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Fields v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 28, 1994
Record No. 0321-93-1 (Va. Ct. App. Jun. 28, 1994)

Opinion

Record No. 0321-93-1

Decided: June 28, 1994

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, William F. Rutherford, Judge

Affirmed.

Michael F. Fasanaro, Jr. (Abrons, Fasanaro Sceviour, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Victor Fields (defendant) was convicted by a jury of murder and the use of a firearm in the commission of a felony. On appeal, he complains (1) that the prosecution unconstitutionally exercised its peremptory challenges to remove black venirepersons, and (2) that the trial court erred in admitting an "unrelated" firearm into evidence.

The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues on appeal.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court reaffirmed a defendant's "right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria" and denounced the peremptory exclusion of potential jurors "on account of race" as violative of the Equal Protection Clause. Id. at 85-86. Recently, in J.E.B. v. Alabama ex rel. T.B., ___ U.S. ___, ___ S. Ct. ___ (1994), the Court extended this protection to embrace "[i]ntentional discrimination" by "state actors" "on the basis of gender." Id. at ___, ___ S.Ct. at ___.

This doctrine now applies to both criminal and civil litigation, potential jurors, and all litigants. Georgia v. McCollum, ___ U.S. ___, 112 S.Ct. 2348 (1992); see generally Powers v. Ohio, 499 U.S. 400 (1991); Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991).

Gender discrimination is not an issue in this appeal.

The Court outlined the procedures appropriate to a Batson challenge, and these protocols have often been recognized and applied by the appellate courts of this Commonwealth. Recently, in James v. Commonwealth, ___ Va. ___, ___ S.E.2d ___ (1994), the Virginia Supreme Court once again reviewed the lesson of Batson.

The defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race. If this showing is made, the burden shifts to the prosecutor to articulate a racially neutral explanation for striking the jurors in question. If the court determines that the proffered reasons are race- neutral, the defendant should be afforded an opportunity to show why the reasons, even though facially . . . neutral, are merely pretextual and that the challenged strikes were based on race. But, ultimately, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Id. at ___, ___ S.E.2d at ___(citations omitted).

Trial judges, in assessing a Batson motion and related explanation and evidence, "enjoy the unique 'opportunity' of personal observation and familiarity with 'the general circumstances of the case' " and are aided by an entire "array of sensory perceptions" available from the proceedings. Barksdale v. Commonwealth, ___ Va. App. ___ ___, 438 S.E.2d 761, 764 (1993). Thus, the court's decision disposing of the 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) (citation omitted).

Here, following defendant's Batson claim, the court required the Commonwealth to explain its peremptory strikes. The prosecutor related his "understanding" that defendant, pursuant to a "notice of an alibi defense" to the Commonwealth, intended to call as a witness "the young lady with whom he was living." The prosecutor expressed concern that jurors "in the same age range as the alibi witness" "might . . . closely relate in some fashion" with her and noted that Davis and Evans, the two black female panel members in issue, "[fell] in that age range." In response to the court's inquiry, "Would you have exercised the same challenge if it had been a white female of the same age," the prosecutor noted, "I did. Jennifer Zulko." The court ruled that the strikes were "not in violation of Batson," and defendant simply excepted without further argument or evidence.

The Commonwealth did not challenge the court's implicit determination that a prima facie case of purposeful discrimination had then been established by defendant.

The prosecutor's explanation for the peremptory strikes of Davis and Evans was facially race-neutral. See Chambliss v. Commonwealth, 9 Va. App. 267, 386 S.E.2d 478 (1989); Barksdale, ___ Va. App. ___ 438 S.E.2d 761 (where age was approved as a racially neutral reason for peremptory strikes). The record clearly reflects that the prosecutor's avowal for the strikes had been equally applied to the entire panel, irrespective of race, and this circumstance was uncontroverted by defendant. The Commonwealth, therefore, rebutted a prima facie case of purposeful discrimination with neutral explanations, and defendant failed to establish that the reasons were pretextual or otherwise indicative of purposeful discrimination. See James v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1994); United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), cert. denied, 112 S.Ct. 71; see also Broady, 16 Va. App. at 285, 429 S.E.2d at 471 (where the defendant established that the "facially non-racial reasons [had been] applied systematically to blacks but not whites").

Defendant next argues that the court erred in receiving a "shotgun" into evidence which, though not the firearm used in the subject offenses, was found near defendant at the time of his arrest. The record discloses that defendant "objected" to testimonial references to the shotgun and its admission into evidence, but this issue was apparently developed and argued to the trial court in a side bar conference which was not transcribed. Without a sufficient record of these objections and related arguments and rulings, we are unable to review properly the actions of the trial court. Rule 5A:18; see also Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987). Moreover, a review of this issue to promote the ends of justice is similarly precluded because the record fails to establish a "miscarriage of justice." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987); Rule 5A:18.

Accordingly, we affirm the convictions.

Affirmed.


It is a fundamental principle that "[i]rrelevant evidence is never admissible." Hogan v. Commonwealth, 5 Va. App. 36, 43, 360 S.E.2d 371, 375 (1987).

Evidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy. For evidence to be admissible it must relate and be confined to the matters in issue and tend to prove an offense or be pertinent thereto. Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967) (citations omitted).

The handgun that the assailant used to shoot the victim was never recovered by the police. The shotgun that the trial judge permitted the Commonwealth to admit into evidence over the defendant's objection had no connection to the murder offense for which the defendant was being tried. Whatever probative value the shotgun might have had was slight and was greatly outweighed by its highly prejudicial effect. Admission of the shotgun was reversible error.

The record clearly shows that Fields timely objected to the admission of the shotgun. Because the side bar conference in which the objection initially was stated out of the presence of the jury was not recorded, the majority holds that the grounds for the objection were not clearly stated for the record. In the absence of any showing of relevance of the shotgun to the charge, the nature of the objection is patently obvious. Moreover, on no less than five separate occasions in the transcript, Fields objected to the admission of the shotgun. Each time, the trial judge overruled the objection. Fields does not posit an arcane or unlikely ground for his objection. Given the facts of this case, an objection that the shotgun was irrelevant evidence is elementary. Because of the significant prejudice in admitting a shotgun that bore no relationship to the elements of the offense, I would reverse the conviction and remand for a new trial.

I dissent.


Summaries of

Fields v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 28, 1994
Record No. 0321-93-1 (Va. Ct. App. Jun. 28, 1994)
Case details for

Fields v. Commonwealth

Case Details

Full title:VICTOR FIELDS v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Jun 28, 1994

Citations

Record No. 0321-93-1 (Va. Ct. App. Jun. 28, 1994)