COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
EMORY ADRIAN GOODSON
v. Record No. 1176-94-2 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MARCH 12, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Margaret Ann Englisby (Denis C. Englisby;
Englisby & Englisby, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Emory Adrian Goodson (appellant) was convicted in a jury
trial of being an accessory after the fact to attempted murder of
James Kennedy (Kennedy). Additionally, he was convicted of
attempted robbery of Kennedy, attempted murder of Irvin Condrey
(Condrey), use of a firearm in the commission of attempted murder
of Condrey, robbery of Condrey, and use of a firearm in the
commission of robbery of Condrey. On appeal, he argues that the
trial court erred in: (1) joining his jury trial with his
accomplice's bench trial; (2) granting attempted murder
instructions submitted by the Commonwealth that did not include
intent to kill as a required element; (3) granting instructions
defining malice and allowing the jury to infer malice from the
use of a deadly weapon; (4) refusing an instruction for the
lesser included offense of being an accessory after the fact to
the second attempted murder and the robbery; (5) refusing to
strike for cause two prospective jurors; and (6) allowing the
Commonwealth to strike the only two African-American jurors on
the jury panel. We hold that the trial court erred on the
attempted murder charges in failing to include the requirement of
a specific intent to kill in the jury instructions. Thus, we
reverse and remand his convictions for being an accessory after
the fact to attempted murder of Kennedy, attempted murder of
Condrey, and use of a firearm in the commission of attempted
murder of Condrey. Because the trial court did not err in its
joinder of co-defendants for trial or in its rulings to seat the
jury, we affirm appellant's convictions for attempted robbery of
Kennedy, robbery of Condrey, and use of a firearm in the
commission of robbery of Condrey.
BACKGROUND
On December 22, 1993, appellant met Corey Johnson (Johnson)
and Johnson's cousin, Mark Hatcher, and drove Johnson to a job
interview. After the interview, Johnson asked if appellant would
drive him to pick up a friend, Herbert Ross (Ross). Once Ross
joined the others, Johnson told appellant to drive to the Crestar
Bank at the Pocono Crossing shopping center. On the way to the
bank, appellant overheard Johnson and Ross talking about "taking
somebody['s] money after they were getting it out of the bank."
At 8:15 p.m., appellant, at Ross's direction, pulled behind James
Kennedy's (Kennedy) car, which was parked at the Crestar drive-
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through automatic teller machine (ATM). Johnson and Ross got out
of the car, planning to rob Kennedy. Kennedy heard the word
"robbery," saw a black male outside of a vehicle pointing a
pistol at him, and fled in his car. Ross fired two shots at
Kennedy's car, striking the car once. Johnson and Ross returned
to appellant's car, and appellant drove the men away from the
bank.
Less than two hours later, at 10:00 p.m., appellant pulled
into the parking lot of the NationsBank on Midlothian Turnpike.
In the car, Johnson and Ross planned another robbery and told
appellant he would get a cut. Irvin Condrey (Condrey) drove up
to the ATM and withdrew $150. Johnson and Ross approached him,
and Johnson pointed a pistol at Condrey and demanded the money.
Condrey gave Johnson the cash and drove about thirty to forty
yards away. Johnson and Ross got back into appellant's car.
Condrey waited until appellant drove out of the parking lot and
followed appellant's car down Midlothian Turnpike, flashing his
lights and blowing his horn to attract attention. Johnson fired
at Condrey's truck "a good twenty times," and hit the truck at
least four times, including once in the windshield on the
driver's side. During his pursuit, Condrey wrote the license
plate number of appellant's car on his hand. Appellant was
arrested on December 24, 1993.
MOTION TO SEVER
Prior to trial, appellant moved to sever his jury trial from
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that of his co-defendant Johnson, who had requested a bench
trial. Appellant argued that combining a jury trial and bench
trial would be confusing and inherently prejudicial. The
Commonwealth argued that judicial economy required a joint trial
and that the evidence against both defendants was substantially
the same and involved approximately fourteen witnesses. In a
letter opinion dated April 15, 1994, the trial judge denied
appellant's severance motion, finding that "the Commonwealth's
Attorney has shown good cause [and] no basis whereby any
defendant would be prejudiced." The court joined appellant's
jury trial with Johnson's bench trial.
