Livingston Pritchett, III v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Petty
Argued at Salem, Virginia
LIVINGSTON PRITCHETT, III
MEMORANDUM OPINION * BY
v. Record No. 3132-06-3 JUDGE JAMES W. HALEY, JR.
OCTOBER 14, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Brian T. Scheid (Warren & Scheid, P.C., on brief), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General; Craig W. Stallard, Assistant Attorney
General, on brief), for appellee.
Livingston Pritchett, III (“Pritchett”) appeals his convictions for first-degree murder in
violation of Code § 18.2-32, robbery in violation of Code § 18.2-58, and two additional
convictions for the use of a firearm in the commission of a felony in violation of Code
§ 18.2-53.1. This case presents two questions for resolution: 1) whether the circuit court erred
in denying Pritchett’s motion for a change of venue because of prejudicial pretrial publicity and
2) whether the circuit court erred in rejecting Pritchett’s challenge, pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986), to the Commonwealth’s peremptory strike of potential
African-American juror Dionne Harrison during the selection of the jury. Finding that the trial
court did not err in deciding either of these questions, we affirm Pritchett’s convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
FACTS
Pritchett was originally charged in an indictment for capital murder on October 14, 1997.
This indictment alleged that he killed Estel Singleton in the course of a robbery on April 30,
1997. A jury convicted him of murder in the first degree, but our Supreme Court remanded his
case for a new trial for reasons unrelated to the issues in this case. Pritchett v. Commonwealth,
263 Va. 182, 557 S.E.2d 205 (2002). During Pritchett’s second trial, which ended in a hung jury,
Josiah Showalter represented the Commonwealth. During the interval between Pritchett’s
second and third trials, Mr. Showalter was appointed a circuit court judge for the 27th Judicial
Circuit. On April 1, 2006, an article appeared in the Current Section of the Roanoke Times
newspaper that included an interview with the newly appointed Judge Showalter. The article is
composed of thirty-nine paragraphs, and only one of them mentions Pritchett. The thirty-first
paragraph reads: “As prosecutor, Showalter said one of his few regrets is not winning the case of
Livingston “Bud” Pritchett III, who is charged with killing a man at an Ironto rest stop in 1997.
The September trial ended in a mistrial.”
Pritchett filed a pretrial motion for a change of venue, arguing that Judge Showalter’s
comment while Pritchett’s case was still pending prevented him from receiving a fair trial in
Montgomery County. The Roanoke Times article on Judge Showalter was the only piece of
pretrial publicity Pritchett mentioned in support of his motion for a change of venue. Judge
Grubbs stated that Pritchett’s motion would remain under advisement as the parties attempted to
seat a jury.
On June 2, 2006, Pritchett appeared in Montgomery County Circuit Court for trial.
Seating a jury took five hours and twenty-five minutes. The trial court examined thirty-six
potential jurors to determine their qualifications. The jurors also answered the questions of
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counsel. Thirteen were excused for cause. Defense counsel asked each of the potential jurors
about the Roanoke Times article. Four potential jurors remembered reading the article or
hearing about the article from someone else. Of these, only one remembered the paragraph
mentioning Pritchett’s earlier mistrial. All of the others told defense counsel that they were
unaware of the article. Of the twenty-three jurors who survived the challenges for cause, each of
the parties removed six using peremptory challenges, leaving twelve jurors to decide the case
and one alternate. None of the jurors who had read or were aware of the article remained on the
jury panel that decided Pritchett’s case.
