Goodson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia

EMORY ADRIAN GOODSON

v. Record No. 1176-94-2 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MARCH 12, 1996

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

Margaret Ann Englisby (Denis C. Englisby;
Englisby & Englisby, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Emory Adrian Goodson (appellant) was convicted in a jury

trial of being an accessory after the fact to attempted murder of

James Kennedy (Kennedy). Additionally, he was convicted of

attempted robbery of Kennedy, attempted murder of Irvin Condrey

(Condrey), use of a firearm in the commission of attempted murder

of Condrey, robbery of Condrey, and use of a firearm in the

commission of robbery of Condrey. On appeal, he argues that the

trial court erred in: (1) joining his jury trial with his

accomplice's bench trial; (2) granting attempted murder

instructions submitted by the Commonwealth that did not include

intent to kill as a required element; (3) granting instructions

defining malice and allowing the jury to infer malice from the

use of a deadly weapon; (4) refusing an instruction for the

lesser included offense of being an accessory after the fact to
the second attempted murder and the robbery; (5) refusing to

strike for cause two prospective jurors; and (6) allowing the

Commonwealth to strike the only two African-American jurors on

the jury panel. We hold that the trial court erred on the

attempted murder charges in failing to include the requirement of

a specific intent to kill in the jury instructions. Thus, we

reverse and remand his convictions for being an accessory after

the fact to attempted murder of Kennedy, attempted murder of

Condrey, and use of a firearm in the commission of attempted

murder of Condrey. Because the trial court did not err in its

joinder of co-defendants for trial or in its rulings to seat the

jury, we affirm appellant's convictions for attempted robbery of

Kennedy, robbery of Condrey, and use of a firearm in the

commission of robbery of Condrey.
BACKGROUND

On December 22, 1993, appellant met Corey Johnson (Johnson)

and Johnson's cousin, Mark Hatcher, and drove Johnson to a job

interview. After the interview, Johnson asked if appellant would

drive him to pick up a friend, Herbert Ross (Ross). Once Ross

joined the others, Johnson told appellant to drive to the Crestar

Bank at the Pocono Crossing shopping center. On the way to the

bank, appellant overheard Johnson and Ross talking about "taking

somebody['s] money after they were getting it out of the bank."

At 8:15 p.m., appellant, at Ross's direction, pulled behind James

Kennedy's (Kennedy) car, which was parked at the Crestar drive-

- 2 -
through automatic teller machine (ATM). Johnson and Ross got out

of the car, planning to rob Kennedy. Kennedy heard the word

"robbery," saw a black male outside of a vehicle pointing a

pistol at him, and fled in his car. Ross fired two shots at

Kennedy's car, striking the car once. Johnson and Ross returned

to appellant's car, and appellant drove the men away from the

bank.

Less than two hours later, at 10:00 p.m., appellant pulled

into the parking lot of the NationsBank on Midlothian Turnpike.

In the car, Johnson and Ross planned another robbery and told

appellant he would get a cut. Irvin Condrey (Condrey) drove up

to the ATM and withdrew $150. Johnson and Ross approached him,

and Johnson pointed a pistol at Condrey and demanded the money.

Condrey gave Johnson the cash and drove about thirty to forty

yards away. Johnson and Ross got back into appellant's car.

Condrey waited until appellant drove out of the parking lot and

followed appellant's car down Midlothian Turnpike, flashing his

lights and blowing his horn to attract attention. Johnson fired

at Condrey's truck "a good twenty times," and hit the truck at

least four times, including once in the windshield on the

driver's side. During his pursuit, Condrey wrote the license

plate number of appellant's car on his hand. Appellant was

arrested on December 24, 1993.
MOTION TO SEVER

Prior to trial, appellant moved to sever his jury trial from

- 3 -
that of his co-defendant Johnson, who had requested a bench

trial. Appellant argued that combining a jury trial and bench

trial would be confusing and inherently prejudicial. The

Commonwealth argued that judicial economy required a joint trial

and that the evidence against both defendants was substantially

the same and involved approximately fourteen witnesses. In a

letter opinion dated April 15, 1994, the trial judge denied

appellant's severance motion, finding that "the Commonwealth's

Attorney has shown good cause [and] no basis whereby any

defendant would be prejudiced." The court joined appellant's

jury trial with Johnson's bench trial.
Code § 19.2-262.1 provides as follows:
On motion of the Commonwealth, for good cause
shown, the court, in its discretion, may
order persons charged with participating in
contemporaneous and related acts or
occurrences or in a series of acts or
occurrences constituting an offense or
offenses to be tried jointly unless such
joint trial would constitute prejudice to a
defendant.