Code § 19.2-262.1 provides as follows:
On motion of the Commonwealth, for good cause
shown, the court, in its discretion, may
order persons charged with participating in
contemporaneous and related acts or
occurrences or in a series of acts or
occurrences constituting an offense or
offenses to be tried jointly unless such
joint trial would constitute prejudice to a
defendant.
1
(Emphasis added). Code § 19.2-262.1 is similar to Rule 3A:10(b)
governing joinder of offenses, which provides as follows:
The court may direct that an accused be
tried at one time for all offenses then
pending against him, if justice does not
require separate trials and (i) the offenses
meet the requirements of Rule 3A:6(b) or (ii)
the accused and the Commonwealth's attorney
consent thereto.
1
Rule 3A:10 was amended January 1, 1994, and former
subsection (b) was redesignated as subsection (c).
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Under Rule 3A:10(b), "[a] trial court has limited discretion to
order that an accused be tried concurrently for multiple
offenses." Johnson v. Commonwealth, 20 Va. App. 49, 55, 455
S.E.2d 261, 265 (1995). Similarly, Code § 19.2-262.1 limits the
discretion of the trial court as to joinder of defendants and
requires a court to provide separate trials for individual
defendants unless good cause exists for joinder and no prejudice
would result from a joint trial. In determining whether a joint
trial would prejudice a defendant, the trial court should require
"[t]he party moving for severance [to] establish that actual
prejudice would result from a joint trial." United States v.
Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert.
denied, 115 S. Ct. 2597 (1995). 2
Although the trial procedures used in a bench trial may vary
from those required in a jury trial, there is nothing inherently
prejudicial in joining them for trial. No inherent prejudice
arises simply because a defense counsel is allowed to cross-
2
Federal Criminal Procedure Rule 14 provides as follows:
"'If it appears that a defendant or the government is prejudiced
by a joinder of . . . defendants . . . for trial together, the
court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice
requires.'" Zafiro v. United States, 506 U.S. 534, 538 (1993)
(quoting Fed. R. Crim. P. 14). Under Rule 14, "'[t]he grant or
denial of a motion for severance . . . is within the trial
court's discretion and will not be overturned absent a clear
abuse of that discretion.'" Reavis, 48 F.3d at 767. Although
Rule 14 contains the presumption that defendants will be tried
together unless prejudice is shown, cases interpreting prejudice
under Rule 14 are instructive in determining what constitutes
"prejudice" under Code § 19.2-262.1.
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examine the co-defendent's witnesses, thereby creating the
impression that the co-defendents may be hostile to each other's
position. Although the jury may hear evidence that is material
or germane only to the co-defendent's charges, appellant has
shown no prejudice in this case. Thus, the trial court did not
abuse its discretion in joining appellant and Johnson for trial.
At the time of the motion for severance, appellant made no
specific allegation of actual prejudice, but argued only that
combining his jury trial with Johnson's bench trial would be
"inherently prejudicial." Appellant's later arguments that the
joint trial was confusing and prejudicial did not meet the
threshold of establishing actual prejudice. Ample evidence
supports the trial court's finding that good cause existed for
the joint trial and that no actual prejudice resulted.
JURY INSTRUCTIONS--ATTEMPTED FELONY MURDER
Appellant next contends that the trial court erred on the
attempted murder charges by failing to include the requisite
intent to kill in its instructions to the jury and by extending
the felony murder analysis to attempted murder charges where
there was no homicide. No Virginia case has addressed the
question of whether attempted felony murder is a crime. We join
the majority of states and hold that, in order for a felony
murder analysis to be applicable, a homicide must occur. Thus,
we hold that there can be no conviction for attempted murder
without proof of a specific intent to kill.
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At trial, the Commonwealth combined the theories of concert
of action used in the robbery and attempted robbery charges and
the felony murder doctrine in formulating its instructions on
attempted first degree murder. The Commonwealth's Instructions 7
and 16 set forth the elements of attempted first degree murder as
follows:
1. That the defendant or someone acting
in concert with him attempted to kill
[victim];
2. That the attempted killing was
malicious; and
3. That the attempted killing occurred
during the commission of attempted
robbery/robbery.
No requirement of a specific intent to kill was included in the
attempted murder instructions. Additionally, the Commonwealth
submitted Instruction 5, defining the overt act required for an
attempt crime. However, although the attempted robbery
instruction (Instruction 4) required proof of an overt act toward
the commission of robbery, the attempted murder instructions did
not require proof of an overt act toward the commission of
murder.