Pritchett, an African-American, made a Batson challenge to the Commonwealth’s
peremptory strike of Dionne Harrison, an African-American juror. In support of his Batson
challenge, Pritchett argued that the Commonwealth’s decision to use a peremptory challenge on
the only African-American on the panel raised an inference of racial discrimination. The
attorney for the Commonwealth contended that Pritchett was mistaken about the number of
African-Americans on the venire, noting that one African-American remained on the jury even
after Ms. Harrison was excused. He also suggested two race-neutral reasons for striking
Ms. Harrison. First, Ms. Harrison had testified that her cousin had been murdered and that the
murder involved a handgun, like the murder of the alleged victim in Pritchett’s trial. He
mentioned that he suspected that this might affect her impartiality. Second, Ms. Harrison was an
employee of a program called Head Start, which has among its goals assisting mentally-
challenged children. The Commonwealth suspected Ms. Harrison’s work with Head Start might
make her more sympathetic to the defendant, who was described in voir dire as mildly mentally
retarded. The trial court ruled as follows:
All right. Gentlemen, in response to your motion, Mr. Scheid, I’m
not convinced that a prima facie case of purposeful discrimination
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has been put forward. However, I have considered the reasons put
forward by the Commonwealth as to why Ms. Harrison was struck.
As I understand those reasons, number, one, the Commonwealth is
of the belief that another member of this jury, based upon physical
appearance, is African-American; number two, Ms. Harrison’s
personal experience in dealing with the death of her cousin, who
was a murder victim, the instrument being a handgun as will be
alleged in this case, and the impact of that experience upon her
suitability to serve on this jury; and number three, Ms. Harrison’s
experience as an employee of Head Start which deals with
challenged children, and it has been eluded [sic] to in voir dire that
Ms. [sic] Pritchett is mildly retarded, and the impact that her
employment may have on her suitability to sit on this jury. In
conclusion, I find that the Commonwealth’s strikes are race neutral
and I find no purposeful discrimination.
To complete the record, the court examined the juror whose race was disputed by the lawyers
after the jury was sworn and the trial began.
(The following discussion between Judge Grubbs and Juror, Karisa
Moore, took place in Chambers, with the Defendant, Livingston
Pritchett, III, defense counsel, Mr. Scheid, and Commonwealth
Attorney, Mr. Finch present:)
JUDGE GRUBBS: There has been an issue raised in this case
about race and because of that, we need to know your race, if you
would be kind enough to tell us.
JUROR: I am biracial. Uh –
JUDGE GRUBBS: Could you tell us?
JUROR: Black. I mean, I know that the government doesn’t allow
me to choose. I just call myself biracial but if I have to choose,
then in choosing, I choose black.
JUDGE GRUBBS: All right. I appreciate your telling us that.
There are some issues involved that it was absolutely necessary to
ask and I appreciate that. Thank you very much.
JUROR: You’re welcome.
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CHANGE OF VENUE
There is a presumption that a criminal defendant will receive a fair trial in the jurisdiction
where the offense occurred. Thomas v. Commonwealth, 263 Va. 216, 230, 559 S.E.2d 652,
659-60 (2002). “It is the burden of the defendant to overcome this presumption by
demonstrating that the feeling of prejudice on the part of the citizenry is widespread and is such
that would ‘be reasonably certain to prevent a fair trial.’” Mueller v. Commonwealth, 224 Va.
386, 398, 422 S.E.2d 380, 388 (1992) (quoting Stockton v. Commonwealth, 227 Va. 124, 137,
314 S.E.2d 371, 380 (1984)). Pritchett quotes from Thomas that “[n]ever has this Court held the
impartiality of the seated jury to be a factor in considering whether a motion for change of venue
should be granted, much less found it dispositive.” Thomas, 263 Va. at 232, 559 S.E.2d at 661.
Citing Wansley v. Commonwealth, 210 Va. 462, 468-69, 171 S.E.2d 678, 683 (1970), Pritchett
further argues that his is a case in which pretrial publicity “involves such a probability that
prejudice will result that it is deemed inherently lacking in due process.”
However, “the mere showing of extensive publicity or general knowledge of a crime or
of the accused, including his criminal record, is not enough to justify a change of venue.”
Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757, 769 (1989). Factors to consider
include the volume, accuracy, and timing of the publicity, and also whether the publicity is
temperate or inflammatory. See Thomas, 263 Va. at 233, 559 S.E.2d at 660. The ease of
impaneling a jury is another important consideration. Id.
