Chris O. Turner, s/k/a Crist O. Turner v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
CHRIS O. TURNER, S/K/A
CRIST O. TURNER
MEMORANDUM OPINION * BY
v. Record No. 1642-97-2 JUDGE NELSON T. OVERTON
AUGUST 11, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender (John H. Cobb, Jr., Public
Defender, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Chris Turner (defendant) was convicted by a jury of murder
of the second degree and received forty years imprisonment. On
appeal, he contends four black members of the venire which
eventually composed his jury were stricken by the prosecution
because of their race. Defendant ascribes error to the trial
court's ruling that he did not make out a prima facie case of
discrimination so as to require the prosecution to identify a
race-neutral reason for the strikes. Because we agree defendant
made out a prima facie case, we reverse and remand.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The legal issue involved is a narrow one. In Batson v.
Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court
held purposeful discrimination based on race in selecting jurors
violates the Equal Protection Clause. The procedure for
challenging strikes believed to violate Batson is strictly
circumscribed.
The opponent of a peremptory challenge must
establish a prima facie case of
discrimination (step 1); once a prima facie
case is made, the burden of production shifts
to the proponent of the strike to produce a
race-neutral or . . . gender-neutral
explanation (step 2); if a [facially] neutral
explanation is proffered, the trial court
must then decide whether the opponent of the
strike has met its burden and proved
purposeful discrimination (step 3).
Riley v. Commonwealth, 21 Va. App. 330, 333, 464 S.E.2d 508, 509
(1995). The trial court ruled defendant failed to complete step
one: establishing a prima facie case of discrimination. The
Commonwealth, therefore, was never forced to divulge a
race-neutral reason for the strikes.
The Supreme Court of the United States has roughly
delineated what constitutes a prima facie case.
To establish . . . a case [of purposeful
discrimination in the selection of the jury],
the [moving party] first must show that he is
a member of a cognizable racial group, . . .
and that the [opposing party] has exercised
peremptory challenges to remove from the
venire members of the [moving party's] race.
Second, the [moving party] is entitled to
rely on the fact, as to which there can be no
dispute, that peremptory challenges
constitute a jury selection practice that
permits "those to discriminate who are of a
mind to discriminate." . . . Finally, the
- 2 -
[moving party] must show that these facts and
any other relevant circumstances raise an
inference that the [opposing party] used that
practice to exclude the veniremen from
the . . . jury on account of their race.
This combination of factors in the empaneling
of the . . . jury, as in the selection of the
venire, raises the necessary inference of
purposeful discrimination.
Batson, 476 U.S. at 96-97 (citations omitted). Defendant clearly
met the first two parts of this inquiry: defendant himself is
black and all four veniremen who were removed were also black.
It was the third part, however, that the trial court found
wanting. Because the jury remained predominantly black, the
court ruled a prima facie case was not established.
After both parties exercised their peremptory strikes, the
jury was 58% black, down from 75% before the strikes. While the
numbers are important, "the mere inclusion of blacks on a jury
does not automatically preclude a finding of a prima facie case."
Jackson v. Commonwealth, 8 Va. App. 176, 183, 380 S.E.2d 1, 4,
aff'd, 9 Va. App. 169, 384 S.E.2d 343 (1989) (en banc). See also
Taitano v. Commonwealth, 4 Va. App. 342, 347, 358 S.E.2d 590, 592
(1987) (prima facie case was established even though blacks
remained on jury). Two other "relevant circumstances" which
raise an inference of discriminatory action include: (1) whether
the Commonwealth used a disproportionate number of strikes
against blacks and (2) the quality and quantity of the
Commonwealth's attorney's questions and statements during voir
dire examination and in exercising his challenges. See Jackson,
- 3 -
8 Va. App. at 183, 380 S.E.2d at 4 (citing Batson, 476 U.S. at
96-97).
In the instant matter, the Commonwealth used 100% of its
strikes against black veniremen. This was a disproportionate
number. See Jackson, 8 Va. App. at 184, 380 S.E.2d at 5 (using
three out of four strikes against blacks was disproportionate).
Further, the Commonwealth's attorney asked only two questions
during voir dire. He asked whether any members of the venire had
any family member or friend who was killed or murdered. The four
veniremen who responded affirmatively to this question were not
struck by the Commonwealth. He also asked whether any juror felt
he could not look at pictures of the victim. None of the venire
responded affirmatively to this question. The lack of meaningful
voir dire suggests the Commonwealth's attorney had no information
upon which to make a rational jury selection and raises the
inference he reverted to striking veniremen based on race.
Finally, the group which was struck was not alike in either age,
gender or any other recognizable way.
We conclude the defendant made out a prima facie case of
discriminatory action by the Commonwealth. The burden was then
on the Commonwealth to rebut the presumption by offering a
race-neutral reason for the peremptory strikes. The trial
court's ruling that the Commonwealth need not rebut the inference
was error. We reverse defendant's conviction and remand the case
for a new trial if the Commonwealth be so advised.
- 4 -
Reversed and remanded.
- 5 -