Donna Blanton v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Richmond, Virginia
DONNA L. BLANTON
MEMORANDUM OPINION* BY
v. Record No. 1955-05-2 JUDGE SAM W. COLEMAN III
APRIL 17, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Horace A. Revercomb, III, Judge
Mark A. Murphy (Ramon E. Chalkley, III; Murphy & Strickland, on
brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Robert
F. McDonnell, Attorney General, on brief), for appellee.
Appellant, Donna L. Blanton, was convicted in a jury trial of first-degree murder and use
of a firearm in the commission of a felony. On appeal, she contends the trial court erred by:
(1) permitting the Commonwealth to use all of its peremptory strikes against five white females
without supplying a gender-neutral reason; (2) refusing to strike Juror 12 due to his relationship
with the Commonwealth’s Attorney; and (3) refusing to grant Instruction Numbers 13, 14, and
15 regarding motive. We hold that the Commonwealth’s peremptory strikes were gender-based,
and therefore, improper. Accordingly, we reverse the convictions of the trial court and remand
the case for a new trial. Our decision renders moot the question regarding the trial court’s ruling
with respect to Juror 12. We affirm the trial court’s decision regarding appellant’s proposed jury
instructions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BATSON
The Commonwealth used all five of its peremptory strikes to eliminate white females
ranging in age from forty to sixty-seven. Appellant made a Batson motion, objecting that the
strikes were impermissibly based on the jurors’ gender and race, and the trial court asked for the
Commonwealth’s response. The Commonwealth offered the following explanation:
Your Honor, I’m familiar with Batson and the Commonwealth’s
position – The Commonwealth will state for the record that the
striking of the five females was not racially motivated. If you look
at the age group of the females, and I’m familiar with the age
group of – age of Ms. Blanton, and it was based primarily on
whether or not they would be more favorable in the – in their
deliberations towards the Commonwealth’s position than the
defense position. It was not racially motivated, you know, in terms
of the strike. The Court is aware that in this case both the victim
and the defendant are of the same race, both of them are white
male and white female.
(Emphasis added.)
Appellant reiterated that her objection was based on gender as well as race. When the
trial judge asked the Commonwealth’s Attorney if he would like to comment on the gender
aspect of the motion, the Commonwealth declined.
The trial court denied the Batson motion on both grounds, and ruled as follows:
First of all, the Court has to consider whether or not there’s a prima
facie showing in order for the burden to shift. In this case we have
a situation where the decedent and the defendant are of the same
race, as are the members of the panel that the Commonwealth’s
Attorney exercised their peremptory strikes. I’m, therefore, of the
opinion that that does not create a prima facie showing of
discrimination on the basis of race. The age, of course, is not a
factor to fit within the category of prima facie. And the
Commonwealth has given the reason that’s certainly not pretectoal
[sic] or, if there were a prima facie showing with regard to gender.
So I’m not satisfied that there is. He’s explained why it would not
be by basis of pretext but rather the reasons as is any peremptory
challenge or strike utilized. Counsel should evaluate the
prospective members of the jury to make a determination as to
whether they may be more favorable or not to their client.
Therefore, the Batson motion is overruled.
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“[A] defendant [has] the right to be tried by a jury whose members are selected pursuant
to non-discriminatory criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). The Equal
Protection Clause forbids peremptory exclusion of potential jurors solely on account of their
race, id. at 89, and gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994).
Batson articulated a three-step test by which the validity of a peremptory challenge may
be assessed:
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. The defendant may then provide reasons why the
prosecution’s explanations were pretextual and the strikes were
discriminatory regardless of the prosecution’s stated explanations.
Whether the defendant has carried his burden of proving
purposeful discrimination in the selection of the jury is then a
matter to be decided by the trial court.
Jackson v. Commonwealth, 266 Va. 423, 436, 587 S.E.2d 532, 542 (2003). J.E.B. extended the
same three-step test for assessing whether peremptory challenges comported with Equal
Protection Clause protections to claimed gender discrimination. J.E.B. at 144-145. “A trial
court’s decision disposing of a Batson issue is accorded great deference and should not be
disturbed on appeal if supported by credible evidence.” Broady v. Commonwealth, 16 Va. App.