In this case, Pritchett complains of pretrial publicity that was not extensive. The single
Roanoke Times article is the only piece of pretrial publicity in the record. Pritchett was
mentioned in only a single paragraph of the thirty-nine paragraphs in the article. The main body
of the article is chiefly a biographical sketch of Judge Showalter. While Judge Showalter did
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express regret at the outcome of Pritchett’s second trial, the article contains no apparent
inaccuracies – Pritchett was put on trial for murder and the trial did end in a mistrial. The article
does not express an opinion on whether Pritchett was guilty of the killing, nor did it call for him
to be punished. Moreover, no one who served on Pritchett’s jury read, or had heard of, the
article. It is, therefore, difficult to understand how this article could have prevented Pritchett
from receiving a fair trial in Montgomery County.
Pritchett’s reliance on Thomas and Wansley is misplaced. It is true that our Supreme
Court stated, in Thomas, that the impartiality of the seated jury was not dispositive in resolving a
defendant’s motion for a change of venue. Id. at 232, 559 S.E.2d at 661. In Thomas, voir dire
took five days. Moreover, “all of the jurors ultimately seated were aware of the pretrial publicity
and knew about the case.” Id. at 229, 559 S.E.2d at 659. When the defense moved for a change
of venue after voir dire, “[t]he trial court denied the motion, stating that ‘the law seems to
indicate that what the court should do in situations like this is attempt to seat a jury, and if a jury
can be seated or chosen, then that answers the question.’” Id. at 230, 559 S.E.2d at 659. “While
this Court has included statements regarding the impartiality of the jury actually seated when
discussing the relative ease of seating a jury, it is the ease of seating the jury that is the relevant
factor, not the ultimate result of that process.” Id. at 232, 559 S.E.2d at 661.
Accordingly, we conclude that the trial court erred, as a matter of
law, by failing to apply the proper test and failing to consider the
necessary factors when making its decision to deny Thomas’
motion to change venue. Consequently, because the trial court
used an improper legal standard in exercising its discretionary
function, we are unable to apply the appellate review standard of
abuse of discretion. In light of this holding, the judgment of
conviction must be vacated.
Id. at 233, 559 S.E.2d at 661. Thomas is distinguishable from this case because, unlike the
record in Thomas, the record here does not suggest that the trial judge applied an improper legal
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standard in his ruling on Pritchett’s motion for a change of venue. “Absent clear evidence to the
contrary in the record, the judgment of a trial court comes to us on appeal with a presumption
that the law was correctly applied to the facts.” Yarborough v. Commonwealth, 217 Va. 971,
978, 234 S.E.2d 286, 291 (1977). The trial judge’s statement in Thomas was “clear evidence to
the contrary” that made deference to this presumption inappropriate in that case. But nothing
like that statement appears in the record before us.
Wansley, 210 Va. 462, 171 S.E.2d 678, involved extensive and sometimes intemperate
pretrial publicity. As in this case, the defendant was tried and convicted; his conviction was
reversed on appeal; and his second trial ended in a hung jury. Id. at 463 n.1, 171 S.E.2d at 679
n.1. “[U]p to and including March 1967, the month of Wansley’s third trial, the Lynchburg
News and Daily Advance made continual references to [defense counsel]. And they seldom, if
ever, mentioned [defense counsel] without adding substantially these words: ‘who has been
linked on numerous occasions with Communist-front organizations and efforts.’” Id. at 464-65,
171 S.E.2d at 680. Newspaper accounts also mentioned the defendant’s confession and
repeatedly referred to the defendant’s race and to the race of his alleged victim. Id. After
extensive voir dire, eleven perspective jurors were struck for cause because they believed the
defendant was guilty based on what they had read in the newspaper articles and one was excused
because he respected the Commonwealth’s attorney more than the defense attorney because of
the newspaper’s suggestions that defense counsel was a communist. Id. at 465, 171 S.E.2d at
681. Neverthelesss, our Supreme Court refused to reverse the trial judge’s denial of the
defendant’s pretrial motion for a change of venue.