Appellant first argues that the Commonwealth's instructions
removed "one of the basic elements of an attempt" to murder, that
is, proof of the specific intent to kill or commit murder. The
trial judge stated as follows:
If you're involved in a felony and a murder
occurs, then you're presumed to intend that
to be the natural and probable consequence of
your act being involved in the robbery, and
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that's the whole purpose of the felony murder
doctrine. The intent is presumed. You're
arguing that they must show the intent, and I
don't know that that's the law, under the
felony murder doctrine, and that's the theory
of their case.
This ruling effectively relieved the Commonwealth of its burden
to prove both the specific intent to kill and an overt act toward
the commission of attempted murder.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "It is elementary that a jury
must be informed as to the essential elements of the offense; a
correct statement of the law is one of the 'essentials of a fair
trial.'" Eubanks v. Commonwealth, 18 Va. App. 537, 541, 445
S.E.2d 706, 708 (1994) (quoting Campbell v. Commonwealth, 14 Va.
App. 988, 995, 421 S.E.2d 652, 656 (1992), aff'd in part, 246 Va.
174, 431 S.E.2d 648 (1993)).
Code § 18.2-32 defines first degree murder as follows:
Murder, other than capital murder, by
poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and
premeditated killing, or in the commission
of, or attempt to commit, arson, rape,
forcible sodomy, inanimate object sexual
penetration, robbery, burglary or abduction,
except as provided in § 18.2-31, is murder of
the first degree, punishable as a Class 2
felony.
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(Emphasis added). Under Code § 18.2-32, a killing with malice
during the commission of or attempt to commit robbery is
punishable as a form of first degree murder known as felony
murder. Spain v. Commonwealth, 7 Va. App. 385, 394, 373 S.E.2d
728, 733 (1988). "'Where a person maliciously engages in
criminal activity, such as robbery, and homicide of the victim
results, the malice inherent in the robbery provides the malice
prerequisite to a finding that the homicide was murder.'" Id.
(emphasis added) (quoting Wooden v. Commonwealth, 222 Va. 758,
762, 284 S.E.2d 811, 814 (1981)). "'Neither premeditation nor an
intent to kill is an element of felony murder'; only malice is
required." Jones v. Commonwealth, 15 Va. App. 384, 388, 424
S.E.2d 563, 565 (1992) (quoting Wooden, 222 Va. at 762, 284
S.E.2d at 814). "'The [felony-murder] doctrine was developed to
elevate to murder a homicide committed during the course of a
felony by imputing malice to the killing.'" Berkeley v.
Commonwealth, 19 Va. App. 279, 285, 451 S.E.2d 41, 44 (1994)
(emphasis added) (quoting Spain, 7 Va. App. at 393, 373 S.E.2d at
732).
If a death had occurred in this case, a felony murder
analysis would clearly have been appropriate. However, when
there is no completed homicide, but only an attempted homicide,
the question is whether the intent to commit a felony provides
the requisite element of intent to kill for attempted murder.
The law is well-established in Virginia that "'[a]n attempt
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to commit a crime is composed of two elements: (1) The intent to
commit it; and (2) a direct, ineffectual act done towards its
commission.'" Haywood v. Commonwealth, 20 Va. App. 562, 565,
458 S.E.2d 606, 607-08 (1995) (quoting Merritt v. Commonwealth,
164 Va. 653, 657, 180 S.E. 395, 397 (1935)). "A person cannot be
guilty of an attempt to commit murder unless he has a specific
intent to kill." Haywood, 20 Va. App. at 565, 458 S.E.2d at 607.
As to the required intent for attempted murder, the Supreme
Court of Virginia has held: "'To commit murder one need not
intend to take life; but to be guilty of an attempt to murder, he
must so intend. It is not sufficient that his act, had it been
fatal, would have been murder.'" Hancock v. Commonwealth, 12 Va.
App. 774, 782, 407 S.E.2d 301, 306 (1991) (quoting Merritt, 164
Va. at 661, 180 S.E. at 399). See also Thacker v. Commonwealth,
134 Va. 767, 771-72, 114 S.E. 504, 506 (1922) (requiring specific
intent to kill for attempted murder). However, no Virginia court
has decided whether attempted felony murder is a crime and, if
so, whether the specific intent to kill may be imputed from the
intent to commit the underlying felony.
