Shajuan Lee McRae v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia
SHAJUAN LEE McRAE
MEMORANDUM OPINION * BY
v. Record No. 0488-00-2 JUDGE SAM W. COLEMAN III
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
John B. Boatwright, III (Boatwright & Linka,
on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Shajuan Lee McRae was convicted of possession of a firearm
while in possession of cocaine. On appeal, McRae contends the
trial court erred by: (1) striking three prospective jurors for
cause; and (2) concluding that the prosecution did not violate
Batson v. Kentucky, 476 U.S. 79 (1986), by using three of its four
peremptory challenges to remove African-Americans from the jury.
Finding no reversible error, we affirm.
THE STRIKES FOR CAUSE
As part of jury voir dire, the following exchange took place:
THE COURT: Now, do any of you know of any
reason, whatsoever, why you could not hear
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and adjudge the evidence fairly? This case
should be concluded today, so it will not be
a trial where you will be asked to come back
tomorrow. But do you know of any reason
whatsoever, why you could not hear and
adjudge the evidence fairly? Any moral,
religious reasons, any personal convictions,
any reasons, whatsoever?
THE JURORS: (Hands raised).
THE COURT: Ms. Chambliss?
JUROR CHAMBLISS: I have a nephew in jail.
I can't sit on it.
THE COURT: Ms. Chambliss, I'm going to
excuse you. Why don't you have a seat in
the courtroom. Ms. Robinson.
JUROR ROBINSON: I have a nephew, too.
THE COURT: And you feel you could not sit
on this jury?
JUROR ROBINSON: Yes.
THE COURT: All right. Ms. Robinson, why
don't you have a seat in the courtroom.
NOTE: At this time, Juror Chambliss and
Juror Robinson step down from the jury box
and have a seat in the courtroom.
THE COURT: Ms. Otey, you said you know Mr.
Solomon?
JUROR OTEY: Yes.
THE COURT: Counsel, would you like to
question her behind the bench or do you have
any objection to the Court excusing her?
MR. BOATWRIGHT: Yes.
THE COURT: All right. Let's question her
behind [the bench]. Ms. Otey, why don't you
come behind the bench.
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NOTE: At this time, a bench conference is
held outside the hearing of the jury as
follows:
BENCH CONFERENCE HELD OUT
OF THE HEARING OF THE JURY
THE COURT: Ms. Otey, why don't you stand
right here so the court reporter can see
you. Tell us how you know Mr. Solomon.
JUROR OTEY: I know Mr. Solomon by him,
like, coming to my house. I haven't seen
him in a long time. I know him by him
coming to my house, because his brother
live[s] at my house.
THE COURT: His brother lives with you?
JUROR OTEY: Uh-huh.
THE COURT: His brother is a tenant in your
house?
JUROR OTEY: Uh-huh.
THE COURT: Why don't you have a seat.
MR. BOATWRIGHT: I object to the Court
excusing her.
THE COURT: Have a seat in the jury box.
NOTE: At this time, Juror Otey returns to
the jury box.
MR. BOATWRIGHT: She said nothing that
indicated she has any bias in favor of the
witness. She just says she knows the man.
She hasn't seen him in a long time.
THE COURT: She also said his brother is her
tenant, lives with her.
MR. BOATWRIGHT: I understand that.
THE COURT: We'll note your objection to the
Court's excusing her on the record. Is
there any other reason?
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MR. BOATWRIGHT: I move for a mistrial on
that basis.
THE COURT: Request for mistrial denied.
MR. BOATWRIGHT: Will this be a time to take
up my objection to the Court excusing the
two other jurors?
THE COURT: Yes.
MR. BOATWRIGHT: They just simply don't want
to be here. That is not enough to excuse
them for cause. I understand how people
don't want to be here and don't want to sit
in judgment, but unless they say they
absolutely can't follow the Court's
instructions, which they did not say, it is
not a basis to strike them for cause, and I
would move the Court to restore them to the
panel.
THE COURT: The request is denied. Your
exception is noted for the record.
The trial judge then excused juror Otey, after having excused
jurors Chambliss and Robinson.
McRae contends on appeal the trial judge abused her
discretion by excluding the three jurors who showed no grounds
for disqualification for cause, thereby depriving him of his
right to an impartial jury.
An accused is constitutionally guaranteed the right to trial
by "an impartial jury." U.S. Const. amends. VI, XIV; Va. Const.
art. I § 8; see Code § 8.01-358; Rule 3A:14. "Trial courts, as
the guardians of this fundamental right, have the duty to procure
an impartial jury." Griffin v. Commonwealth, 19 Va. App. 619,
621, 454 S.E.2d 363, 364 (1995).
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Trial courts primarily determine whether a
venireperson is free from partiality and
prejudice through meaningful voir dire.
During voir dire, the trial judge must probe
the conscience and mental attitude of the
prospective jurors to ensure impartiality.