Every juror challenged for cause by Wansley’s counsel on a
ground related to pretrial publicity was excused (see n. 8, supra);
in addition petitioner was given four peremptory challenges, all of
which were exercised. Although the persons thus selected for the
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trial jury had been exposed to some of the pretrial publicity related
in this opinion, each indicated that he was not biased, that he had
formed no opinion as to Wansley’s guilt which would require
evidence to remove, and that he would enter the trial with an open
mind disregarding anything he had read on the case.
Id. at 468, 171 S.E.2d at 683. Pritchett cites Wansley briefly, and only for our Supreme Court’s
recognition that there may be circumstances in which pretrial publicity creates such a probability
of prejudice that “the defendant is not required to establish identifiable prejudice.” Id. at 469,
171 S.E.2d at 683. What Pritchett fails to do is to explain how the Roanoke Times article in his
case could pose such a probability of prejudice when the more extensive and intemperate pretrial
publicity in Wansley did not.
In Wansley, eleven potential jurors were struck for cause because they thought the
defendant was guilty because of pretrial newspaper coverage. In this case, only one of the
thirty-six potential jurors, Patricia Smith, was even aware that the article mentioned Pritchett;
and she was excused for cause. Despite diligent voir dire by defense counsel, nothing in the
record suggests that the article created a probability that Pritchett could not receive a fair trial in
Montgomery County. Everyone who served on Pritchett’s jury told the court that they had no
bias or prejudice against either of the parties. All of them indicated that they understood that
Pritchett was presumed innocent and that the burden of proving his guilt was on the
Commonwealth.
The governing cases hold that even extensive publicity or general knowledge of the crime
is not always enough for a change of venue. Buchanan, 238 Va. at 407, 384 S.E.2d at 769.
Because the pretrial publicity in this case was not extensive and did not create a general
knowledge of the crime, we must conclude that Pritchett did not overcome the presumption that
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he could receive a fair trial in the jurisdiction where the crime occurred. Accordingly, the trial
court did not err in denying his request for a change of venue.
BATSON CHALLENGE
Exclusion of a potential juror by peremptory challenge solely because of the juror’s race
is a violation of the Equal Protection Clause of the Fourteenth Amendment. Jackson v.
Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). “When a defendant raises a
challenge based on Batson, he must make a prima facie showing that the peremptory strike was
made on racial grounds. At that point, the burden shifts to the prosecution to produce
race-neutral explanations for striking the juror.” Id. at 436, 587 S.E.2d at 542. The third and last
step of the Batson inquiry is for the court to determine whether the defendant has carried his
burden of purposeful discrimination. Rice v. Collins, 546 U.S. 333, 338 (2006) (citing Batson,
476 U.S. at 98).
A finding that the defendant failed to establish a prima facie case of racial discrimination
will not be reversed unless it is clearly erroneous. Lightfoot v. Commonwealth, 50 Va. App.
723, 728, 653 S.E.2d 615, 618 (2007).
The trial court has a pivotal role in evaluating Batson claims. Step
three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, and “the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who exercises
the challenge.” In addition, race-neutral reasons for peremptory
challenges often invoke a juror’s demeanor (e.g., nervousness,
inattention), making the trial court’s first-hand observations of
even greater importance. In this situation, the trial court must
evaluate not only whether the prosecutor’s demeanor belies a
discriminatory intent, but also whether the juror’s demeanor can
credibly be said to have exhibited the basis for the strike attributed
to the juror by the prosecutor. We have recognized that these
questions of credibility and demeanor lie “peculiarly within a trial
judge’s province,” and we have stated that “ in the absence of
exceptional circumstances, we would defer to [the trial court].
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Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008). “The fact that the prosecution has excluded
African Americans by using peremptory strikes does not itself establish such a prima facie case
under Batson.” Yarbrough v. Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 310 (2001).