The majority of jurisdictions that have addressed this issue
hold that there can be no crime of attempted felony murder
because the underlying criminal intent to commit the enumerated
felony is insufficient to prove the specific intent required for
attempted murder. See, e.g., State v. Gray, 654 So. 2d 552,
552-53 (Fla. 1995); People v. Trinkle, 369 N.E.2d 888, 891-92
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(Ill. 1977); State v. Robinson, 883 P.2d 764, 767 (Kan. 1994);
Bruce v. State, 566 A.2d 103, 105-06 (Md. 1989); State v. Darby,
491 A.2d 733, 736 (N.J. Super. Ct. App. Div. 1984), certification
denied, 501 A.2d 905 (N.J. 1985); State v. Price, 726 P.2d 857,
858-60 (N.M. Ct. App.), cert. quashed, 726 P.2d 856 (N.M. 1986);
People v. Hassin, 368 N.Y.S.2d 253, 254 (N.Y. App. Div. 1975);
State v. Bell, 785 P.2d 390, 392-94 (Utah 1989). Additionally,
many states limit the application of the felony murder doctrine
to cases involving the commission of an actual homicide. See,
e.g., People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975); Head v.
State, 443 N.E.2d 44, 50-51 (Ind. 1982); Robinson, 883 P.2d at
767. These states explain that "the fact that bodily injury has
occurred in the commission or attempted commission of one of the
. . . statutorily-enumerated felonies [does not] warrant[] the
presumption that, as a matter of law, the perpetrator possessed
the mens rea requisite to murder." Head, 443 N.E.2d at 50. We
too decline to extend the felony murder doctrine to create a
category of attempted felony murder.
In holding that attempted felony murder is a logical
impossibility without proof of a specific intent to kill, other
courts have noted that "[o]ne cannot attempt to commit an act
which one does not intend to commit." Hassin, 368 N.Y.S.2d at
254 (citation omitted). As the Supreme Court of Illinois stated
in Trinkle, "[f]elony murder, unlike attempted murder, does not
require an intent to kill." 369 N.E.2d at 891.
[T]he crime of attempted felony murder is
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logically impossible. . . . [F]elony murder
is based on a legal fiction that implies
malice aforethought from the actor's intent
to commit the underlying felony. This means
that when a person is killed during the
commission of certain felonies, the felon is
said to have the intent to commit the death--
even if the killing was unintended.
Gray, 654 So. 2d at 553 (citations omitted). Similarly, those
courts requiring an actual death before applying a felony murder
analysis have recognized that:
[T]he purpose of the felony-murder doctrine
is to deter those engaged in felonies from
killing negligently or accidentally . . . .
[A] homicide must occur for the felony-murder
rule to apply. . . . [T]he doctrine [should
not be extended] beyond its legislative
rationale of deterring foreseeable deaths
that occur during an inherently dangerous
felony.
Robinson, 883 P.2d at 767 (emphasis added).
We agree with the rationale of Robinson. Accordingly, we
hold that the jury instructions on attempted first degree murder
in the present case were deficient because they lacked the
requirement of a specific intent to kill in order to prove
attempted murder. To allow use of the felony murder doctrine to
impute specific intent from the intent to commit the underlying
felony would eliminate the Commonwealth's burden to prove a
specific intent to kill as an element of attempted murder. See
Viser, 343 N.E.2d at 911 ("Such an instruction, applied to other
forcible felonies, would mean that every person who commits
burglary, or robbery, or rape, is guilty of attempt murder.").
Thus, in an attempted first degree murder case under Code
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§ 18.2-32, the Commonwealth is required to prove the specific
intent to kill by one of the enumerated means of "poison, lying
in wait, imprisonment, [or] starving," or by a "willful,
premeditated, and deliberate" act. See Smith v. Commonwealth,
220 Va. 696, 700, 261 S.E.2d 550, 553 (1980) (holding that
premeditation means adopting a specific intent to kill,
distinguishing first from second degree murder).
Additionally, the jury instructions on the attempted murder
charges, unlike Instruction 4 on the attempted robbery charge,
did not require proof of an overt act toward the consummation of
the crime. In Virginia, a charge of attempted murder requires
the Commonwealth to prove that the accused or someone acting in
concert with the accused committed an "overt but ineffectual act
. . . in furtherance of the criminal purpose." Martin v.
Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992)
(en banc). Thus, the attempted murder instructions granted by
the trial judge were deficient because they did not contain the
essential elements of the offense. Upon retrial, the trial
court's instructions to the jury on the attempted murder charges,
if the evidence warrants giving such instructions, must contain
specific intent to kill as an element and the overt act required
for an attempt to murder.