1
(Emphasis added). Code § 19.2-262.1 is similar to Rule 3A:10(b)
governing joinder of offenses, which provides as follows:
The court may direct that an accused be
tried at one time for all offenses then
pending against him, if justice does not
require separate trials and (i) the offenses
meet the requirements of Rule 3A:6(b) or (ii)
the accused and the Commonwealth's attorney
consent thereto.

1
Rule 3A:10 was amended January 1, 1994, and former
subsection (b) was redesignated as subsection (c).

- 4 -
Under Rule 3A:10(b), "[a] trial court has limited discretion to

order that an accused be tried concurrently for multiple

offenses." Johnson v. Commonwealth, 20 Va. App. 49, 55, 455

S.E.2d 261, 265 (1995). Similarly, Code § 19.2-262.1 limits the

discretion of the trial court as to joinder of defendants and

requires a court to provide separate trials for individual

defendants unless good cause exists for joinder and no prejudice

would result from a joint trial. In determining whether a joint

trial would prejudice a defendant, the trial court should require

"[t]he party moving for severance [to] establish that actual
prejudice would result from a joint trial." United States v.

Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert.

denied, 115 S. Ct. 2597 (1995). 2

Although the trial procedures used in a bench trial may vary

from those required in a jury trial, there is nothing inherently

prejudicial in joining them for trial. No inherent prejudice

arises simply because a defense counsel is allowed to cross-

2
Federal Criminal Procedure Rule 14 provides as follows:
"'If it appears that a defendant or the government is prejudiced
by a joinder of . . . defendants . . . for trial together, the
court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice
requires.'" Zafiro v. United States, 506 U.S. 534, 538 (1993)
(quoting Fed. R. Crim. P. 14). Under Rule 14, "'[t]he grant or
denial of a motion for severance . . . is within the trial
court's discretion and will not be overturned absent a clear
abuse of that discretion.'" Reavis, 48 F.3d at 767. Although
Rule 14 contains the presumption that defendants will be tried
together unless prejudice is shown, cases interpreting prejudice
under Rule 14 are instructive in determining what constitutes
"prejudice" under Code § 19.2-262.1.

- 5 -
examine the co-defendent's witnesses, thereby creating the

impression that the co-defendents may be hostile to each other's

position. Although the jury may hear evidence that is material

or germane only to the co-defendent's charges, appellant has

shown no prejudice in this case. Thus, the trial court did not

abuse its discretion in joining appellant and Johnson for trial.

At the time of the motion for severance, appellant made no

specific allegation of actual prejudice, but argued only that

combining his jury trial with Johnson's bench trial would be

"inherently prejudicial." Appellant's later arguments that the

joint trial was confusing and prejudicial did not meet the

threshold of establishing actual prejudice. Ample evidence

supports the trial court's finding that good cause existed for

the joint trial and that no actual prejudice resulted.
JURY INSTRUCTIONS--ATTEMPTED FELONY MURDER

Appellant next contends that the trial court erred on the

attempted murder charges by failing to include the requisite

intent to kill in its instructions to the jury and by extending

the felony murder analysis to attempted murder charges where

there was no homicide. No Virginia case has addressed the

question of whether attempted felony murder is a crime. We join

the majority of states and hold that, in order for a felony

murder analysis to be applicable, a homicide must occur. Thus,

we hold that there can be no conviction for attempted murder

without proof of a specific intent to kill.

- 6 -
 At trial, the Commonwealth combined the theories of concert

of action used in the robbery and attempted robbery charges and

the felony murder doctrine in formulating its instructions on

attempted first degree murder. The Commonwealth's Instructions 7

and 16 set forth the elements of attempted first degree murder as

follows:
1. That the defendant or someone acting
in concert with him attempted to kill
[victim];

2. That the attempted killing was
malicious; and
3. That the attempted killing occurred
during the commission of attempted
robbery/robbery.

No requirement of a specific intent to kill was included in the

attempted murder instructions. Additionally, the Commonwealth

submitted Instruction 5, defining the overt act required for an

attempt crime. However, although the attempted robbery

instruction (Instruction 4) required proof of an overt act toward

the commission of robbery, the attempted murder instructions did

not require proof of an overt act toward the commission of

murder.