However, the mere inclusion of a person of the defendant’s race in the jury ultimately selected
does not preclude a Batson challenge. See Jackson v. Commonwealth, 8 Va. App. 176, 183, 380
S.E.2d 1, 5 (1989).
The record establishes that Mr. Pritchett is a member of a cognizable racial group. The
trial court’s treatment of the second step of the Batson procedure is less clear. While the trial
court expressed doubt as to whether Pritchett had made a prima facie showing of discrimination,
he examined and ruled upon the ostensibly race-neutral reasons offered by the attorney for the
Commonwealth. “Once a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of intentional discrimination, the
preliminary issue of whether the defendant had made a prima facie showing becomes moot.”
Hernandez v. New York, 500 U.S. 352, 359 (1991); Barksdale v. Commonwealth, 17 Va. App.
456, 459, 438 S.E.2d 761, 763 (1993) (en banc). In this case, the trial court made no clear ruling
on whether Pritchett had established a prima facie case of discrimination, and instead denied
Pritchett’s Batson challenge based on its ruling that the prosecutor’s reasons for excusing
Ms. Harrison were race-neutral. Thus, we assume, without deciding, that Pritchett established a
prima facie case and proceed to review the trial court’s ruling on the reasons offered by the
prosecutor for using a peremptory challenge on Ms. Harrison. See Yarbrough, 262 Va. at 395,
551 S.E.2d at 310 (assuming without deciding that the defendant established a prima facie
showing of discrimination in reviewing the trial court’s ultimate Batson decision). Because we
assume without deciding that Pritchett established a prima facie case for the purposes of this
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decision, we do not decide whether the “biracial” juror examined by the court was an
African-American for the purposes of the Batson inquiry.
One of the reasons mentioned by the prosecutor for striking Ms. Harrison was his
concern that her work for Head Start might make her overly sympathetic to a defendant who was
described by his lawyer in voir dire as having mild mental retardation. Our Supreme Court
discussed a similar reason for using a peremptory challenge in Yarbrough:
In response, the Commonwealth contends that the facts do not
raise an inference that the prosecutor struck Woodson from the
jury panel because of his race. The Commonwealth notes the
prosecutor’s explanation that Woodson exhibited an unusual
interest in the defendant and that as a teacher, Woodson may have
been sympathetic to a 19-year-old defendant. The Commonwealth
contends that such concerns about a potential juror’s demeanor and
interest in a defendant provide a race neutral explanation for
exercising a peremptory strike.
Id. at 393-94, 551 S.E.2d at 309. “Assuming, without deciding, that the defendant established a
prima facie case of purposeful discrimination under Batson, we hold that the record supports the
trial court’s conclusion that Woodson was not struck from the jury panel because of his race.”
Id. at 395, 551 S.E.2d at 310. As in Yarbrough, the prosecutor in this case asserted that he
exercised a peremptory strike because of his belief that Ms. Harrison’s occupation made it more
likely that she would be sympathetic to the defense.
Pritchett argues that the Commonwealth did not make a persuasive case that
Ms. Harrison’s work for Head Start was not a pretext because the prosecutor did not ask
Ms. Harrison any questions about her employment to confirm or dispel his suspicions that she
might be sympathetic to the defense. But we are reluctant to conclude that a lack of voir dire
regarding Ms. Harrison’s occupation necessarily means that the prosecutor’s reason for his use of
a peremptory strike was a pretext, especially given the fact that Yarbrough does not mention any
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voir dire regarding the potential juror’s occupation as a teacher. Nor do we think the
prosecutor’s lack of voir dire on the subject is enough to overcome the deference we owe to the
trial court’s ruling on the prosecutor’s credibility. See Snyder, 128 S. Ct. at 1208. We hold the
trial court did not err in its finding that the reason for the prosecutor’s peremptory challenge was
race-neutral, and we affirm Pritchett’s convictions.
Affirmed.
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