Buck v. Commonwealth

JUSTICE LACY

delivered the opinion of the Court.

George Frederick Buck was found guilty by a jury in the Circuit Court of the County of Chesterfield of possession of cocaine with intent to distribute. The circuit court sentenced him to forty years in prison and imposed a $15,000 fine in accordance with the verdict. Buck challenged his conviction, alleging that he was denied constitutional due process and equal protection of the law because the prosecution used two of its peremptory strikes to remove two of the three African-Americans from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79 (1986). A panel of the Court of Appeals reversed the conviction, concluding that the Commonwealth had exercised the strikes in violation of Batson. Buck v. Commonwealth, 14 Va. App. 10, 14, 415 S.E.2d 229, 232-33 (1992). In a rehearing en banc, the Court of Appeals reversed the panel and held that the strikes had been used in a racially neutral manner. Buck v. Commonwealth, 16 Va. App. 551, 554, 432 S.E.2d 180, 182 (1993). We awarded Buck an appeal.

The United States Supreme Court has outlined the 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 made on the basis of race. Powers v. Ohio, 499 U.S. *451400, 409 (1991). At that point, the burden shifts to the prosecution to produce explanations for striking the juror which are race-neutral. Batson, 476 U.S. at 96-97. Even if race-neutral, the reasons may be challenged by the defendant as pretextual. United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991). 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. Batson, 476 U.S. at 98. On appeal, the trial court’s findings will be reversed only if they are clearly erroneous. Hernandez v. New York, 500 U.S. 352,_, 111 S.Ct. 1859, 1871 (1991); Wright v. Commonwealth, 245 Va. 177, 186, 427 S.E.2d 379, 386 (1993).

The Commonwealth struck two of the three African-Americans from the jury panel: Constance T. Bowen and Richard T. Wright. Buck, an African-American, challenged the peremptory strikes pursuant to Batson and asked the prosecutor to state his reasons for the strikes. The prosecutor replied that Ms. Bowen was relatively young when compared with the rest of the venire and that she did not have children, while most of the other potential jurors did. The Commonwealth stated that, because the case was a drug distribution case, parents of children, particularly parents of older children, “might be more susceptible to the Commonwealth’s point of view.”

With regard to venireman Wright, the Commonwealth explained that Mr. Wright was wearing a college athletic jacket, and, therefore, did not appear to be appropriately dressed for court. Furthermore, the Commonwealth stated that Mr. Wright had a Petersburg address, and that the Petersburg area had a significant drug problem. Based on Wright’s appearance and address, the Commonwealth thought he might be more “tolerant of this type of offense.” After providing the defense counsel an opportunity to comment on the reasons proffered by the prosecution, the trial court concluded that the reasons identified for striking potential jurors Wright and Bowen from the jury panel were “legitimate reasons of trial tactics,” and that race was not a consideration.

Because the Commonwealth offered its reasons for the strikes, we need not consider whether Buck established a prima facie showing of discrimination. Hernandez, 500 U.S. at_, 111 S.Ct. at 1866. Additionally, Buck concedes that the Commonwealth’s explanations for the strikes were race-neutral. Our review, then, is confined to Buck’s assertion that the trial court’s holding was clearly erroneous because the reasons given were pretextual and were not “legitimate reasons based on the available facts.”

*452With regard to Ms. Bowen, Buck argues that although she was only 28 years old and had no children, the jury list shows that another member of the jury, Sonya Burley, was 23 years old and also had no children. This jury member, a Caucasian female, was not struck by the Commonwealth. To strike Ms. Bowen but not Ms. Burley, Buck argues, shows that the reasons given by the prosecution for striking Ms. Bowen were simply an attempt to justify a racially motivated strike.

With regard to Mr. Wright, Buck argues that Wright did not live in Petersburg and, in fact, the jury list shows that he had a Richmond address. Five other individuals on the list also had Richmond addresses but were not struck. This error in address, along with the generalization that all persons with Petersburg mailing addresses might be more tolerant of drug-related offenses, Buck argues, shows the pretextual nature of the Commonwealth’s stated rationale for the peremptory strikes. With regard to Mr. Wright’s attire, Buck points out that the trial occurred on December 22, 1989, and that a jacket was appropriate dress for the beginning of winter. Furthermore, Buck argues that an athletic jacket of a “present or past college student who had succeeded or was succeeding in some form of athletic endeavor .... represents past or present responsibility as opposed to tolerance of illegal activity.” Accordingly, Buck concludes that the reasons proffered by the prosecution for striking Mr. Wright, like those given for striking Ms. Bowen, were pretextual and that, under these circumstances, the findings of the trial judge were clearly erroneous.

At trial, however, Buck did not make the arguments which he makes here. Before the trial court made any determination as to whether the proffered reasons for the strikes were race-neutral, Buck was given the opportunity to explain to the court why he believed the reasons given were pretextual. The only statement made at trial by Buck’s counsel was:

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.

Nothing in this statement informed the trial court that Buck believed that the reasons advanced were pretextual because they were inconsistently applied, nor did Buck’s statement advise the court that the reasons were based on a mistake concerning an address, an improper assumption of toleration for drug-related crimes, or erroneous inferences drawn from the wearing of an athletic jacket. Buck’s failure to raise these arguments before the trial court precludes him from raising *453them for the first time on appeal. Rule 5:25; Church v. Commonwealth, 230 Va. 208, 212-13, 335 S.E.2d 823, 826 (1985); accord United States v. McMillon, 14 F.3d 948, 953 (4th Cir. 1994); United States v. Lane, 866 F.2d 103, 106 (4th Cir. 1989); State v. Scott, 493 N.W.2d 546, 549 (Minn. 1992).

Buck argues, however, that even if these arguments were not raised at trial, facts contained in the jury list directly contradicted the Commonwealth’s stated reasons, making the trial court’s determination clearly erroneous and compelling reversal by this Court. We disagree.

In applying the clearly erroneous standard of review, it is inappropriate to consider the information contained in the jury list under the circumstances of this case. First, although it is uncontested that the trial judge had access to the list, neither party referred to the list or introduced it as an exhibit or evidence at trial.* Under these circumstances, to consider the jury list would effectively alter our review to an “independent” or “de novo” review, a standard of review which has been rejected for cases involving Batson challenges. Hernandez, 500 U.S. at_,111 S.Ct. at 1869-71.

More importantly, Buck’s position requires a trial court to seek out and evaluate information or evidence not utilized by either party. Buck has not cited, and we cannot find, any case that places such a burden upon the trial court in the absence of defense counsel’s identification of a false or pretextual reason for the peremptory strikes. Cf. Broady v. Commonwealth, 16 Va. App. 281,_, 429 S.E.2d 468, 471 (1993) (defense motion that age test not applied consistently prompted trial court to instruct sheriff to determine age of Caucasian jurors). Adoption of Buck’s theory would relieve the defense of the burden placed on him by the Supreme Court in Batson, i.e., proving that the prosecution engaged in purposeful discrimination, and would place that burden on the trial court.

In conclusion, we decline Buck’s invitation to erode the proof burden of the defendant established in Batson. We see no reason why our rule of appellate procedure that precludes a party from raising on appeal an issue which was not raised at the trial level, Rule 5:25, should not be applied in this case.

Accordingly, we will affirm the judgment of the Court of Appeals.

Affirmed.

The jury list was not part of the record on appeal until Buck sought a writ of certiorari to the trial court pursuant to Code § 8.01-675.4 to add the list to the record on appeal. On January 30,1991, the Court of Appeals granted Buck’s motion to correct the record by including the jury list from the December 22, 1989 trial.