It is not uncommon to discover during voir
dire that prospective jurors have
preconceived notions, opinions, or
misconceptions about the criminal justice
system, criminal trials and procedure, or
about the particular case. Even though a
prospective juror may hold preconceived
views, opinions, or misconceptions, the test
of impartiality is whether the venireperson
can lay aside the preconceived views and
render a verdict based solely on the law and
evidence presented at trial.
Id. (citations omitted) (emphases added).
"[W]e review a trial court's decision whether to strike a
prospective juror for cause for an abuse of discretion and that
ruling will not be disturbed on appeal unless it appears from
the record that the trial court's action constitutes manifest
error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531
S.E.2d 1, 6 (2000). "In determining whether a prospective juror
should have been excluded for cause, we review the entire voir
dire, rather than a single question and answer." Barnabei v.
Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996)
(citation omitted). "'The standard to be applied by the trial
court in determining whether to retain a venireman on the jury
panel is whether his answers during voir dire examination
indicate to the court something that would prevent or
substantially impair the performance of his duties as a juror in
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accordance with his instructions and his oath.'" Moten v.
Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251 (1992)
(citations omitted). The Supreme Court and this Court have
repeatedly emphasized that when reasonable doubt exists whether a
juror possesses the ability to render a fair and impartial service
that doubt must be resolved in favor of the accused. See Breeden
v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).
From our review of Virginia's appellate decisions involving
challenges to jurors for cause in non-capital cases, the issue
heretofore has been whether a court improperly seated a biased
juror, not whether a court erroneously or improperly excluded an
unbiased or qualified juror. 1 Here, however, we are asked to
1
In capital cases, because constitutional considerations
require that the death penalty be administered with fundamental
fairness and due process of law, appellate courts necessarily
must review whether trial courts err by removing for cause
prospective jurors who are inalterably opposed to the death
penalty. See Wainwright v. Witt, 469 U.S. 412, 424 & n.5 (1985)
(refining Witherspoon procedure for excluding jurors whose view
regarding death penalty affects their ability to follow the law
and instructions); Witherspoon v. Illinois, 391 U.S. 510, 522
(1968) (holding that imposition of death penalty by jury from
which jurors were excluded "simply because they voiced general
objections to the death penalty" violated right to impartial
jury provided to defendant under the 6th and 14th amendments).
For examples of capital cases that review the propriety of
having struck a qualified juror, see Adams v. Texas, 448 U.S.
38, 45-50 (1980) (erroneous exclusion of juror in capital murder
trial violated 6th and 14th Amendments; states may not execute
sentence of death where even one putative juror has been
excluded merely because of general objection to capital
punishment); Davis v. Georgia, 429 U.S. 122, 123 (1976) (holding
that venireperson is properly excluded only if he or she is
"'irrevocably committed'" against death penalty regardless of
facts and circumstances that might emerge at trial; if a
venireperson is excluded but not "so committed" against the
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decide the novel question of whether a trial court abused its
discretion by removing an otherwise qualified juror in a
non-capital case because the court erroneously either determined
that the juror was biased or arbitrarily excluded a qualified
juror.
McRae asserts that the trial court abused its discretion by
excluding the three jurors for cause where no bias was
demonstrated and the trial judge granted the challenge for cause
merely to exclude a reluctant juror or was being overly cautious
by excluding an otherwise qualified juror. Although the record
in the present case may fail to support the trial judge's
decision to sua sponte strike for cause venirepersons Chambliss,
Robinson or Otey, the only question that we may properly
consider as reversible error is whether the trial court abused
its discretion in seating an unqualified juror, not whether an
otherwise qualified juror was excluded from the jury.
death penalty, "any subsequently imposed death penalty cannot
stand"); State v. Stallings, 413 S.E.2d 710, 712 (Ga. 1992)
(reversing and remanding for resentencing where the trial court
erroneously excused a juror who indicated she had some qualms
about imposing the death penalty and was leaning toward a life
sentence; explaining that further voir dire might have
established juror's disqualification by revealing a view on
capital punishment that would prevent or impair her from
performing her duty and acting in accordance with the
instructions and her oath); Durrough v. State, 620 S.W.2d 134,
142 (Tex. Crim. App. 1981) (reversing and remanding where record
failed to show excluded juror was so irrevocably opposed to the
death penalty she could not follow the law or obey the court's
instructions).
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"A defendant is entitled to fair and impartial jurors, not
jurors whom he hopes will be favorable towards his position. A
defendant's rights go to those who serve, not to those who are
excused." State v. Mendoza, 596 N.W.2d 736, 749 (Wis. 1999).
The erroneous or improper exclusion for cause by the trial court
of a venireperson does not violate a defendant's rights in a
non-capital case under the United States Constitution as long as
the jury that hears the case is impartial. See United States v.
Gonzalez-Balderas, 11 F.3d 1218, 1221-22 (5th Cir. 1994)
(holding that "improper removal of a member of the venire is not
grounds for reversal in a non-capital case unless the jurors who
actually sat were not impartial within the meaning of the sixth
amendment"); Shettel v. United States, 113 F.2d 34, 36 (D.C.