281, 285, 429 S.E.2d 468, 471 (1993).
Here, the trial court ruled “I’m not satisfied that there is” a prima facie showing of
purposeful gender discrimination but, even assuming there were such a showing, the
Commonwealth offered a gender-neutral explanation which was “not pretextual” and, therefore,
met its burden. We reverse on both grounds.
A. Prima Facie Showing
To establish . . . a case [of purposeful discrimination in the
selection of the jury], the [moving party] first must show that he is
a member of a cognizable racial group, . . . and that the [opposing
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party] has exercised peremptory challenges to remove from the
venire members of the [moving party’s] race. Second, the [moving
party] 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 [moving party] must show that
these facts and any other relevant circumstances raise an inference
that the [opposing party] used that practice to exclude the
veniremen from the . . . jury on account of their race. This
combination of factors in the empaneling of the . . . jury, as in the
selection of the venire, raises the necessary inference of purposeful
discrimination.
Batson, 476 U.S. at 96. These same principles apply to purposeful gender discrimination. See
J.E.B., 511 U.S. at 146.
Here, appellant presented sufficient facts to establish a prima facie case of gender
discrimination. Appellant is a woman, and the Commonwealth used all of its peremptory strikes
to remove women from the venire, resulting in a predominantly male jury. See Jackson v.
Commonwealth, 8 Va. App. 176, 184, 380 S.E.2d 1, 5 (1989) (using three out of four strikes
against blacks was disproportionate). Furthermore, the Commonwealth’s Attorney asked a
limited number of questions during voir dire. Other than Juror No. 18, who was stricken for
cause, he questioned only one other juror prior to exercising his peremptory strikes. The lack of
meaningful voir dire suggests the Commonwealth’s Attorney had little or no information upon
which to select jurors and raises the inference he reverted to striking venirepersons based on
gender. Id.; see Linsey v. Commonwealth, 17 Va. App. 47, 50, 435 S.E.2d 153, 155 (1993).
Based upon the circumstances before us, we hold that appellant made out a prima facie
case of discriminatory action by the Commonwealth and, to the extent that the trial court denied
appellant’s motion on this basis, its decision was not supported by the record.
Even though the trial court appeared to base its decision, at least in part, on the fact that
no prima facie showing of gender discrimination was made, nevertheless, the court considered
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and ruled upon whether the Commonwealth’s Attorney had established a gender-neutral reason
for his strikes. Accordingly, we necessarily review that ruling.
B. Gender-Neutral Explanation
The burden was then on the Commonwealth to rebut the presumption by offering a
gender-neutral reason for the peremptory strikes. Because the record does not support the trial
court’s ruling that the Commonwealth offered such a reason, we reverse.
“A trial court’s determination that the Commonwealth’s explanation was gender-neutral
is a finding on a matter of law and fully reviewable by this Court. Unlike a trial court’s
determination that the explanation is pretextual, a determination turning largely on the
proponent’s credibility, a trial court’s finding of ‘facial neutrality’ is not given deference on
appeal.” Riley v. Commonwealth, 21 Va. App. 330, 335, 464 S.E.2d 508, 510 (1995).
Here, the Commonwealth responded only to the racial component of appellant’s Batson
challenge. Even after appellant reiterated that her challenge was also based on gender, and the
trial court invited a response from the Commonwealth, the Commonwealth declined to offer any
explanation. The only other explanation offered by the Commonwealth’s Attorney was that the
stricken female jurors and the appellant were members of the same age group “and it was based
primarily on whether or not they would be more favorable in their deliberations towards the
Commonwealth’s position than the defense.”
The fact that the Commonwealth used age to identify which
women to strike does not overcome the constitutional infirmity.
The Commonwealth exercised its strikes based on the assumption
that the women would hold particular views because of their
gender. Such attempts to stereotype in the jury selection process
are impermissible. Lying “at the very heart of the jury system” is
the factual assumption that “jury competence is an individual
rather than a group or class matter.”
