Opinion
Record No. 1989-90-1
February 16, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE WILLIAM L. FORBES, JUDGE
William M. McKee (Zoby Broccoletti, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General, (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Benton and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Edward Lee Barksdale appeals from his convictions for possession of cocaine with the intent to distribute and possession of a firearm while in possession of cocaine. He contends that the Commonwealth's strikes of African-American members of the jury pool violated Batson v. Kentucky, 476 U.S. 79 (1986). Barksdale also argues that the jury's verdict sentenced him contrary to the instructions and in violation of the statute. We reverse the convictions and remand this case for a new trial.
I.
Barksdale's counsel moved for a mistrial after the assistant Commonwealth's attorney used peremptory strikes to remove three African-Americans from the jury panel. The assistant Commonwealth's attorney responded that he was "primarily looking for younger people" and that he had struck three of the four African-American "young people." The assistant Commonwealth's attorney informed the court that he did not want "young jurors or jurors who appeared not to be homeowners or people with not as big [a stake] in the community as other people." Barksdale, through his attorney, responded that there were still a number of "fairly young looking people who were not struck" from the panel. Without stating a reason, the trial judge overruled Barksdale's motion.
The Attorney General asserts that the Commonwealth's attorney only struck two African-Americans. The exchange between both attorneys and the trial judge at Appendix 8 indicates some confusion, but the Commonwealth's attorney stated, "I was primarily looking for younger people [to strike]. Specifically to show the concern there was another [African-American] lady I left on. Three of the young people were [African-American]. I didn't want to strike all of them. Three of the four I struck."
At the conclusion of the trial, the jury returned a verdict of guilty of possession of cocaine and guilty of possession of a firearm while in possession of cocaine. The jury recommended a sentence of 20 years and a $35,000 fine for possession of the cocaine and a sentence of two years and a $1000 fine for possession of the firearm while in possession of the cocaine. After the jury left the courtroom, the trial judge realized that the sentence recommended by the jury for the firearm possession offense was "not in compliance" with Code § 18.2-308.4. Barksdale moved to set aside the verdict at that time. The trial judge imposed the prison term for the firearm offense but suspended the $1000 fine. At the sentencing hearing, the trial judge also suspended the $35,000 fine recommended by the jury in connection with the possession of cocaine conviction.
II.
The Commonwealth first argues on appeal that a prima facie case of racial discrimination was not established because the prosecutor responded to Barksdale's request for an explanation of his strikes before the trial judge ruled on whether the prima facie case had been made. The omission of a ruling whether a prima facie case has been proved is not fatal to a Batson review of peremptory strikes. In Faison v. Hudson, 243 Va. 397, 417 S.E.2d 305 (1992), the Supreme Court held that if the appellee articulates a reason for the strikes without first raising the issue of whether a prima facie case has been established, the appellee waives the issue on appeal and aprima facie case is considered established. Id. at 402, 417 S.E.2d at 308. At trial, the Commonwealth did not raise the issue.
Under Batson, our next step on review is to consider whether the prosecutor articulated a racially neutral explanation for striking the African-American jurors. Hernandez v. New York, ___ U.S. ___, ___, 111 S. Ct. 1859, 1866 (1991). "In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Hernandez, ___ U.S. at ___, 111 S. Ct. at 1866.
The prosecutor told the trial court that he had exercised his peremptory strikes to remove "young jurors or jurors who appeared not to be homeowners or people with not as big [a stake] in the community as other people." Yet, the record contains no information about the members of the jury pool. The jury list contains only the names of the jury panel. The list does not indicate their address or homeowning status. There is no indication of their respective ages. The facts were inadequate for the trial judge to determine whether the prosecutor's reasons for striking the African-American jurors were factually accurate, a prerequisite to a finding of racial neutrality. See id. at ___, 111 S. Ct. at 1866.
The Commonwealth's attorney did not "articulate a neutral explanation related to the particular case to be tried." Furthermore, the explanations were vague enough that they "demanded further inquiry." This record does not contain a factual basis to support the Commonwealth's attorney's explanations and the trial judge's conclusion.
In sum, we find that [the appellant] met his burden in establishing a prima facie case of purposeful discrimination even though two blacks remained on the jury panel. We further find that the Commonwealth's asserted reasons were insufficient to rebut the prima facie case. The conviction is therefore reversed and the case remanded for a new trial before a properly selected jury.
Jackson v. Commonwealth, 8 Va. App. 176, 187, 380 S.E.2d 1, 7,aff'd en banc, 9 Va. App. 169, 384 S.E.2d 343 (1989) (emphasis added) (citations omitted).
"The importance of the record is obvious, for it is axiomatic that an appellate court's review of the case is limited to the record on appeal." Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). On review, based on the record, we cannot say that the trial judge had sufficient evidence to rule as a matter of law that the Commonwealth's explanations rebutted Barksdale's prima facie case. No evidence contained in the record supports the Commonwealth's claims. We reverse the trial judge on this issue.
III.
Because the sentencing issue is not likely to recur on retrial, we need not address it.
Reversed and remanded for a new trial.
Because the majority has departed from the standard of appellate review enunciated in Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, and ignored the factual findings of the trial court, I respectfully dissent.
