Buck v. Commonwealth

*552UPON REHEARING EN BANC

Opinion

BAKER, J.

George Frederick Buck (appellant) appealed from a judgment of the Circuit Court of Chesterfield County (trial court) that approved his conviction for possession of cocaine with intent to distribute. A majority of the panel that first considered this appeal reversed the judgment and remanded the case to the trial court for such further action as the Commonwealth was advised. See Buck v. Commonwealth, 14 Va. App. 10, 415 S.E.2d 229 (1992). We granted the Commonwealth a rehearing en banc.

In appellant’s original petition, he presented two issues: (1) whether the trial court erred when it admitted hearsay evidence offered by a police officer; and (2) whether the prosecutor’s explanation for exercising two peremptory strikes of black jurors was racially neutral. For the reasons set forth in the panel’s decision, see Buck, 14 Va. App. at 15, 415 S.E.2d at 233, we hold that appellant is procedurally barred from raising the hearsay issue.

In this appeal, the sufficiency of the evidence to support the conviction is not an issue; therefore, we set forth only the facts relevant to the issue whether the prosecutor’s explanation for exercising two peremptory strikes of black jurors was racially neutral. The entire portion of the transcript relating to the selection of the jurors is as follows:

MS. RAND: Your Honor, may we approach the bench for one minute?
THE COURT: Yes.
NOTE: The following bench conference is held out of the hearing of the jury:
BENCH CONFERENCE:
MS. RAND: I want to challenge the first strike that the Commonwealth took and ask for the Commonwealth to clarify the reason for striking Ms. Bowen.
MR. VON SCHUCH:There were a number of reasons, Judge. The first reason was the relative youth of the juror. Compared to the rest, she’s only 28, and most of the rest of them are in their thirties and forties. The second thing was that she had no children *553according to the sheet.1 Most of the other jurors do have children. I was conscious of that, because this is a case where the parents of children, particularly older children, might be more susceptible to the Commonwealth’s point of view in terms of this being a drug distribution case.
Under those circumstances, I felt that she was appropriate to strike.
I would point out to the Court that there were a total of three blacks on the jury. The Commonwealth struck only two, leaving on the jury Ms. Blizzard.
MS. RAND: I didn’t realize there was a third one.
What was the explanation on the other one?
THE COURT: The second strike?
MR. VON SCHUCH: Mr. Wright?
THE COURT: Yes.
MR. VON SCHUCH: Yes, sir, because he came into the court with the other jurors and appeared not to be dressed for the occasion. He came in wearing a Virginia State Varsity jacket; he has a Petersburg address. Living in that part of the county, Petersburg has a significant drug problem. Based on his appearance and the address location, I thought that he would be tolerant of this type of offense.
THE COURT: Ms. Rand?
MS. RAND: My concern was that the jurors are not representative of the population. There were three blacks on the panel. We now only have one, and I would think more significant reasons than what was given should be shown.
THE COURT: Well, the reasons are reasons for trial tactics, and the Commonwealth represents that race was not a consideration in any of the reasons that he stated and that come across to me.
*554They are legitimate reasons of trial tactics. There is basis for those, and counsel’s decision to strike someone for reasons that may affect their view of the testimony, and because of that I think that I find that the Commonwealth’s strikes were reasonably made and I note your exception to the Court’s ruling.

We find that the jury selection issue in this case is controlled by our en banc decision in Winfield v. Commonwealth, 14 Va. App. 1049, 421 S.E.2d 468 (1992), which affirmed a panel holding in Winfield v. Commonwealth, 12 Va. App. 446, 404 S.E.2d 398 (1991). The trial court’s finding on the issue of discriminatory intent is accorded great deference because the issue largely turns on evaluation of credibility. See Hernandez v. New York, 500 U.S. 352 (1991).

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

Moon, C.J.,* Coleman, X, Willis, Bray, X, and Fitzpatrick, X, concurred.

The original transcript reported that Ms. Bowen “had children” and that most of the other jurors “do not have children.” This was erroneously reported and at a hearing held on October 18, 1990, the record was corrected to read as shown here.

When the case was argued, Judge Koontz presided. Judge Moon was elected Chief Judge effective May 1, 1993.