Floyd White v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued by teleconference
FLOYD WHITE, JR.
MEMORANDUM OPINION * BY
v. Record No. 0292-01-2 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Floyd White, Jr. was convicted in a jury trial of: (1)
aggravated malicious wounding, in violation of Code § 18.2-51.2;
(2) malicious wounding, in violation of Code § 18.2-51; (3)
possession of a firearm by a convicted felon, in violation of Code
§ 18.2-308.2; and (4) feloniously discharging a firearm in public,
in violation of Code § 18.2-280. On appeal, he contends that the
trial court erred: (1) in disallowing counsel's examination of
prospective jurors as to their impartiality; (2) in denying his
Batson motion as untimely made; (3) in unfairly prejudicing him by
erroneous evidentiary rulings; (4) in giving a jury instruction
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that was unsupported by the evidence; (5) in allowing improper
argument by the Commonwealth; and (6) in refusing to declare a
mistrial. White also contends that the Commonwealth failed to
prove beyond a reasonable doubt that he committed the offenses.
Because the trial court erred in refusing to conduct a Batson
review following timely motion by White, we reverse and remand for
a new trial if the Commonwealth be so advised.
I. BACKGROUND
On June 3, 1999, White, a convicted felon, purchased a .380
caliber pistol with the assistance of his girlfriend, Artisha
Mayo. Later that day, he, Mayo, and Jacoby Anderson drove
around the City of Richmond in his Dodge minivan. While driving
north on Chamberlayne Avenue, White saw Derrick Smith in the
passenger seat of a car that was passing in the opposite
direction. White made a U-turn and began to follow the other
vehicle toward downtown Richmond.
Smith and the driver of the other car, Warren Nightingale,
stopped at a traffic light at the intersection of Broad and
First Streets. Approaching the intersection, White instructed
Anderson to switch places with Mayo, who was sitting in the
front passenger seat, and to get the gun. Anderson loaded the
.380 caliber pistol and grabbed his own .38 caliber pistol.
When they arrived at the intersection, White put the
minivan in park and Anderson handed him the .380 pistol. White
then leaned the gun on the windowsill of the driver's door and
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told Anderson to shoot. White and Anderson fired shots at
Smith. Both Smith and Nightingale were hit. As a result of the
shooting, Smith has been unable to walk and is confined to a
wheelchair.
Evidence of the foregoing events sufficiently supports
White's convictions.
II. ANALYSIS
On appeal White assigns error on seven grounds. Because we
find the evidence sufficient but reverse his convictions and
remand the case back to the trial court for refusing to conduct
a Batson review, all the other issues are moot. However, we
direct the trial court and counsel's attention to Code
§ 8.01-358 and Rule 3A:14.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court held that the Equal Protection Clause prohibited the
prosecutor's exercise of peremptory jury challenges for the
purpose of excluding potential jurors on account of race. The
Court stated:
Although a prosecutor ordinarily is entitled
to exercise permitted peremptory challenges
"for any reason at all, as long as that
reason is related to his view concerning the
outcome" of the case to be tried, United
States v. Robinson, 421 F. Supp. 467, 473
(Conn. 1976), mandamus granted sub nom.
United States v. Newman, 549 F.2d 240 (2d
Cir. 1977), the Equal Protection Clause
forbids the prosecutor to challenge
potential jurors solely on account of their
race or on the assumption that black jurors
as a group will be unable impartially to
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consider the State's case against a black
defendant.
Id. at 89. In arriving at its decision, the Supreme Court
declined "to formulate particular procedures to be followed upon
a defendant's timely objection to a prosecutor's challenges."
Id. at 99. Instead, it left to the lower courts the adoption of
timeliness rules. 1
In Virginia, "a party must raise a Batson challenge prior
to the time the jury is sworn and the remaining venirepersons
are excused." Lewis v. Commonwealth, 25 Va. App. 745, 748, 492
S.E.2d 492, 493 (1997). However, "a Batson motion is not waived
by the defendant's failure to raise it prior to swearing of the
jury. Rather, Code § 8.01-352 allows a Batson motion to be made
after the jury is sworn, but only with leave of the court." Id.
at 749, 492 S.E.2d at 493 (citation omitted).
The record shows that after peremptory strikes were made,
White challenged two of the Commonwealth's peremptory strikes as
being impermissibly motivated by racial considerations, in
violation of Batson. The following dialogue occurred:
MR. HENDERSON [White's Attorney]: May we
approach?
THE COURT: Yes.
1
The Court stated, "[i]n light of the variety of jury
selection practices in our state and federal trial courts, we
make no attempt to instruct these courts how best to implement
our holding today." Batson, 476 U.S. at 99 n.24.
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MR. HENDERSON: Motion. I would like to at
this time raise a Batson on the objection to
two of the strikes that Ms. Reiner made
. . . .
And I state to the court that based on their
responses that they made, there was no
reason stated which would be a valid reason
for the striking of them. They were struck
for no other reason than they were black.
THE COURT: Motion comes after the strikes
are made and under the case law it is too
late for the Court to rule. Overruled and
note your exception.
This ruling was error. Following this exchange, the jury panel
was sworn and the stricken veniremen were excused.
While the evidence at trial sufficiently supports White's
convictions, the trial court erred in refusing to conduct a
Batson review upon White's timely motion. Therefore, we reverse
the convictions and remand the case for a new trial if the
Commonwealth be so advised.
Reversed and remanded.
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