Id. at 336, 464 S.E.2d at 510 (citing J.E.B., 511 U.S. at 145 n.19).
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Accordingly, because the record does not support the trial court’s ruling that the
Commonwealth offered a gender-neutral reason which was “not pretextual,” we reverse and
remand this case to the trial court for a new trial should the Commonwealth be so advised and for
such further proceedings that are consistent with this opinion.1
INSTRUCTIONS 13, 14 AND 15
Appellant argues that the trial court erred in refusing to grant her proffered Instructions
13, 14, and 15 on circumstantial evidence. The trial court refused the instructions because they
referred to motive, noting such a reference could potentially confuse the jury because the
Commonwealth was not required to prove motive in a murder case. We address this issue
because it may arise upon remand. We affirm the trial court’s decision.
The instructions at issue stated as follows:
Instruction Number 13: Where the evidence is wholly
circumstantial, the burden is upon the Commonwealth to prove
beyond a reasonable doubt that motive, time, place, means and
conduct concur in pointing out the accused as the perpetrator of the
crime.
Instruction Number 14: In a case where the proof is
circumstantial evidence, the time, place, means, opportunity,
motive and conduct, or such of these facts as may be proved with
other facts, if any, must all concur in pointing out the accused
beyond reasonable doubt as the guilty agent.
Instruction Number 15: The circumstances of motive, time,
place, means and conduct must all concur to form an unbroken
chain which links Donna L. Blanton to the crimes beyond a
reasonable doubt.
With respect to circumstantial evidence, the trial court instructed the jury as follows:
Instruction Number 3: It is not necessary that each element of
the offense be proved by direct evidence, for an element may also
be proved by circumstantial evidence. You may convict Donna L.
Blanton on circumstantial evidence alone, or on circumstantial
1
Given our ruling, the second issue raised on appeal, the propriety of seating Juror 12, is
rendered moot.
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evidence combined with other evidence, if you believe from all the
evidence that Donna L. Blanton is guilty beyond a reasonable
doubt.
When the Commonwealth relies upon circumstantial evidence, the
circumstances proved must be consistent with guilt and
inconsistent with innocence. It is not sufficient that the
circumstances proved create a suspicion of guilt, however strong,
or even a probability of guilt.
The evidence as a whole must exclude every reasonable theory of
innocence.
The jury was also instructed in Instruction Number 10 that the Commonwealth was not required
to prove motive, but “[t]he presence or absence of a motive may be considered in arriving at your
verdict.”
The trial court’s responsibility is “‘to see that the law has been clearly stated and that the
instructions cover all the issues which the evidence fairly raises.’” Stewart v. Commonwealth,
10 Va. App. 563, 570, 394 S.E.2d 509, 513 (1990) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)), and, on appeal we review the instructions “to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly raises.”
Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted).
However, “‘[i]t is error to give an instruction, though correct as an abstract statement of law,
unless there is sufficient evidence in the record to support it.’” Pannell v. Commonwealth, 9
Va. App. 170, 172, 384 S.E.2d 344, 345 (1989) (quoting Swift v. Commonwealth, 199 Va. 420,
424, 100 S.E.2d 9, 13 (1957)).
The trial court refused Instructions 13, 14, and 15, because
the information to be given to the jury by [these instructions], as
presented, specifically including motive, would be problematic for
the jury and be a source of confusion. In light of the inclusion of
motive in the three instructions that are refused. Given that the law
is stated with regard to motive and circumstantial evidence in other
instructions, the Court finds that instructions thirteen, fourteen, and
fifteen ought to be refused, and they are.
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While the Commonwealth offered evidence of appellant’s motive, it was not required to
prove appellant’s motive to convict her of murder. See Brown v. Commonwealth, 238 Va. 213,
221, 381 S.E.2d 225, 230 (1989). Accordingly, we affirm the trial court’s decision with regard
to the jury instructions.
Affirmed, in part,
reversed, in part,
and remanded.
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