Appellant first argues that the Commonwealth's instructions

removed "one of the basic elements of an attempt" to murder, that

is, proof of the specific intent to kill or commit murder. The

trial judge stated as follows:
If you're involved in a felony and a murder
occurs, then you're presumed to intend that
to be the natural and probable consequence of
your act being involved in the robbery, and

- 7 -
 that's the whole purpose of the felony murder
doctrine. The intent is presumed. You're
arguing that they must show the intent, and I
don't know that that's the law, under the
felony murder doctrine, and that's the theory
of their case.

This ruling effectively relieved the Commonwealth of its burden

to prove both the specific intent to kill and an overt act toward

the commission of attempted murder.

"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)). "It is elementary that a jury

must be informed as to the essential elements of the offense; a

correct statement of the law is one of the 'essentials of a fair

trial.'" Eubanks v. Commonwealth, 18 Va. App. 537, 541, 445

S.E.2d 706, 708 (1994) (quoting Campbell v. Commonwealth, 14 Va.

App. 988, 995, 421 S.E.2d 652, 656 (1992), aff'd in part, 246 Va.

174, 431 S.E.2d 648 (1993)).

Code § 18.2-32 defines first degree murder as follows:
Murder, other than capital murder, by
poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and
premeditated killing, or in the commission
of, or attempt to commit, arson, rape,
forcible sodomy, inanimate object sexual
penetration, robbery, burglary or abduction,
except as provided in § 18.2-31, is murder of
the first degree, punishable as a Class 2
felony.

- 8 -
(Emphasis added). Under Code § 18.2-32, a killing with malice

during the commission of or attempt to commit robbery is

punishable as a form of first degree murder known as felony

murder. Spain v. Commonwealth, 7 Va. App. 385, 394, 373 S.E.2d

728, 733 (1988). "'Where a person maliciously engages in

criminal activity, such as robbery, and homicide of the victim

results, the malice inherent in the robbery provides the malice

prerequisite to a finding that the homicide was murder.'" Id.

(emphasis added) (quoting Wooden v. Commonwealth, 222 Va. 758,
762, 284 S.E.2d 811, 814 (1981)). "'Neither premeditation nor an

intent to kill is an element of felony murder'; only malice is

required." Jones v. Commonwealth, 15 Va. App. 384, 388, 424

S.E.2d 563, 565 (1992) (quoting Wooden, 222 Va. at 762, 284

S.E.2d at 814). "'The [felony-murder] doctrine was developed to

elevate to murder a homicide committed during the course of a

felony by imputing malice to the killing.'" Berkeley v.

Commonwealth, 19 Va. App. 279, 285, 451 S.E.2d 41, 44 (1994)

(emphasis added) (quoting Spain, 7 Va. App. at 393, 373 S.E.2d at
732).

If a death had occurred in this case, a felony murder

analysis would clearly have been appropriate. However, when

there is no completed homicide, but only an attempted homicide,

the question is whether the intent to commit a felony provides

the requisite element of intent to kill for attempted murder.

The law is well-established in Virginia that "'[a]n attempt

- 9 -
to commit a crime is composed of two elements: (1) The intent to

commit it; and (2) a direct, ineffectual act done towards its

commission.'" Haywood v. Commonwealth, 20 Va. App. 562, 565,

458 S.E.2d 606, 607-08 (1995) (quoting Merritt v. Commonwealth,

164 Va. 653, 657, 180 S.E. 395, 397 (1935)). "A person cannot be

guilty of an attempt to commit murder unless he has a specific

intent to kill." Haywood, 20 Va. App. at 565, 458 S.E.2d at 607.

As to the required intent for attempted murder, the Supreme

Court of Virginia has held: "'To commit murder one need not

intend to take life; but to be guilty of an attempt to murder, he

must so intend. It is not sufficient that his act, had it been

fatal, would have been murder.'" Hancock v. Commonwealth, 12 Va.

App. 774, 782, 407 S.E.2d 301, 306 (1991) (quoting Merritt, 164

Va. at 661, 180 S.E. at 399). See also Thacker v. Commonwealth,

134 Va. 767, 771-72, 114 S.E. 504, 506 (1922) (requiring specific

intent to kill for attempted murder). However, no Virginia court

has decided whether attempted felony murder is a crime and, if

so, whether the specific intent to kill may be imputed from the

intent to commit the underlying felony.

