COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
EUGENE LLOYD SPRUILL, JR.
MEMORANDUM OPINION * BY
v. Record No. 2532-96-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
A jury convicted Eugene Lloyd Spruill of robbery and use of
a firearm in the commission of robbery. On this appeal, Spruill
contends that the trial judge erred in overruling his Batson
challenge to two of the Commonwealth's peremptory strikes. We
agree that the evidence proved a Batson violation, and we remand
for a new trial.
I.
During jury selection, defense counsel requested the trial
judge to ask the members of the venire if they had served on
juries in criminal cases. Several jurors raised their hands.
The judge also asked how many had served on civil juries. The
judge then inquired as to how many jurors had "served as jurors
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
before this term, before coming to this term of court." Several
jurors raised their hands. The judge asked how many had served
on criminal trials. Juror Newby, Juror Eastwick, and "some extra
jurors in the back" indicated that they had.
The prosecutor used two of his four peremptory strikes to
remove African-American jurors, including Jurors Newby and
Randall, from the 20 member venire. After Spruill made a Batson
challenge, the trial judge asked the prosecutor to articulate his
reasons for the strikes. The prosecutor responded as follows:
The reason I struck Miss Newby, Your Honor,
was she admitted to this court candidly she'd
served before in a criminal trial and, to be
honest with you, I wanted to get somebody
else who had not been here before. We had
plenty of candidates available. That was the
reason I struck Miss Newby.
[T]he reason I struck Miss Randall, if the
court recollects . . . , she had on dark
sunglasses. I couldn't see her, and that was
the reason that I struck her. I was unable
to get a read on her expression to see if she
was paying attention or anything else, for
that matter, Your Honor; and those were the
reasons I'd proffer to the Court for my
strikes.
The judge then asked the prosecutor "Did you strike either
one of them because of their race?" The prosecutor responded
"No." The prosecutor then explained the reasons for his striking
two other people who were not African-American. Defense counsel
asserted that wearing sunglasses was not sufficient cause and
also noted that other members of the jury panel had indicated
they had previously served on criminal juries. The trial judge
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ruled:
At this point I don't think there's been
adequate basis for the Court finding that the
Commonwealth has made any race-based
decisions in their peremptory strikes. . . .
And, therefore, if you're making a Batson
motion, I'm going to overrule that.
II.
Racially motivated peremptory strikes are unconstitutional
and impermissible. Batson v. Kentucky, 476 U.S. 79 (1986). In
Buck v. Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994), the
Supreme Court of Virginia set out the procedure for determining
whether the prosecutor exercised peremptory strikes to remove
prospective jurors solely on the basis of 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.
Id. at 450-51, 443 S.E.2d at 415 (citations omitted). When the
prosecutor "offer[s] . . . reasons for the strikes, we need not
consider whether [the defendant] established a prima facie
showing of discrimination." Id. at 451, 443 S.E.2d at 415.
Because the prosecutor in this case articulated reasons for the
strikes, we first consider whether the Commonwealth's explanation
for striking Juror Newby was race neutral.
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A trial judge's finding that an explanation is race neutral
is a finding on a matter of law and is fully reviewable by this
Court. See Riley v. Commonwealth, 21 Va. App. 330, 335, 464
S.E.2d 508, 510 (1995). To satisfy Batson requirements, "the
Commonwealth attorney must articulate a neutral explanation
related to the particular case to be tried." Taitano v.
Commonwealth, 4 Va. App. 342, 346, 358 S.E.2d 590, 592 (1987).
"However, after the Commonwealth has asserted a facially
race-neutral reason to strike, but has only struck jurors of one
race and the reason asserted for the strike is equally applicable
to other members of the venire of a different race, the reason
asserted is not a satisfactory race-neutral explanation for the
Commonwealth's strikes." Broady v. Commonwealth, 16 Va. App.
281, 285, 429 S.E.2d 468, 470 (1993). It is not enough for the
Commonwealth, in rebutting Spruill's prima facie case, "to adopt
rote 'neutral explanations' which are only facially legitimate."
Jackson v. Commonwealth, 8 Va. App. 176, 186, 380 S.E.2d 1, 6,
aff'd on reh'g en banc, 9 Va. App. 169, 384 S.E.2d 343 (1989).
After the prosecutor gave the explanation for striking Juror
Newby, defense counsel protested that several other venire
members who also had served on criminal juries were not struck.
The record supports that assertion. However, the trial judge
made no finding to address the objection. When a specific
objection is made to a strike, "[t]he trial judge cannot merely
accept at face value the reason proffered but must independently
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evaluate those reasons as he would any disputed fact." Jackson,
8 Va. App. at 185, 380 S.E.2d at 6. Here, it is clear from the
record that the prosecutor did not offer a facially race-neutral
explanation because none of the other members of the venire with
the same criteria were struck. See Broady, 16 Va. App. at 285,
429 S.E.2d at 471.
In order to overcome the presumption that the strikes were
racially motivated, the prosecutor should have been required to
explain his reasons for striking an African-American juror, but
not striking any of the other jurors who had indicated that they
too had previously served on criminal juries. Because this was
not done and because the trial judge made no finding, we hold
that, under the totality of the circumstances, the Commonwealth's
asserted reasons are insufficient to rebut Spruill's prima facie
showing that the strike was made on the basis of race.
Because the strike of Juror Newby was impermissible, we need
not consider the Commonwealth's reasons for striking the other
African-American. Permitting the improper removal of any one
member of the venire constitutes reversible error. See Hill v.
Berry, 247 Va. 271, 277, 441 S.E.2d 6, 9 (1994); Jackson, 8 Va.
App. at 185, 380 S.E.2d at 5-6.
Accordingly, we reverse the convictions and remand for a new
trial before a properly selected jury.
Reversed and remanded.
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