Bobby Dean Ritchie v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
BOBBY DEAN RITCHIE
MEMORANDUM OPINION * BY
v. Record No. 1251-98-4 JUDGE JERE M. H. WILLIS, JR.
JULY 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Mark Bodner for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his jury trial convictions of possession of
a controlled drug with the intent to distribute and distribution
of a controlled drug, in violation of Code § 18.2-248, Bobby
Dean Ritchie contends that the trial court erred in sustaining
the Commonwealth's peremptory strike of the only
African-American venireman without receiving a particularized
and racially neutral explanation. We find no error and affirm
the judgment of the trial court.
Ritchie is African-American. The Commonwealth exercised
one of its peremptory strikes to remove from the jury Tricia
Jefferson, the only African-American member of the venire.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Defense counsel objected to the strike, arguing that a
prospective juror may not be removed by peremptory strike solely
on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 89
(1976). The Commonwealth's attorney explained that he struck
Jefferson because she was not a landowner and that he would have
struck a white venireman who also was not a landowner, had
defense counsel not previously struck him.
Where a race-based strike is alleged,
[a] defendant must first establish a prima
facie showing that the peremptory strike was
made on the basis of race. At that point,
the burden shifts to the prosecution to
produce explanations for striking the juror
which are race-neutral. Even if
race-neutral, the reasons may be challenged
by the defendant as pretextual. 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. On appeal, the
trial court's findings will be reversed only
if they are clearly erroneous.
Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415
(1994) (citations omitted).
The Commonwealth's attorney's explanation that he struck
Jefferson because she was not a landowner in the county is
facially race-neutral. No evidence suggested that this
explanation was a pretext for removing her because of race. The
Commonwealth's attorney further explained that he wanted to
strike a white male non-landowner, and would have, had the
defense not struck him first. "'Unless a discriminatory intent
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is inherent in the prosecutor's explanation, the reason offered
will be deemed race neutral.'" Purkett v. Elem, 514 U.S. 765,
768 (1995) (citation omitted). The trial court's finding that
the Commonwealth's race-neutral explanation was bona fide is
entitled to great deference, as the trial court is in the unique
position "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) (citation omitted).
We affirm the judgment of the trial court.
Affirmed.
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Benton, J., dissenting.
On voir dire, Jefferson was one of several venire persons
who indicated that a family member had been the victim of a
crime. In response to defense counsel's questioning, Jefferson
said "[her] mom had her purse stolen from her office . . . three
or four years ago." The parties asked no other questions of
her. The prosecutor used his peremptory challenge to remove
Jefferson, the only African-American person on the venire, and
later justified removing her by stating she was not "a
landowner" in the county. When asked by the judge, "[w]hat does
that have to do with it?," the prosecutor suggested that
Jefferson's non-landowner status concerned her "interest in what
goes on in Fairfax County."
Because the prosecutor's exercise of peremptory challenges
is subject to the command of the Fourteenth Amendment, the
Supreme Court has clearly stated that "[t]he prosecutor . . .
[, when called upon to explain this challenge,] must articulate
a neutral explanation related to the particular case to be
tried." Batson v. Kentucky, 476 U.S. 79, 98 (1986) (footnote
omitted) (emphasis added). See also Jackson v. Commonwealth, 8
Va. App. 176, 185, 380 S.E.2d 1, 3, aff'd on reh'g en banc, 9
Va. App. 169, 384 S.E.2d 343 (1989). The reason stated by the
prosecutor for removing Jefferson had no bearing on the case to
be tried, but it has profound implications for systemically
excluding Jefferson and other racial minorities.
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When any large and identifiable segment of
the community is excluded from jury service,
the effect is to remove from the jury room
qualities of human nature and varieties of
human experience, the range of which is
unknown and perhaps unknowable. It is not
necessary to assume that the excluded group
will consistently vote as a class in order
to conclude, as we do, that its exclusion
deprives the jury of a perspective on human
events that may have unsuspected importance
in any case that may be presented.
Peters v. Kiff, 407 U.S. 493, 503-04 (1972) (footnote omitted).
"The Equal Protection Clause guarantees the defendant that
the State will not exclude members of his race from the jury
venire on account of race, or on the false assumption that
members of his race as a group are not qualified to serve as
jurors." Batson, 476 U.S. at 86 (citation omitted) (footnote
omitted). By accepting the reason stated by the prosecutor in
this case, "[t]his Court again sends the message that in
Virginia any reason will suffice to remove African-Americans
from juries so long as the prosecutor does not admit on the
record race as the reason and the trial judge blindly accepts
the prosecutor's assertion that race was not the reason." Buck
v. Commonwealth, 16 Va. App. 551, 561, 432 S.E.2d 180, 186
(1993) (en banc) (Benton, J., dissenting), aff'd, 247 Va. 449,
443 S.E.2d 414 (1994). I again dissent.
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