The majority of jurisdictions that have addressed this issue

hold that there can be no crime of attempted felony murder

because the underlying criminal intent to commit the enumerated

felony is insufficient to prove the specific intent required for

attempted murder. See, e.g., State v. Gray, 654 So. 2d 552,

552-53 (Fla. 1995); People v. Trinkle, 369 N.E.2d 888, 891-92

- 10 -
(Ill. 1977); State v. Robinson, 883 P.2d 764, 767 (Kan. 1994);

Bruce v. State, 566 A.2d 103, 105-06 (Md. 1989); State v. Darby,

491 A.2d 733, 736 (N.J. Super. Ct. App. Div. 1984), certification

denied, 501 A.2d 905 (N.J. 1985); State v. Price, 726 P.2d 857,

858-60 (N.M. Ct. App.), cert. quashed, 726 P.2d 856 (N.M. 1986);

People v. Hassin, 368 N.Y.S.2d 253, 254 (N.Y. App. Div. 1975);

State v. Bell, 785 P.2d 390, 392-94 (Utah 1989). Additionally,

many states limit the application of the felony murder doctrine

to cases involving the commission of an actual homicide. See,

e.g., People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975); Head v.

State, 443 N.E.2d 44, 50-51 (Ind. 1982); Robinson, 883 P.2d at

767. These states explain that "the fact that bodily injury has

occurred in the commission or attempted commission of one of the

. . . statutorily-enumerated felonies [does not] warrant[] the

presumption that, as a matter of law, the perpetrator possessed

the mens rea requisite to murder." Head, 443 N.E.2d at 50. We

too decline to extend the felony murder doctrine to create a

category of attempted felony murder.

In holding that attempted felony murder is a logical

impossibility without proof of a specific intent to kill, other

courts have noted that "[o]ne cannot attempt to commit an act

which one does not intend to commit." Hassin, 368 N.Y.S.2d at

254 (citation omitted). As the Supreme Court of Illinois stated

in Trinkle, "[f]elony murder, unlike attempted murder, does not

require an intent to kill." 369 N.E.2d at 891.
[T]he crime of attempted felony murder is

- 11 -
 logically impossible. . . . [F]elony murder
is based on a legal fiction that implies
malice aforethought from the actor's intent
to commit the underlying felony. This means
that when a person is killed during the
commission of certain felonies, the felon is
said to have the intent to commit the death--
even if the killing was unintended.

Gray, 654 So. 2d at 553 (citations omitted). Similarly, those

courts requiring an actual death before applying a felony murder

analysis have recognized that:
[T]he purpose of the felony-murder doctrine
is to deter those engaged in felonies from
killing negligently or accidentally . . . .
[A] homicide must occur for the felony-murder
rule to apply. . . . [T]he doctrine [should
not be extended] beyond its legislative
rationale of deterring foreseeable deaths
that occur during an inherently dangerous
felony.

Robinson, 883 P.2d at 767 (emphasis added).

We agree with the rationale of Robinson. Accordingly, we

hold that the jury instructions on attempted first degree murder

in the present case were deficient because they lacked the

requirement of a specific intent to kill in order to prove

attempted murder. To allow use of the felony murder doctrine to

impute specific intent from the intent to commit the underlying

felony would eliminate the Commonwealth's burden to prove a

specific intent to kill as an element of attempted murder. See

Viser, 343 N.E.2d at 911 ("Such an instruction, applied to other

forcible felonies, would mean that every person who commits

burglary, or robbery, or rape, is guilty of attempt murder.").

Thus, in an attempted first degree murder case under Code

- 12 -
§ 18.2-32, the Commonwealth is required to prove the specific

intent to kill by one of the enumerated means of "poison, lying

in wait, imprisonment, [or] starving," or by a "willful,

premeditated, and deliberate" act. See Smith v. Commonwealth,

220 Va. 696, 700, 261 S.E.2d 550, 553 (1980) (holding that

premeditation means adopting a specific intent to kill,

distinguishing first from second degree murder).

Additionally, the jury instructions on the attempted murder

charges, unlike Instruction 4 on the attempted robbery charge,

did not require proof of an overt act toward the consummation of

the crime. In Virginia, a charge of attempted murder requires

the Commonwealth to prove that the accused or someone acting in

concert with the accused committed an "overt but ineffectual act

. . . in furtherance of the criminal purpose." Martin v.

Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992)

(en banc). Thus, the attempted murder instructions granted by

the trial judge were deficient because they did not contain the

essential elements of the offense. Upon retrial, the trial

court's instructions to the jury on the attempted murder charges,

if the evidence warrants giving such instructions, must contain

specific intent to kill as an element and the overt act required

for an attempt to murder.
JURY INSTRUCTIONS--MALICE

Appellant also argues that the trial court erred in

instructing the jury on the definition of malice and in allowing

- 13 -
the jury to infer malice as to the attempted murder charges from

the use of a deadly weapon by a participant in the robbery or

attempted robbery.

