determine

if an error has affected the verdict"). In this case, no

curative instruction could have been given that would have cured

the error. Therefore, the error is presumed to be prejudicial

"unless it plainly appears that it could not have affected the

result." Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d

811, 814 (1980). See also Mu'Min v. Commonwealth, 239 Va. 433,

442 n.4, 389 S.E.2d 886, 892 n.4, cert. granted in part, 498 U.S.
894 (1990), aff'd, 500 U.S. 415 (1991) (discussing non-

constitutional harmless error).

The appellant attempted to remove Craigie from the jury by

peremptory strike, which he had the statutory right to do. In

violation of this right, however, the trial court disallowed the

strike, permitting Craigie to remain on the jury that convicted

the appellant. Craigie, in fact, served as the foreman of the

jury. Craigie's presence on the jury in conflict with

appellant's expressed desire to remove him is indicative of

prejudice. Cf. Fuller v. Commonwealth, 14 Va. App. 277, 416
S.E.2d 44 (1992) (although the prosecutor removed the juror by

peremptory strike, defendant was prejudiced by the seating of

that juror in the venire because defendant was "denied the

possibility of having another impartial person sit").

It is true that the evidence may be sufficient to support

appellant's conviction; the record does not establish any lack of

14
soundness in the jury's verdict. However, "a fair trial and

substantial justice" mean a trial before a lawful and properly

constituted jury. 3 The appellant articulated a sound and

acceptable basis for exercising his peremptory strike of Craigie.

The record does not "plainly" establish that, without Craigie on

the jury, the verdict would have been the same. We cannot say

that another impartial juror inevitably would have voted to

convict appellant. Another juror may have deadlocked the jury.

He or she may even have persuaded other jurors to vote in favor

of an acquittal. In our judgment, the error was substantial and

significant. On this record, we cannot say that appellant had a

fair trial on the merits and that substantial justice was

achieved; likewise, we cannot say that, but for the error, the

verdict would have been the same.
For the foregoing reasons, we reverse the appellant's

convictions and remand to the trial court for a new trial if the

Commonwealth be so advised.

Reversed and remanded.

3
The dissent contends that our holding effectively
reinstates the common law per se rule of reversal. We disagree.
The burden is on the appellee to demonstrate that the error was
harmless. Merely contending that the evidence was sufficient to
support the conviction and that the juror was qualified do not,
in our judgment, ipse dixit, establish that a fair trial
occurred. The cause of justice cannot be achieved in such a
mechanical fashion.

15
Annunziata, J., concurring in part, and dissenting in part.

I concur with the majority opinion that the trial court's

refusal to allow appellant to strike Craigie was erroneous.

However, I find the trial court's error harmless and, therefore,

would affirm the convictions.

As the majority notes, the error in this case is based on a

statutory, not a constitutional mandate. Non-constitutional

error is harmless
[w]hen it plainly appears from the record and
the evidence given at the trial that the
parties have had a fair trial on the merits
and substantial justice has been reached.

Code § 8.01-678; see Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc); Walker v.

Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926). In

accordance with this well-settled principle governing appellate

review in the Commonwealth, "[i]t has been well said that there

is no such thing as a perfect trial. Every man is entitled to a

fair trial and to nothing more . . . ." Oliver v. Commonwealth,

151 Va. 533, 541, 145 S.E. 307, 309 (1928).

In the present case, the trial court made six Batson rulings
in reviewing appellant's exercise of his statutory right to

"strike off one name from the panel until the number remaining

shall be reduced to the number required for a jury." See Code

§ 19.2-262(3). 4 One of the rulings was erroneous. The majority
4
Code § 19.2-262(3) provides,

The parties or their counsel, beginning

16
concludes that, as a result of this error, appellant was deprived

of a fair trial and substantial justice was not reached.

In finding reversible error, the majority opinion

effectively reinstates the common law's per se reversal rule,

which we all agree has been changed by statute. Although the

record discloses no prejudice which resulted from the trial

court's error, the majority concludes that the presence of a

juror "in conflict with appellant's expressed desire to remove

him" was not harmless, noting that "another impartial juror with

a different lifestyle [might not have voted] the same way that

Craigie did." Such an analysis misapplies the Lavinder test,
which rests not on hypothetical circumstances but on what the

record affirmatively establishes.

An impartial jury is essential to a "fair trial." See Scott

v. Commonwealth, 11 Va. App. 516, 519, 399 S.E.2d 648, 650 (1990)

(en banc); Martin v. Commonwealth, 221 Va. 436, 445, 271 S.E.2d

123, 129 (1980) (if court fails to secure impartial jury for

litigant, conviction must be reversed); Lavinder, 12 Va. App. at
1005, 407 S.E.2d at 911 (constitutional error reversible unless

harmless beyond reasonable doubt). Here, the record

affirmatively establishes that appellant was tried by an

impartial jury. It is undisputed that each person on the panel

with the attorney for the Commonwealth, shall
alternately strike off one name from the
panel until the number remaining shall be
reduced to the number required for a jury.

17
of twenty from which the ultimate jury was selected was free from

exception. While appellant lost the right to peremptorily strike

one juror he should have been allowed to exclude, that juror

stood "indifferent in the cause." Breedon v. Commonwealth, 217

Va. 297, 298, 227 S.E.2d 734, 735 (1976). In my opinion, the

record plainly shows that the erroneous, non-constitutional

ruling did not deprive appellant of a fair trial or substantial

justice and, therefore, plainly did not affect the verdict.
Furthermore, the evidence in the case supports appellant's

conviction beyond a reasonable doubt. See Overbee v.

Commonwealth, 227 Va. 238, 245, 315 S.E.2d 242, 245 (1984);

Lavinder, 12 Va. App. at 1007, 407 S.E.2d at 912 (to determine

whether "it plainly appears that the error did not affect the

verdict," court "must review the record and the evidence and

evaluate the effect the error may have had on how the finder of

fact resolved the contested issues"); id. at 1011, 407 S.E.2d at

914 (Keenan, J. concurring) ("appellate court must consider the

error and evaluate its effect, if any, upon how the fact finder

weighed and balanced the evidence or resolved the credibility of

witnesses"). When the sufficiency of the evidence is viewed

together with the provision of an impartial jury which tried the

matter, the conclusion is compelled that the record plainly shows

that the erroneous denial of appellant's strike did not deprive

appellant of a fair trial or substantial justice and, therefore,

did not affect the verdict. Lavinder, 12 Va. App. at 1005, 407

18
S.E.2d at 911.

For the reasons stated, I would affirm the convictions.

19