Opinion
Record No. 1580-93-2
Decided: January 3, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, D. W. Murphey, Judge Designate
A Rehearing En Banc was granted for this case on March 6, 1995.
William T. Linka (Boatwright Linka, on brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, we consider whether the trial judge erred in finding that the Commonwealth's Attorney satisfied the requirements of Batson v. Kentucky, 476 U.S. 79 (1986), when he used his peremptory strikes to exclude four African-Americans from the jury panel. Finding no error, we affirm.
Robert Branch was indicted for the crimes of rape, sodomy, robbery, and abduction with the intent to defile. He was convicted of sodomy, robbery, and abduction with the intent to defile; he was found not guilty of the rape. The victim is a Caucasian, minor female. Branch is a thirty-six year old African-American male.
During jury selection, the prosecutor used his peremptory strikes to remove three African-American males and one African-American female from the jury pool. Upon defense counsel's Batson motion, the trial judge asked the prosecutor to explain his reasons for striking these particular people. The prosecutor responded that he struck jurors Melton and Doswell because they had prior criminal records and that he struck jurors McCain and Jones because they appeared tired and disinterested. Defense counsel also struck a juror, Elizabeth Keane, because she appeared tired.
Defense counsel challenged the Commonwealth's reasons asserting that Doswell's conviction occurred twenty-seven years ago, was for reckless driving, and resulted in a $25 fine. He also asserted that the same prosecutor struck two African-American jurors in a prior proceeding involving Branch and another victim from the same incident by stating that they appeared tired. The trial judge denied the motion to dismiss the jury.
Batson v. Kentucky, 476 U.S. 79 (1986), sets out the standard for determining whether peremptory strikes in jury selection are racially motivated. Once the trial judge determines that defendant has made a prima facie case of purposeful discrimination, "the burden shifts to the [prosecutor] to explain adequately the racial exclusion." Id. at 94. We will reverse the trial court's findings on appeal only if they are clearly erroneous. Wright v. Commonwealth, 245 Va. 177, 186, 427 S.E.2d 379, 386 (1993).
From a review of the record, we hold that the trial judge's denial of defense counsel's motion was not clearly erroneous. Striking jurors because they have criminal records is an objective, race-neutral reason. See Langhorne v. Commonwealth, 13 Va. App. 97, 107, 409 S.E.2d 476, 482 (1991). Moreover, striking jurors because they exhibited signs of fatigue and boredom is also an adequate, race-neutral explanation. The prosecutor articulated objective factors which supported his reason for striking the jurors.
This case ultimately turns upon the trial judge's finding of the prosecutor's credibility. As a reviewing court, we must give great deference to those findings. See Hernandez v. New York, 500 U.S. 352, 364 (1991); Winfield v. Commonwealth, 14 Va. App. 1049, 1050, 421 S.E.2d 468, 469 (1992). No evidence in the record proved that the prosecutor's assertions that the potential jurors appeared tired and disinterested were not true. Accordingly, we find no abuse of discretion, and we affirm the trial court's decision.
Affirmed.
I dissent because the prosecutor does not overcome a prima facie case of discriminatory use of peremptory challenges by giving a reason unrelated to the case, Batson v. Kentucky, 476 U.S. 79, 91 (1986), or "by stating a facially neutral, but wholly subjective, reason for using those challenges when the record contains nothing else to support the stated reason." State v. Cruz, 857 P.2d 1249, 1251 (1993). "It [is] impermissible for a prosecutor to use his challenges to exclude blacks from the jury 'for reasons wholly unrelated to the outcome of the particular case on trial' or to deny to blacks 'the same right and opportunity to participate in the administration of justice enjoyed by the white population.' " Batson, 476 U.S. at 91 (quoting Swain v. Alabama, 380 U.S. 202, 224 (1965)).