In a first degree murder case, "[m]alice is subsumed in

proof of willfulness, deliberateness, and premeditation in the

commission of a criminal offense." Mackall v. Commonwealth, 236

Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert. denied, 492 U.S.

925 (1989). Proof of a specific intent to kill is a necessary

element of every attempted first degree murder. Therefore, proof

of intent to kill establishes malice, and no separate proof of

malice is necessary. However, "[t]he use of a deadly weapon,

standing alone, is not sufficient to prove the specific intent
required to establish attempted murder." Hargrave v.

Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974)

(emphasis added). Thus, under these facts, should the

Commonwealth proceed with the attempted murder prosecutions,

instructions on malice are unnecessary upon retrial.
JURY INSTRUCTIONS--LESSER INCLUDED OFFENSE

Appellant next argues that the trial judge erred in refusing

an accessory after the fact instruction regarding the second

robbery and attempted murder of Condrey.

"[T]he trial court should instruct the jury only on those

theories of the case which find support in the evidence." Morse

v. Commonwealth, 17 Va. App. 627, 632-33, 440 S.E.2d 145, 149

(1994). "'If any credible evidence in the record supports a

- 14 -
proffered instruction on a lesser included offense, failure to

give the instruction is reversible error.' 'Such an instruction,

however, must be supported by more than a mere scintilla of

evidence.'" Brandau v. Commonwealth, 16 Va. App. 408, 411, 430

S.E.2d 563, 564 (1993) (citations omitted). "[T]he weight of the

credible evidence that will amount to more than a mere scintilla

of evidence is a matter to be resolved on a case-by-case basis."

Id. at 412, 430 S.E.2d at 565.
The trial court did not err in refusing to instruct the jury

on the lesser included offense of being an accessory after the

fact to the crimes committed against Condrey. The evidence

established that the incident involving Condrey was the second

attack on an ATM customer within a two-hour period. Appellant

participated in the first incident by driving Johnson and Ross to

the ATM, saw Johnson and Ross attempt to rob Kennedy, knew that

Ross had a gun, and saw Ross shoot at Kennedy. He also knew that

Johnson and Ross were planning a second robbery, was told that he

would get some of the stolen money, and drove the car to the

second ATM and during the shoot-out and chase with Condrey.

Thus, no evidence supported an accessory after the fact

instruction on the robbery and second attempted murder charge.

JUROR STRIKES--CAUSE

During voir dire, appellant moved to strike Karen Minor

(Minor) and Patricia Kelley (Kelley). When the trial judge asked

- 15 -
if any prospective jurors had acquired information about the

case, Minor stated that she worked in the same building as

Kennedy and that there had been "a lot of discussion about the

case at work." Minor never discussed the case with Kennedy and

worked in a different department on a different floor. Minor

agreed that the discussion at the office would not prevent her

from rendering a fair trial to appellant. Minor also agreed that

she would not feel uncomfortable rendering a decision favorable

to appellant, and that she had not formed an opinion as to

appellant's guilt or innocence.
Kelley was an employee of Crestar Bank at its downtown

headquarters. She had not heard anything about the case and was

not aware that one of the ATM machines involved in the case was

at a Crestar branch. Like Minor, she indicated that she would be

able to give appellant a fair trial.

"'The partiality or impartiality of an individual juror is a

factual issue best determined by the trial court.'" Swanson v.
Commonwealth, 18 Va. App. 182, 186, 442 S.E.2d 702, 704 (1994)

(quoting Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d

422, 431 (1985), cert. denied, 475 U.S. 1099 (1986)). "'Because

the trial judge has the opportunity . . . to observe and evaluate

the apparent sincerity, conscientiousness, intelligence, and

demeanor of prospective jurors,' the disposition of a challenge

for cause is an exercise of judicial discretion which will not be

disturbed on appeal, absent manifest error." Swanson, 18 Va.

- 16 -
App. at 186, 442 S.E.2d at 704 (quoting Pope v. Commonwealth, 234

Va. 114, 123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485

U.S. 1015 (1988)).