JURY INSTRUCTIONS--MALICE
Appellant also argues that the trial court erred in
instructing the jury on the definition of malice and in allowing
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the jury to infer malice as to the attempted murder charges from
the use of a deadly weapon by a participant in the robbery or
attempted robbery.
In a first degree murder case, "[m]alice is subsumed in
proof of willfulness, deliberateness, and premeditation in the
commission of a criminal offense." Mackall v. Commonwealth, 236
Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert. denied, 492 U.S.
925 (1989). Proof of a specific intent to kill is a necessary
element of every attempted first degree murder. Therefore, proof
of intent to kill establishes malice, and no separate proof of
malice is necessary. However, "[t]he use of a deadly weapon,
standing alone, is not sufficient to prove the specific intent
required to establish attempted murder." Hargrave v.
Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974)
(emphasis added). Thus, under these facts, should the
Commonwealth proceed with the attempted murder prosecutions,
instructions on malice are unnecessary upon retrial.
JURY INSTRUCTIONS--LESSER INCLUDED OFFENSE
Appellant next argues that the trial judge erred in refusing
an accessory after the fact instruction regarding the second
robbery and attempted murder of Condrey.
"[T]he trial court should instruct the jury only on those
theories of the case which find support in the evidence." Morse
v. Commonwealth, 17 Va. App. 627, 632-33, 440 S.E.2d 145, 149
(1994). "'If any credible evidence in the record supports a
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proffered instruction on a lesser included offense, failure to
give the instruction is reversible error.' 'Such an instruction,
however, must be supported by more than a mere scintilla of
evidence.'" Brandau v. Commonwealth, 16 Va. App. 408, 411, 430
S.E.2d 563, 564 (1993) (citations omitted). "[T]he weight of the
credible evidence that will amount to more than a mere scintilla
of evidence is a matter to be resolved on a case-by-case basis."
Id. at 412, 430 S.E.2d at 565.
The trial court did not err in refusing to instruct the jury
on the lesser included offense of being an accessory after the
fact to the crimes committed against Condrey. The evidence
established that the incident involving Condrey was the second
attack on an ATM customer within a two-hour period. Appellant
participated in the first incident by driving Johnson and Ross to
the ATM, saw Johnson and Ross attempt to rob Kennedy, knew that
Ross had a gun, and saw Ross shoot at Kennedy. He also knew that
Johnson and Ross were planning a second robbery, was told that he
would get some of the stolen money, and drove the car to the
second ATM and during the shoot-out and chase with Condrey.
Thus, no evidence supported an accessory after the fact
instruction on the robbery and second attempted murder charge.
JUROR STRIKES--CAUSE
During voir dire, appellant moved to strike Karen Minor
(Minor) and Patricia Kelley (Kelley). When the trial judge asked
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if any prospective jurors had acquired information about the
case, Minor stated that she worked in the same building as
Kennedy and that there had been "a lot of discussion about the
case at work." Minor never discussed the case with Kennedy and
worked in a different department on a different floor. Minor
agreed that the discussion at the office would not prevent her
from rendering a fair trial to appellant. Minor also agreed that
she would not feel uncomfortable rendering a decision favorable
to appellant, and that she had not formed an opinion as to
appellant's guilt or innocence.
Kelley was an employee of Crestar Bank at its downtown
headquarters. She had not heard anything about the case and was
not aware that one of the ATM machines involved in the case was
at a Crestar branch. Like Minor, she indicated that she would be
able to give appellant a fair trial.
"'The partiality or impartiality of an individual juror is a
factual issue best determined by the trial court.'" Swanson v.
Commonwealth, 18 Va. App. 182, 186, 442 S.E.2d 702, 704 (1994)
(quoting Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d
422, 431 (1985), cert. denied, 475 U.S. 1099 (1986)). "'Because
the trial judge has the opportunity . . . to observe and evaluate
the apparent sincerity, conscientiousness, intelligence, and
demeanor of prospective jurors,' the disposition of a challenge
for cause is an exercise of judicial discretion which will not be
disturbed on appeal, absent manifest error." Swanson, 18 Va.
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App. at 186, 442 S.E.2d at 704 (quoting Pope v. Commonwealth, 234
Va. 114, 123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485
U.S. 1015 (1988)).