Cir. 1940) (holding that the Constitution guarantees trial by an
impartial jury and "appellant was not in any way prejudiced by
the exclusion of these [qualified] persons" from the jury);
Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998)
(holding that "a defendant has no right that any particular
individual serve on the jury. The defendant's only substantial
right is that the jurors who do serve be qualified. The
defendant's rights go to those who serve, not to those who are
excused."). Because the protections afforded under Virginia's
Constitution "are co-extensive with those in the United States
Constitution," Bennefield v. Commonwealth, 21 Va. App. 729,
739-40, 467 S.E.2d 306, 311 (1996), a trial court's exclusion
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for cause of an otherwise qualified venireperson likewise does
not affect one's right under Virginia's Constitution in a
non-capital case so long as the seated jury was fair and
impartial.
Although McRae contends the trial court's actions deprived
him "of his right to an impartial jury," he does not complain
that the jury that heard his case was biased or not impartial.
He puts forth no evidence or argument that the jury selected was
not impartial. Therefore, while the trial judge may have acted
precipitously by excluding for cause one or more of the
prospective jurors, nothing in the record suggests that the jury
selected was not impartial or not qualified. Accordingly, the
trial judge's excluding the jurors was not reversible error.
THE BATSON CHALLENGES
After the court seated twenty potential jurors free from
exception, the parties exercised their peremptory strikes, after
which appellant's attorney made the following motion:
MR. BOATWRIGHT: Judge, pursuant to Batson
v. Kentucky, I'd ask the Court to require
the Commonwealth to provide race neutral
reasons for exclusion of jurors presently in
position No. 7, Lauretta Harris, a black
female; No. 20, Eddie Miles, a black male;
and Kenneth Mosby, Juror No. 5, also a black
male.
Mr. Mosby was the only one of those
people who gave any kind of response to any
of the questions asked by anybody. He said,
A, that he had been charged with something,
and, B, that he had previously served on a
civil jury. The other two, Ms. Harris and
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Mr. Miles, gave no responses, during voir
dire or otherwise.
Before the trial judge could respond, the prosecutor
volunteered race-neutral reasons for striking the three jurors.
After being provided race-neutral explanations, the trial judge
ruled as follows:
The Court will rule on the motion as
follows. First of all, the Court does not
believe a prima facie case was established
under Batson. A prima facie case is
established by exclusion plus other facts
and circumstances. Even if a prima facie
case has been established, the party making
the strikes has stated race neutral reasons
for the strikes, so the motion will be
denied.
A prospective juror may not be peremptorily removed from a
jury panel solely on the basis of race. Batson, 476 U.S. at 89.
In order to properly raise a challenge to a Batson violation
[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).
To establish a prima facie case of purposeful
discrimination under Batson,
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"the defendant first must show that he is a
member of a cognizable racial group . . .
and that the prosecutor has exercised
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).
The defendant has the burden of
producing a record that supports a prima
facie case of purposeful discrimination.
The fact that the prosecution has excluded
African-Americans by using peremptory
strikes does not itself establish such a
prima facie case under Batson. A defendant
also must identify facts and circumstances
that raise an inference that potential
jurors were excluded based on their race.
The composition of the jury that ultimately
is sworn is a relevant consideration in
reviewing a Batson challenge.
Id. at 674, 529 S.E.2d at 780-81 (citations omitted) (emphasis
added).
Because the record in Johnson contained details about the
jury's racial composition, the Supreme Court was able to rely,
in part, on the fact that "[t]he jury selected in this case was
comprised overwhelmingly of African-Americans" when it affirmed
the trial court's ruling that the appellant failed to establish
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a prima facie case of purposeful discrimination. Id. at 674,
529 S.E.2d at 781.
Here, appellant failed to produce a complete record to
support a prima facie case of purposeful discrimination.
Although the record shows that the Commonwealth used three of
its four peremptory strikes to remove African-American jurors,
the record fails to show the racial composition of the venire or
of the jury sworn, which may, for all we know, have all been
African-American. Without such information, appellant has
failed to establish a prima facie case of purposeful
discrimination. Cf. Faison v. Hudson, 243 Va. 397, 402, 417
S.E.2d 305, 308 (1992) (finding in civil trial that plaintiff
presented sufficient facts to establish prima facie case of
discrimination where record showed that the defendant struck
from the venire the only African-American); Linsey v.
Commonwealth, 17 Va. App. 47, 50, 435 S.E.2d 153, 154 (1993)
(finding prima facie case established where stricken juror was
only African-American on the venire of twenty, where that juror
did not respond to any questions and where all five white
members of the venire who did not respond were not stricken).
Because appellant failed to provide a record of the racial
composition of the venire or the jury and because he failed to
identify other facts and circumstances sufficient to raise an
inference that potential jurors were excluded based on race, the
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trial court did not err in finding that appellant failed to
establish a prima facie case of purposeful discrimination.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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