COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
ROGER KYLE DAVIS, S/K/A
ROGER KYLE DAVIS, SR.
MEMORANDUM OPINION * BY
v. Record No. 2970-96-3 JUDGE LARRY G. ELDER
DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
David D. Embrey for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Roger Kyle Davis (appellant) appeals his convictions of two
counts of robbery, four counts of abduction, and six counts of
using a firearm in the commission of a felony. He contends that
the trial court erred when it (1) ruled that the Commonwealth's
peremptory strikes of African-Americans from the jury panel did
not violate the Equal Protection Clause and (2) granted the
Commonwealth's request to instruct the jury regarding flight as
evidence of guilt. For the reasons that follow, we affirm.
I.
EQUAL PROTECTION OBJECTION
TO THE COMMONWEALTH'S PEREMPTORY STRIKES
The Equal Protection Clause prohibits the parties in a
criminal proceeding from using peremptory challenges to strike
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
individual prospective jurors from a jury panel "solely on
account of their race." Batson v. Kentucky, 476 U.S. 79, 89, 96,
106 S. Ct. 1712, 1719, 1723, 90 L.Ed.2d 69 (1986); see also
Georgia v. McCollum, 505 U.S. 42, 55, 112 S. Ct. 2348, 2357, 120
L.Ed.2d 33 (1992). When one party objects to the other party's
peremptory challenges on equal protection grounds, the trial
court employs a three-step process to determine if a "Batson
violation" has occurred. See Purkett v. Elem, 514 U.S. 765, 767,
115 S. Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995); see also Buck
v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 (1994).
First, the opponent of a peremptory challenge must establish a
prima facie case of racial discrimination, i.e., "that [the other
party] has exercised peremptory challenges on the basis of race."
Hernandez v. New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1866,
114 L.Ed.2d 395 (1991) (plurality opinion); see also Purkett, 514
U.S. at 767, 115 S. Ct. at 1770; Buck, 247 Va. at 450-51, 443
S.E.2d at 415.
Second, if a prima facie case is established, "the burden of
production shifts to the proponent of the strike to come forward
with a race-neutral explanation." Purkett, 514 U.S. at 767, 115
S. Ct. at 1770; see also Buck, 247 Va. at 451, 443 S.E.2d at 415.
In order to satisfy step two of the three-step Batson inquiry,
the striking party's explanation need only be race-neutral and
need not be either sensible or "related to the particular case to
be tried." Purkett, 514 U.S. at 767-69, 115 S. Ct. at 1771 (also
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stating that the prosecutor's race-neutral explanation satisfies
step two even if it is unpersuasive, "silly or superstitious" or
"implausible or fantastic").
"At this [second] step of the inquiry, the
issue is the facial validity of the . . .
explanation [of the person who exercised the
strike]. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the
reason offered will be deemed race neutral."
Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (quoting Hernandez,
500 U.S. at 360, 111 S. Ct. at 1866 (plurality opinion); see also
id. at 374, 111 S. Ct. at 1874 (O'Connor, J., concurring in
judgment)).
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,
514 U.S. at 767, 115 S. Ct. at 1770-71; see also Buck, 247 Va. at
451, 443 S.E.2d at 415. The opponent of the strike always bears
the burden of proving that it was the result of purposeful
discrimination, and the intent of the striking party may be
established by circumstantial evidence. See Purkett, 514 U.S. at
768, 115 S. Ct. at 1771; Batson, 476 U.S. at 93, 106 S. Ct. at
1721.
Whether or not a party exercised a peremptory strike of a
juror with a discriminatory intent is a question of fact. See
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Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21; see also
Barksdale v. Commonwealth, 17 Va. App. 456, 460, 438 S.E.2d 761,
763 (1993) (en banc). As such, this factual finding is entitled
to "great deference" and will not be disturbed unless clearly
erroneous. Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21;
Hernandez, 500 U.S. at 364-65, 369, 111 S. Ct. at 1868-69, 1871;
id. at 372, 111 S. Ct. at 1873 (O'Connor, J., concurring in
judgment) (agreeing with the standard of review set forth in the
plurality opinion); see also Buck, 247 Va. at 451, 443 S.E.2d at
415; Barksdale, 17 Va. App. at 460, 438 S.E.2d at 763-64.
We hold that the trial court's ruling that the
Commonwealth's peremptory strikes were not the result of
purposeful racial discrimination was not clearly erroneous.
