Jerome M. Gore, s/k/a Jerome Maurice Gore v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JEROME M. GORE, S/K/A
JEROME MAURICE GORE, JR.
MEMORANDUM OPINION * BY
v. Record No. 1578-96-1 JUDGE RICHARD S. BRAY
OCTOBER 21, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Michael Rosenberg for appellant.
Monica S. McElyea, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Jerome M. Gore (defendant) was convicted and sentenced by a
jury for robbery, verdicts later approved by appropriate orders
of the trial court. Defendant complains on appeal that the trial
court erroneously overruled his objection to the Commonwealth's
unconstitutional exercise of peremptory challenges to remove
black venirepersons. We agree and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the issue on appeal.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court
reaffirmed a defendant's "right to be tried by a jury whose
members are selected pursuant to nondiscriminatory criteria" and
condemned the peremptory exclusion of potential jurors "on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
account of race" as violative of the Equal Protection Clause.
Id. at 85-86. Subsequently, the Batson doctrine was extended to
civil litigation, protecting both litigants and venirepersons
alike from either race, Georgia v. McCollum, 505 U.S. 42 (1992);
Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991); see
generally Powers v. Ohio, 499 U.S. 400 (1991), or, gender-based
discrimination in jury selection. J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127 (1994); Riley v. Commonwealth, 21 Va. App.
330, 464 S.E.2d 508 (1995).
Batson and its progeny have established the protocols which
guide a trial court's assessment of an allegedly discriminatory
peremptory challenge.
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). 1
Riley, 21 Va. App. at 333, 464 S.E.2d at 509; see also James v.
Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994).
"A neutral explanation . . . means an explanation based on
1
Although the "actual sequence of events at trial"
oftentimes "merges the separate procedural steps" in a Batson
challenge, such "[c]onsolidation . . . does not invalidate the
process as long as . . . [it] does not adversely impact the
rights of any party." James v. Commonwealth, 247 Va. 459, 462,
442 S.E.2d 396, 398 (1994).
2
something other than the race of the juror." Hernandez v. New
York, 500 U.S. 352, 360 (1991).
If a challenged party undertakes to explain a disputed
strike before the trial court finds the requisite prima facie
case, step 1 is rendered moot. Barksdale v. Commonwealth, 17 Va.
App. 456, 459, 438 S.E.2d 761, 763 (1993) (en banc) (citation
omitted). At step 2,
"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." If not, the "decisive question" for
the trial judge . . . becomes "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 459-60, 438 S.E.2d at 763 (citation omitted).
"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,' which should be disturbed
only if 'clearly erroneous.'" Id. at 460, 438 S.E.2d at 763
(citation omitted). However, if "discriminatory intent is
inherent in the explanation," the peremptory strikes were
unconstitutional as a matter of law and the "trial court's
finding of 'facial neutrality' is not given deference on appeal."
Riley, 21 Va. App. at 335, 464 S.E.2d at 510.
Here, the record discloses that the prosecutor exhausted
three of four peremptory strikes on black venirepersons,
prompting defendant, a black man, to raise a Batson objection.
3
In response, the prosecutor initially "disagree[d] with [defense]
counsel's assertions that he made a prima facie case," but,
nevertheless, explained the disputed strikes without awaiting a
ruling by the trial court. After first attributing the
challenges to "lack of attention, . . . lack of interest"
exhibited by the targeted venirepersons during voir dire, the
prosecutor added that he "was . . . mindful of trying to reach a
split" which would result in "a fairly even, racially balanced
jury, . . . assum[ing] . . . that defense was not going to strike
any black Americans, and, of course, they did."
Under such circumstances, the prosecutor waived the
necessity for defendant to establish a prima facie case of
discrimination at step 1 of the Batson analysis. The explanation
which attended step 2 clearly and impermissibly attributed the
strikes in issue to race, "trying to reach a split" or "racially
balanced" jury. The prosecutor's reliance upon other facially
race-neutral considerations "does not overcome the constitutional
infirmity" inherent in the racially tainted challenges to the
petit jury venire. Id. at 336, 464 S.E.2d at 510. 2
Accordingly, we must reverse the conviction and remand the
case for a new trial if the Commonwealth be so advised.
2
While the Commonwealth's contention that the prosecutor was
merely "indicating that he would have been willing to forego his
misgivings about some of the jurors he struck if removing them
would have taken too many blacks off the jury" may be true and
would explain the trial court's ruling, it is without support in
the record before us.
4
Reversed and remanded.
5