No manifest error exists in this case. The voir dire of

Minor established that, although she worked in the same building

as one victim, she did not work in the same department and had

not discussed the case with him. She indicated that the

discussion of the case at work would not prevent her from giving

appellant a fair trial. 3 Likewise, Kelley stated that she would

be able to give appellant a fair trial. Although Kelley worked

for Crestar, which owned one of the ATM machines involved in this

case, her office was in the downtown headquarters of Crestar, not

at the branch office where the attack against Kennedy occurred.

Additionally, she indicated that her employment would not bias

her against appellant. Thus, no manifest error can be found in

the trial judge's ruling refusing to strike these two prospective

jurors for cause.

3
This case is distinguishable from Clements v. Commonwealth,
21 Va. App. 386, 464 S.E.2d 534 (1995), in which this Court held
that the trial court erred in refusing to strike for cause a
juror who overheard gossip about the case. Id. at 388-93, 464
S.E.2d at 535-38. However, in Clements, which involved an appeal
of a sodomy conviction, the juror also had a close relative who
was raped and sodomized. Id. at 391, 464 S.E.2d at 536-37.
Additionally, the entire voir dire of the juror established that
the juror would "try" to be fair, that it was possible the gossip
would influence his decision, and that he may have already formed
an opinion about the case. Id. at 388-93, 464 S.E.2d at 535-38.
In this case, Minor stated that she would give appellant a fair
trial and that the discussions at work would not influence her
decision.

- 17 -
 JUROR STRIKES--PEREMPTORY

Lastly, appellant challenged the Commonwealth's peremptory

strikes of two African-American jurors as being violative of the

requirements of Batson v. Kentucky, 476 U.S. 79 (1976). The

Commonwealth's attorney offered the following reasons for

striking the two African-Americans. Katherine Gresham's

(Gresham) occupation as a "housekeeping aid" indicated that she

had limited education, and she appeared to be visibly upset when

the jury was told that the minimum prison sentence for all the

charges would be sixty-five years. The other African-American

juror, Stella Jones (Jones), was the youngest member of the jury

panel and was unemployed. The trial judge found these reasons to

be race-neutral and overruled appellant's objection.
In determining whether the Commonwealth's use of peremptory

strikes is racially motivated, "the trial court must consider the

basis of the challenges, the reasons proffered for the strikes,

and any argument presented that such reasons, even if

race-neutral, are pretextual, to determine whether the challenger

has met his burden of proving purposeful discrimination in the

selection of a jury panel." Chandler v. Commonwealth, 249 Va.

270, 277, 455 S.E.2d 219, 223, cert. denied, 116 S. Ct. 233

(1995).
A "trial court's decision on the
ultimate question of discriminatory intent
represents a finding of fact of the sort
accorded great deference on appeal," and this
decision will not be reversed unless clearly
erroneous. This standard of review logically
recognizes the trial court's unique

- 18 -
 opportunity to observe and evaluate "the
prosecutor's state of mind based on demeanor
and credibility" in the context of the case
then before the court.

Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,

715 (1994) (citations omitted). "'Unless a discriminatory intent

is inherent in the prosecutor's explanation, the reason offered

will be deemed race neutral.'" Purkett v. Elem, 115 S. Ct. 1769,

1771 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360

(1991)). Age, education, employment, and demeanor during voir
dire may constitute race-neutral explanations for a peremptory

strike. See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402

S.E.2d 196, 205-06, cert. denied, 502 U.S. 902 (1991).

In the instant case, the trial court specifically found that

the reasons offered by the Commonwealth's attorney were race-

neutral. The prosecutor struck Gresham because of her apparent

limited education and her demeanor, and Jones because of her age

and unemployment. The explanations provided by the prosecutor

satisfied the race-neutral standard. See, e.g., Barksdale v.
Commonwealth, 17 Va. App. 456, 460-61, 438 S.E.2d 761, 764 (1993)

(en banc) (age is appropriate consideration in using peremptory

strike); Winfield v. Commonwealth, 12 Va. App. 446, 452, 404

S.E.2d 398, 401-02 (1991) (limited education apparent from

occupation is proper reason to strike juror), aff'd en banc, 14

Va. App. 1049, 421 S.E.2d 468 (1992). Thus, the trial court's

denial of appellant's Batson challenge was not clearly erroneous.

Accordingly, the judgments of the trial court are affirmed

- 19 -
in part, reversed in part, and remanded for a new trial, if the

Commonwealth be so advised, on the attempted murder charges and

the use of a firearm in the commission of attempted murder

charge, with the jury to be instructed in accordance with this

opinion.
Affirmed in part,
reversed in part,
and remanded.

- 20 -