Because the Commonwealth offered its reasons for its strikes, we
need not consider whether appellant established a prima facie
case of discrimination. See Buck, 247 Va. at 451, 443 S.E.2d at
415; Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305, 308
(1992). In addition, the record supports the trial court's
conclusion that the Commonwealth's explanation for its strikes
was race-neutral. The Commonwealth's attorney stated that she
struck the three African-Americans from the panel because they
had prior experience with the criminal justice system in
Lynchburg that might have fostered a bias against the
Commonwealth. Her explanation did not indicate that race played
any part in her decision to strike these particular jurors. In
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fact all individuals with prior criminal charges or convictions
were stricken, including one white male. Cf. Carter v.
Commonwealth, 16 Va. App. 118, 124, 428 S.E.2d 34, 40 (1993)
(holding that striking a juror because the Commonwealth's
attorney's office had previously prosecuted some of her relatives
was a race-neutral explanation). Finally, the trial court's
conclusion that the Commonwealth's peremptory strikes were not
based on race was supported by credible evidence, namely the
Commonwealth's attorney's explanation for her strikes. After
personally observing the proceedings, the trial court determined
that the Commonwealth's attorney's explanation was credible, and
the record does not indicate that this determination was clearly
erroneous. See Barksdale, 17 Va. App. at 459-60, 438 S.E.2d at
764 (stating that "evaluation of the . . . state of mind [of the
party attempting to offer a race-neutral explanation for a
peremptory strike] based on demeanor and credibility lies
'peculiarly within a trial judge's province.'" (citation
omitted)).
II.
JURY INSTRUCTION REGARDING FLIGHT AS EVIDENCE OF GUILT
Appellant contends that the trial court erred when it
granted the Commonwealth's request to instruct the jury regarding
flight as evidence of guilt. He argues that the wording of the
instruction was confusing and prejudicial and that the record did
not contain sufficient evidence of flight to warrant giving the
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instruction. We disagree.
Initially, we hold that Rule 5A:18 bars us from considering
appellant's argument regarding the wording of the trial court's
instruction on flight. Appellant argues that the instruction was
improper because it did not expressly state that evidence of
flight does not create a presumption of guilt. However, the
record indicates that appellant did not object to the
Commonwealth's instruction on this ground before the trial court,
and we will not consider this argument for the first time on
appeal.
Next we hold that the evidence was sufficient to support the
trial court's decision to instruct the jury on flight as evidence
of guilt. "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)). "'Both the Commonwealth and
the defendant are entitled to appropriate instructions to the
jury of the law applicable to each version of the case, provided
such instructions are based upon the evidence adduced.'" Stewart
v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 514 (1990)
(quoting Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d
734, 735 (1986)). "The evidence to support an instruction 'must
be more than a scintilla.'" Frye v. Commonwealth, 231 Va. 370,
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388, 345 S.E.2d 267, 280 (1986). When determining whether
sufficient evidence warranted a particular instruction, we view
the evidence in the light most favorable to the party offering
the instruction. See Foster v. Commonwealth, 13 Va. App. 380,
383, 412 S.E.2d 198, 200 (1991).
It is well established that "[f]light following the
commission of a crime is evidence of guilt, and the jury may be
so instructed." Clagett v. Commonwealth, 252 Va. 79, 93, 472
S.E.2d 263, 271 (1996) (citing Boykins v. Commonwealth, 210 Va.
309, 313-14, 170 S.E.2d 771, 774 (1969); Carson v. Commonwealth,
188 Va. 398, 408, 49 S.E.2d 704, 708 (1948)), cert. denied,
U.S. , 117 S. Ct. 972, 136 L.Ed.2d 856 (1997).
Flight is not limited to physically leaving a
jurisdiction for an extended period, but
includes the taking of any action, even of
short duration, intended to disguise one's
identity and distance oneself from the crime.
Id. at 93-94, 472 S.E.2d at 271 (citing Edmondson v.
Commonwealth, 248 Va. 388, 390-91, 448 S.E.2d 635, 637 (1994)).
When viewed in the light most favorable to the Commonwealth,
"more than a scintilla" of evidence supported its theory that
appellant took action to disguise his identity and distance
himself from the robbery on the night of the crime. Woods
testified that appellant wore two sets of clothes when he
committed the robbery and that he removed the outer layer of
clothes after leaving the crime scene "to elude the policemen."
In addition, the testimony of Woods and Investigator Adams
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indicated that, when the police arrived at the residence of
appellant's wife later that night, appellant prevented his wife
from answering the door by choking her.
For the foregoing reasons, we affirm the convictions of two
counts of robbery, four counts of abduction, and six counts of
using a firearm in the commission of a felony.
Affirmed.
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Roger Kyle Davis, s/k/a Roger Kyle Davis, Sr. v. CW
Combined Opinion