Haywood Marcus Robinson v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
HAYWOOD MARCUS ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 1011-01-2 JUDGE ROBERT J. HUMPHREYS
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
William P. Irwin, V (Bowen, Bryant,
Champlin & Carr, on brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Jennifer R. Franklin, Assistant Attorney
General, on brief), for appellee.
Haywood Marcus Robinson appeals his convictions, after a jury
trial, for murder, malicious wounding, breaking and entering with
intent to commit robbery or murder, and use of a firearm to commit
murder and malicious wounding. Robinson contends that the trial
court erred in finding the prosecutor enunciated race-neutral
bases for its use of peremptory strikes for five black members of
the venire. For the reasons that follow, we affirm Robinson's
convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
Robinson raised a Batson motion after the Commonwealth
utilized each of its five peremptory challenges to strike five of
the eight black jurors who were part of the 23-member venire.
Specifically, Robinson stated, "the record will reflect the
defendant is black. Eight of the twenty-three prospective jurors
are black. All five of the Commonwealth's strikes are used to
strike blacks."
The trial court stated that it did not "believe" Robinson had
asserted a sufficient prima facie case of discrimination but,
nevertheless, it directed the Commonwealth to state its rationale
for each of the strikes. After the Commonwealth stated its
rationale for the strikes, the trial court denied Robinson's
motion. Robinson raised no objection to the court's ruling, nor
did he further argue the issue.
On appeal, Robinson contends the trial court erred in
overruling the Batson motion. We disagree.
We recognize the well-reasoned rule that a defendant is
constitutionally entitled to a jury panel whose members have been
selected on a racially nondiscriminatory basis. Batson v.
Kentucky, 476 U.S. 79, 85-86 (1986). Indeed,
[i]n Batson, the Supreme Court stated the
requirements for establishing a prima facie
case of purposeful discrimination in the
selection of a petit jury. The Court held
that to establish such a prima facie case[:]
"the defendant first must show that he is a
member of a cognizable racial group . . .
and that the prosecutor has exercised
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peremptory challenges to remove from the
venire members of the defendant's race.
Second, the defendant 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
defendant must show that these facts and any
other relevant circumstances raise an
inference that the prosecutor used that
practice to exclude the veniremen from the
petit jury on account of their race."
Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780
(2000) (quoting Batson, 476 U.S. at 96).
Thus,
[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.
Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415
(1994) (citations omitted).
Contrary to the implication raised by Robinson, the mere fact
that the prosecution has excluded African-Americans by using
peremptory strikes does not itself establish a prima facie case
under Batson. Batson, 476 U.S. at 96. Instead, a defendant must
identify facts and circumstances that raise an inference that
potential jurors were excluded based on their race. Id.
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 We first note the apparent conflict in the trial court's
ruling concerning whether Robinson established a prima facie case
of discrimination. The trial court initially stated that it
"believed" Robinson had failed to assert the appropriate prima
facie showing of purposeful discrimination. Nevertheless, the
trial court continued the analysis as if Robinson had established
a prima facie case, by shifting the burden of production to the
Commonwealth, requiring it to state its rationale for the manner
in which it exercised its peremptory challenges. In light of this
facially conflicting analysis, we assume, without deciding, that
Robinson established a prima facie case of purposeful
discrimination under Batson and address the merits of his claim on
appeal.
The prosecutor first explained that she struck two of the
venire members due to their criminal records. This Court has held
that striking potential jurors because they have a criminal record
is an objective, race-neutral reason. See Langhorne v.
Commonwealth, 13 Va. App. 97, 107, 409 S.E.2d 476, 482 (1991). 1
Further, we have recognized that striking a venireman because
he or she lives near the scene of the crime, as long as the
purpose is based upon a rational, race-neutral explanation, is a
clear, specific non-racial reason for striking the potential
1
Indeed, Robinson conceded during oral argument that the
prosecutor properly struck from the panel the members who had
criminal records.
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juror. See Taitano v. Commonwealth, 4 Va. App. 342, 347, 358
S.E.2d 590, 592-93 (1987) (holding that the prosecutor's concern
with the fact that the jurors lived near the defendant or near the
scene of the crime, or in areas of "high crime," as well as his
consideration of their age, dress, and demeanor, was a
sufficiently race-neutral explanation). Here, the prosecutor
stated that she struck a third member of the venire because of the
venire-woman's residence near the crime scene. In particular, the
prosecutor struck her due to the violent nature of the crime and
the potential for her to be intimidated in reaching a finding
concerning the murder of one of her neighbors.
Moreover, we have found that striking jurors because they
exhibit certain negative body language can also be an adequate,
race-neutral explanation in the appropriate circumstances. See
Goodson v. Commonwealth, 22 Va. App. 61, 81, 467 S.E.2d 848, 858
(1996) ("Age, education, employment, and demeanor during voir dire
may constitute race-neutral explanations for a peremptory
strike."); see also Robertson v. Commonwealth, 18 Va. App. 635,
640, 445 S.E.2d 713, 716 (1994). The prosecutor explained that
she chose to strike the remaining two venire members because of
the negative body language they exhibited during her presentation
and voir dire of the venire.
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.
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This standard of review logically recognizes
the trial court's unique 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.
Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting
Robertson, 18 Va. App. at 639, 445 S.E.2d at 715). Accordingly,
we find that the trial court's decision on the ultimate decision
of discriminatory intent in this matter was not "clearly
erroneous".
In addition, as stated above,
[i]n 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."
Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting Chandler
v. Commonwealth, 249 Va. 270, 277, 455 S.E.2d 219 (1995)).
Thus, Robinson's argument that the trial court improperly ended
its determination without considering whether the prosecutor's
reasons were pretextual is without merit.
Indeed, once the prosecutor produced evidence of
race-neutral rationale, Robinson remained charged with the
burden of proving "that these facts and any other relevant
circumstances raise[d] an inference that the prosecutor used
[the stated] practice to exclude the veniremen . . . on account
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of their race." Batson, 476 U.S. at 96. Robinson raised no
such allegation and/or evidence of pretext. Thus, the trial
court did not commit error in failing to consider the issue.
See Riley v. Commonwealth, 21 Va. App. 330, 464 S.E.2d 508
(1995) (holding that a trial court must specifically rule on a
defendant's allegation of pretext, when such an argument is
raised).
Based upon the above, we will not disturb the trial court's
finding that the prosecutor's explanations for striking the five
potential jurors were race-neutral, and we affirm Robinson's
convictions.
Affirmed.
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