The trial judge cannot merely accept at face value the reasons proffered but must independently evaluate those reasons as he would any disputed fact. Rubber stamp approval of all nonracial explanations will not satisfy the command of Batson. The record must contain findings by the trial judge, not just a conclusion, in order to facilitate both the initial inquiry and appellate review.
Jackson v. Commonwealth, 8 Va. App. 176, 185, 380 S.E.2d 1, 5 (1989) (citations omitted).
The prosecutor's explanation that he struck Doswell because of a traffic offense that occurred twenty-seven years ago does not present a legitimate reason that bears any relationship to the case. The prosecutor questioned no jurors concerning their traffic violations or criminal offense records. The twenty-seven year old traffic violation simply became a fact that could be used to justify exclusion. The prosecutor's explanation is so facially invalid that it lacks substance. The trial judge erred when he failed to make further inquiry.
The prosecutor gave the following as reasons for striking jurors McCain and Jones:
McCain . . . was sitting up there, he was tired, he was disinterested, his hand was on his cheek the whole time. Sometimes he was covering up one eye. It didn't appear to me he was either listening. I would not like a disinterested juror on jury as well.
* * * * * * *
Jones . . . again, Your Honor, looked tired. Just before I struck him, he was, like, with his eyes closed, and he was putting his hands over his face making motions to me [that] indicate[d] that he's going to be too tired to listen to the jury. After he was struck when he was standing up here, he was holding one leg up against the side, his hand was up on his cheek and stuff holding himself up.
Both potential jurors were said by the prosecutor to be exhibiting the very same characteristics — having their hand on their cheek and using their hands to cover their eye or face. Moreover, the explanations that they looked "tired" and "disinterested" were the very same subjective reasons that he had given for striking African-American jurors in a previous trial against the same defendant but with another victim. Again, the trial judge failed to make further inquiry as to these allegations.
In accepting the prosecutor's purely subjective reasons for excluding these potential jurors without making any factual findings to support the defense's motion, the trial judge ignored the import of Batson in a fashion that "permits 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)). The trial judge made no factual findings in this case. The trial judge asked no questions of the prosecutor, did not remark upon his own observance of the matters, and made no comment to indicate that the prosecutor's observations of the jurors were confirmed by his observations. Although the trial judge was informed that the same prosecutor had used the same subjective belief to exclude African-Americans from the jury in Branch's previous trial, the trial judge without any inquiry accepted as an explanation a subjective belief that formed the foundation for these exclusions.
Subjective judgments based on jurors' demeanors that result in racial exclusions often are based on "elusive, intangible, and easily contrived explanations [that must be scrutinized] with a healthy skepticism." Daniels v. State, 768 S.W.2d 314, 317 (Tex.App. 1988). When the record contains no support for the prosecutor's subjective reasons that result in racial exclusions, the prosecutor's "explanation, taken alone," does not rise to the standard of a "legitimate reason." Smith v. State, 790 S.W.2d 794, 796 (Tex.App. 1990). See also U.S. v. Horsely, 864 F.2d 1543, 1546 (11th Cir. 1989) (holding that explanation that "I just got a feeling about him," is legally insufficient to rebut a prima facie case of purposeful discrimination in a Batson challenge).
" Batson requires the trial judge to evaluate the credibility of the asserted reasons based upon the totality of the circumstances of the case, as reflected in the record." Jackson, 8 Va. App. at 185, 380 S.E.2d at 5. The prosecutor arrived at these racial exclusions without any voir dire of these persons. "Obviously, if we hold that a party's assertion of a wholly subjective impression of a juror's perceived qualities, without more, overcomes a prima facie showing of discrimination, Batson could easily and quickly become a dead letter." Cruz, 857 P.2d at 1253. The prosecutor's wholly subjective, vague, and nebulous explanations were insufficient to rebut the prima facie case.
For these reasons, I would hold that Branch met his burden of proving purposeful discrimination and that the prosecutor's explanations failed to rebut Branch's prima facie case. Accordingly, I would reverse Branch's conviction and remand the case for a new trial with a proper jury. I dissent.