No manifest error exists in this case. The voir dire of
Minor established that, although she worked in the same building
as one victim, she did not work in the same department and had
not discussed the case with him. She indicated that the
discussion of the case at work would not prevent her from giving
appellant a fair trial. 3 Likewise, Kelley stated that she would
be able to give appellant a fair trial. Although Kelley worked
for Crestar, which owned one of the ATM machines involved in this
case, her office was in the downtown headquarters of Crestar, not
at the branch office where the attack against Kennedy occurred.
Additionally, she indicated that her employment would not bias
her against appellant. Thus, no manifest error can be found in
the trial judge's ruling refusing to strike these two prospective
jurors for cause.
3
This case is distinguishable from Clements v. Commonwealth,
21 Va. App. 386, 464 S.E.2d 534 (1995), in which this Court held
that the trial court erred in refusing to strike for cause a
juror who overheard gossip about the case. Id. at 388-93, 464
S.E.2d at 535-38. However, in Clements, which involved an appeal
of a sodomy conviction, the juror also had a close relative who
was raped and sodomized. Id. at 391, 464 S.E.2d at 536-37.
Additionally, the entire voir dire of the juror established that
the juror would "try" to be fair, that it was possible the gossip
would influence his decision, and that he may have already formed
an opinion about the case. Id. at 388-93, 464 S.E.2d at 535-38.
In this case, Minor stated that she would give appellant a fair
trial and that the discussions at work would not influence her
decision.
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JUROR STRIKES--PEREMPTORY
Lastly, appellant challenged the Commonwealth's peremptory
strikes of two African-American jurors as being violative of the
requirements of Batson v. Kentucky, 476 U.S. 79 (1976). The
Commonwealth's attorney offered the following reasons for
striking the two African-Americans. Katherine Gresham's
(Gresham) occupation as a "housekeeping aid" indicated that she
had limited education, and she appeared to be visibly upset when
the jury was told that the minimum prison sentence for all the
charges would be sixty-five years. The other African-American
juror, Stella Jones (Jones), was the youngest member of the jury
panel and was unemployed. The trial judge found these reasons to
be race-neutral and overruled appellant's objection.
In determining whether the Commonwealth's use of peremptory
strikes is racially motivated, "the trial court must consider the
basis of the challenges, the reasons proffered for the strikes,
and any argument presented that such reasons, even if
race-neutral, are pretextual, to determine whether the challenger
has met his burden of proving purposeful discrimination in the
selection of a jury panel." Chandler v. Commonwealth, 249 Va.
270, 277, 455 S.E.2d 219, 223, cert. denied, 116 S. Ct. 233
(1995).
A "trial court's decision on the
ultimate question of discriminatory intent
represents a finding of fact of the sort
accorded great deference on appeal," and this
decision will not be reversed unless clearly
erroneous. This standard of review logically
recognizes the trial court's unique
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opportunity to observe and evaluate "the
prosecutor's state of mind based on demeanor
and credibility" in the context of the case
then before the court.
Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,
715 (1994) (citations omitted). "'Unless a discriminatory intent
is inherent in the prosecutor's explanation, the reason offered
will be deemed race neutral.'" Purkett v. Elem, 115 S. Ct. 1769,
1771 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360
(1991)). Age, education, employment, and demeanor during voir
dire may constitute race-neutral explanations for a peremptory
strike. See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402
S.E.2d 196, 205-06, cert. denied, 502 U.S. 902 (1991).
In the instant case, the trial court specifically found that
the reasons offered by the Commonwealth's attorney were race-
neutral. The prosecutor struck Gresham because of her apparent
limited education and her demeanor, and Jones because of her age
and unemployment. The explanations provided by the prosecutor
satisfied the race-neutral standard. See, e.g., Barksdale v.
Commonwealth, 17 Va. App. 456, 460-61, 438 S.E.2d 761, 764 (1993)
(en banc) (age is appropriate consideration in using peremptory
strike); Winfield v. Commonwealth, 12 Va. App. 446, 452, 404
S.E.2d 398, 401-02 (1991) (limited education apparent from
occupation is proper reason to strike juror), aff'd en banc, 14
Va. App. 1049, 421 S.E.2d 468 (1992). Thus, the trial court's
denial of appellant's Batson challenge was not clearly erroneous.
Accordingly, the judgments of the trial court are affirmed
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in part, reversed in part, and remanded for a new trial, if the
Commonwealth be so advised, on the attempted murder charges and
the use of a firearm in the commission of attempted murder
charge, with the jury to be instructed in accordance with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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