In Batson, the Supreme Court recognized that "interpretation" of its decision in Swain v. Alabama, 380 U.S. 202 (1965), had "placed on defendants a crippling burden" by requiring "proof of repeated striking of blacks [by prosecutors] over a number of cases . . . to establish a violation of the Equal Protection Clause" in the selection of a petit jury. Batson, 476 U.S. at 92. The Court concluded that this "evidentiary formulation" had rendered "prosecutors' peremptory challenges . . . largely immune from constitutional scrutiny" and rejected it "as inconsistent" with the proper "standards . . . for assessing a prima facie case under the Equal Protection Clause." Id. at 92-93.
In response, the Court identified a "combination of factors in the empaneling of the petit jury" which "raises the necessary inference" to defendant's "requisite showing" of "purposeful discrimination." Id. at 96. As these criteria have been previously adopted by our Court and are fairly stated by the majority, they need not be repeated here.
Once a defendant "makes a prima facie showing," the "burden shifts to the State to come forward with a neutral explanation" of its strikes, which must be "related to the particular case," and the trial court then "will have the duty to determine if the defendant has established purposeful discrimination" vel non. Id. at 97-98. Batson recognized that this determination by the trial judge "largely will turn on evaluation of credibility" and constitutes "'a finding of fact,'" entitled to great "deference" by a "reviewing court." Id. at 98 n. 21 (citations omitted).
Later, in Hernandez v. New York, 500 U.S. ___, 111 S. Ct. 1859 (1991), the Supreme Court revisited Batson and, once again, reasoned that "the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal," id. at ___, 111 S. Ct. at 1868, which should be disturbed only if "clearly erroneous." Id. at ___, 111 S. Ct. at 1871. Consistent withBatson, the Hernandez Court noted that the "decisive question" before the trial judge in a Batson analysis "will be whether counsel's race-neutral explanation for a peremptory challenge should be believed" and, "once that has been settled, there seems nothing left to review." Id. at ___, 111 S. Ct. at 1869-70. Such "[d]eference to trial court findings . . . makes particular sense in this context" because "evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.'" Id. at ___, 111 S. Ct. at 1869 (citations omitted).
This view accords with a post-Batson, pre-Hernandez holding by a panel of this Court in Winfield v. Commonwealth, 12 Va. App. 446, 404 S.E.2d 398 (1991), aff'd en banc, ___ Va. App. ___,
421 S.E.2d 468 (1992). There, we acknowledged that "Batson places upon the trial courts the burden of weighing the explanations tendered by prosecutors justifying their use of peremptory strikes, assessing their genuineness, and determining whether they bespeak discriminatory motives." Id. at 453, 404 S.E.2d at 402. In discharging this responsibility, however, trial judges enjoy the unique "opportunity" of personal observation and familiarity with "the general circumstances of the case."Id. As a consequence, we must be controlled by the "accepted standards of review" and "uphold the trial court's decision if it is supported by credible evidence." Id.
Later, relying on Hernandez, we affirmed, en banc, the panel decision in Winfield. ___ Va. App. at ___, 421 S.E.2d at 469.
Assuming a prima facie case of purposeful discrimination was before the trial court in this instance, the prosecutor's "reasoning" for his peremptory strikes related to the ages of panel members. He explained that he "was primarily looking for younger people," "young jurors or jurors who appeared not to be homeowners or people with not as big as stakes [sic] in the community as other people." The prosecutor noted that "[the] only other young person . . . was black" and he "left her on" to "show [his] concern" for the racial issue. Defense counsel acknowledged that this explanation "certainly . . . would appear to be rationally mutual [sic]" and commented only that a "number of fairly young looking people . . . were not struck."
Implicitly finding the prosecutor's explanation credible, racially neutral, and properly related to the case, the trial judge overruled defendant's motion for a mistrial. Nevertheless, the majority dismisses these findings as based upon "inadequate" facts and holds that the evidence is not sufficient to "rule as a matter of law that the [Commonwealth] . . . rebutted [defendant's] prima facie case since there isno evidence contained in the record which supports the Commonwealth's claims." (emphasis added). This conclusion, however, overlooks realities of the jury selection process which are recognized and approved in Batson, Hernandez andWinfield.
The trial judge presided over the proceedings, personally observed the entire jury panel, the challenged jurors and the composition of the trial jury, entertained the assurances and arguments of counsel and was familiar with the case. Obvious human characteristics such as age, sex, race and demeanor are generally discernible and apparent to anyone present in the courtroom, including the trial judge. Though not precisely recited or documented in this record to the satisfaction of the majority, events and circumstances attendant to the jury selection process clearly provided the trial judge with an array of sensory perceptions that were highly relevant and appropriate to a disposition of defendant's motion. See Winfield, 12 Va. App. at 449-50, 404 S.E.2d at 400.
The prosecutor's attribution of his peremptory strikes to age is an explanation previously approved by this Court. Chambliss v. Commonwealth, 9 Va. App. 267, 269-70, 386 S.E.2d 478, 479 (1989). The representation was subject to the scrutiny and confirmation of the court, as well as all assembled, and was not challenged by defense counsel. It is unnecessary that this record otherwise reflect circumstances apparent in the proceedings and obviously before the trial judge. Clearly, the evidence supported the prosecutor's explanation and, more importantly, the court's factual findings, which rejected any discriminatory purpose in peremptory challenges.
Accordingly, I would affirm the decision of the trial court.