COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
STEPHEN LOWELL HICKS, S/K/A
STEVEN LOWELL HICKS
MEMORANDUM OPINION * BY
v. Record No. 2357-01-1 JUDGE WILLIAM H. HODGES
OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
William F. Burnside for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief),
for appellee.
A jury convicted Stephen Hicks (appellant) of forgery and
uttering. In this appeal, appellant contends the trial court
erred in denying his Batson challenges to two jurors that the
Commonwealth peremptorily struck. For the reasons that follow,
we affirm the trial court.
BACKGROUND
During jury selection, appellant challenged the
Commonwealth's peremptory strikes of prospective jurors Charles
Myles and Dennis Luster, suggesting they were stricken because
they were African-American. After appellant's motion, the trial
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
court asked the prosecutor if he had race-neutral reasons for
the strikes. The prosecutor advised that he struck juror Myles
based upon Myles' "past history with the police." Specifically
he pointed to Myles' "previous DWI" and a "failure to appear"
charge that was subsequently dismissed. The Commonwealth
contended that Myles' involvement with the police might affect
his ability to give the Commonwealth a fair trial.
As to juror Luster, the Commonwealth's attorney said he was
not "aware that Mr. Luster was black." He added:
He looks Caucasian to me; but, I mean, he is
certainly fairly light skinned, Judge. I
just picked somebody, Judge. I kind of
picked it at random.
The trial court was also unsure of juror Luster's race, so
appellant's attorney asked and the trial court agreed to have
juror Luster return to the courtroom. Juror Luster acknowledged
he was African-American. Finding that the Commonwealth's strike
of juror Luster was race-neutral, the trial court denied
appellant's Batson motion as to juror Luster.
DISCUSSION
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
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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 Riley v. Commonwealth, 21
Va. App. 330, 333, 464 S.E.2d 508, 509 (1995).
Juror Myles
Appellant argued it was unfair for the Commonwealth to have
information about Myles' criminal record and not provide it to
the trial court or share it with appellant. He also felt it was
improper for the Commonwealth to fail to question Myles about it
during voir dire and to raise it for the first time only when
asked by the trial court to provide a race-neutral reason. In
addition, appellant questioned the authenticity of the DUI
conviction and asked that he be provided with a "certified copy"
of the conviction. The trial court found the reason
race-neutral, refused to question Myles as to the accuracy of
the information and denied the Batson motion regarding Myles.
The trial court found the Commonwealth's reason for its
peremptory strike of juror Myles race-neutral. The record
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supports that determination. See Spencer v. Commonwealth, 238
Va. 295, 310, 384 S.E.2d 785, 795 (1989) (upholding peremptory
strike as race—neutral based on venireman having record of
criminal activity).
That the Commonwealth's attorney had "information"
indicating that Myles had a misdemeanor DUI conviction and a
dismissed charge for failure to appear in Norfolk was not
improper. In Salmon v. Commonwealth, 32 Va. App. 586, 594, 529
S.E.2d 815, 819 (2000), we held that a prosecutor is authorized
to obtain criminal history information on prospective jurors.
Appellant's attack on the validity of the records was not
the proper way to challenge the Commonwealth's race-neutral
reason as being pretextual because the prosecutor's reason need
only be race-neutral, not accurate or correct. The better
method to demonstrate pretext would have been for appellant to
request a copy of the criminal record check of the venire panel.
See id. at 592 n.2, 529 S.E.2d at 818 n.2 (although Salmon
failed to raise issue, noting in dicta that a number of
jurisdictions approving prosecution review of potential jurors'
criminal backgrounds have also held that defendant has a due
process right to review the information as well).
Alternatively, appellant failed to request that the panel be
brought out so he could ask if any white jurors had similar
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misdemeanor convictions or charges. 1 Absent any indication that
similarly situated white jurors had misdemeanor charges or
convictions, appellant failed to meet his burden of showing that
the prosecutor's explanation was pretextual. Accordingly, the
trial court did not err in denying the motion as to Myles.
Juror Luster
In his brief, appellant presented the following question
regarding the peremptory strike of juror Luster:
Does the Commonwealth's inadvertence in
striking an African-American (Luster), who
it claims it did not know was an
African-American, prejudice Hicks when
considered with the totality of the
circumstances surrounding impaneling of the
jury, and when the remedy to cure was
inconsequential, i.e., the ready
availability of another jury panel.
Despite the inclusion of the question, appellant did not
provide any legal argument to support his assertion of trial
error. 2 Instead, he included in his brief an oblique reference
to Luster in the following argument related to Myles:
Hicks was denied the opportunity to obtain
this information as to all jurors.
1
Although appellant argues in his brief that he "was denied
the opportunity to obtain this information as to all jurors,"
the record fails to show he ever requested such information.
2
Appellant's failure to argue the strike of juror Luster
precludes us from addressing the question. See Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)
(statements unsupported by argument, authority, or citations to
the record do not merit appellate consideration).
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Without this inquiry, it is impossible
to determine whether the proffered reason
was race neutral. When this factor is
accumulated with the Commonwealth's putative
mistake in striking another
African-American, then, the integrity of the
process was challenged, the probability
existed that due process was denied, and
public confidence in the process
jeopardized.
(Emphasis added.)
Moreover, at oral argument, appellant's attorney
represented that he was not contesting the strike of juror
Luster. Instead, he indicated he relied on Luster's strike as a
"factor" for the Court to consider under the "totality of the
circumstances" to attack the strike of Myles and to attack in
general the "integrity of the [jury selection] process." 3
For the reasons stated, we affirm the trial court.
Affirmed.
3
To the extent that appellant relies on the strike of
Luster to demonstrate a violation of Batson as to Myles, the
record demonstrates that the trial court considered the
peremptory strike of juror Luster, the Commonwealth's avowal
that it was unaware he was African-American and the trial
court's own observation that Luster did not appear to be
African-American when it upheld the peremptory strike of juror
Myles. Therefore, the strike of juror Luster and the
inadvertent failure to perceive his race did not make improper
the otherwise proper peremptory strike of Myles, nor did it
establish pretext on the part of the Commonwealth.
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