Opinion
Record No. 0952-92-3
August 3, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JOSEPH F. SPINELLA, JUDGE.
Sa'ad El-Amin (El-Amin Crawford, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Delano Fitzgerald James, appellant, appeals his conviction of possession of cocaine with intent to distribute in violation of Code § 18.2-248. He contends that the trial court incorrectly overruled his Batson challenge. We affirm and hold that the Commonwealth's reasons for striking the two African-American jurors were race-neutral and did not violate Batson v. Kentucky, 476 U.S. 79 (1986).
On July 6, 1991, Officer Arthur of the Richmond City Police Department stopped a vehicle at the intersection of Adams and Broad Streets in Richmond. Arthur determined that appellant was driving on a suspended license and he was arrested. A search incident to arrest revealed, among other things, $6,642.30 in cash in appellant's pocket and a large quantity of cocaine in the car.
During jury selection, and after the parties exercised their peremptory challenges, appellant's counsel questioned two of the peremptory strikes made by the Commonwealth of two African-American jurors, Willie Blount and William Johnson.
The Commonwealth responded to the Batson challenge by articulating its reasons for striking jurors Johnson and Blount, along with striking two white jurors. The Commonwealth's attorney observed that juror Johnson was a nursing assistant and it was his suspicion that "people involved in the medical nursing profession may be more sympathetic to the plight of other people, that's why they're involved with those types of occupations. They may be more lenient than other individuals involved. . . ."
The Commonwealth's attorney also noted that juror Johnson was "wearing a crucifix in front of his clothing and its dangling around . . . a silver crucifix about two inches in size." The Commonwealth's attorney contended that juror Johnson "has a very religious affiliation . . . [and] maybe . . . more sympathetic than these other jury members who I can't see any crucifixes dangling on them. It is a consideration whenever you ask a jury member to incarcerate anybody."
Appellant's counsel responded regarding juror Johnson, that juror Rhoads, who was not struck, is "an occupational therapy aid, which certainly sounds more sympathetic. . . ."
During the voir dire of juror Blount, the Commonwealth's attorney questioned Blount as to whether he had any relatives by the name of John. Juror Blount responded that he had a relative in the military named "Johnnie," who was between twenty-seven and thirty years of age.
When striking juror Blount, the Commonwealth's attorney stated that he had a pending murder case against an eighteen year old African-American male, John Blount, and that juror Blount indicated that he had "a relative by the name of Johnnie Blount." The Commonwealth's attorney continued by saying that "there may be no, in fact, relationship. I can't tell that . . . when faced with a choice between striking the jurors who are not bearing the same name or have relatives of that name involved in a murder, I elect to choose people [to strike] that may be associated with murder."
The Commonwealth also struck two white jurors. Juror Ivor Burchette was struck because she had a relative named Larry Burchette, who had been involved in drug charges. Juror Batten was also struck, the reason for which is not stated in the record.
[T]he equal protection clause is violated by the purposeful or deliberate exclusion of blacks from jury participation. . . . [A] defendant . . . [may] establish a prima facie case of purposeful discrimination in the selection of [the] . . . jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's own trial.
Taitano v. Commonwealth, 4 Va. App. 342, 346, 358 S.E.2d 590, 592 (1987) (citation omitted). After the defendant makes the showing of discriminatory intent, the burden shifts to the Commonwealth to explain the exclusion on race-neutral terms. The trial court then must determine if the peremptory strikes were racially motivated. Id.
Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will "largely turn on evaluation of credibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."
Winfield v. Commonwealth, 14 Va. App. 1049, 1050, 421 S.E.2d 468, 469 (1992) (en banc) (citations omitted).
Based on the explanation given by the Commonwealth, we hold that the trial court did not err in overruling the Batson challenge. Juror Johnson was excluded because of his crucifix and his employment as a nurse's aide, suggesting to the Commonwealth that Johnson might be more sympathetic to appellant.
Despite appellant's contention to the contrary, juror Rhoads, who was not stricken, was an occupational therapy aid and didnot have the same occupation as Juror Johnson. The facts do not reveal blatant discrimination, as in Broady v. Commonwealth, ___ Va. App. ___, 429 S.E.2d 468 (1993). In Broady, we held that the trial court erred in overruling the Batson challenge made by the defendant because the Commonwealth struck three African-American jurors due to proximity in age to defendant, but did not strike three white jurors in the same age group as the defendant. The facts here do not reveal such a pattern of selective striking of African-American jurors on the part of the Commonwealth.
Here, juror Johnson was struck for both his prominent crucifix and his occupation. Johnson's occupation is not so strikingly similar to juror Rhoads' occupational therapy career as to give rise to a discriminatory intent on the part of the Commonwealth in striking Johnson and not Rhoads. Juror Blount stated that he had a relative named "Johnnie" between twenty-seven and thirty years of age. The Commonwealth had a case pending for murder against a John Blount, who was eighteen years of age.
We hold that the court did not err in overruling theBatson challenge with regards to juror Blount and juror Johnson.
Accordingly, the trial court is affirmed.
Affirmed.
This case is another of a recent series of cases in which the Commonwealth's attorney has unlawfully removed African-Americans from juries. See Buck v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1993); Winfield v. Commonwealth, 14 Va. App. 1049, 421 S.E.2d 468 (1992) (en banc). This Court again sanctions the prosecutor's discriminatory conduct by deferring absolutely to the trial judge's determination of demeanor. "This Court again sends the message that in Virginia any reason will suffice to remove African-Americans from juries so long as the prosecutor does not admit on the record race as the reason and the trial judge blindly accepts the prosecutor's assertion that race was not the reason." Buck, ___ Va. App. at ___, ___ S.E.2d at ___ (Benton, J., dissenting). This case also sends the further message that pernicious conduct will be shielded if the prosecutor is astute enough to identify some inane characteristics that can be attributable only to the African-American venire members and use that as a surrogate for the strike.
Without the requirement that the race neutral explanation be "related to the particular case to be tried," a prosecutor with a less than fertile imagination can mouth reasons to exclude African-Americans from juries with precisely the type of explanation that this Court today approves. Strikes can now survive if they are used to exclude jurors who live on streets, as opposed to roads, places, or avenues; jurors who work in occupations that suggest manual labor; jurors who wear shirts that are colored; jurors who wear sport jackets; jurors who do not wear neck ties; jurors who wear dangling earrings; jurors who wear multicolored skirts; or jurors who wear brown shoes. The list is limited only by one's imagination.
Winfield, 14 Va. App. at 1056-57, 421 S.E.2d at 473 (Benton, J., dissenting) (citation omitted). Today, we add to the list African-American jurors who wear crucifixes, who are gainfully employed in the healing professions, and who, by accident of birth, have the same last name as some unrelated person who the prosecutor knew to be a defendant in some other criminal prosecution. The use of "discriminatory racial prox[ies]" continues. United States v. Bishop, 959 F.2d 820, 826 (9th Cir. 1992).
Obviously, the prosecutor's reference to the juror's crucifix, which he deemed an indication of the juror's "very religious affiliations," as a basis for excluding the juror strikes at both the protections of the First and Fourteenth Amendments of the United States Constitution.
The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is "a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others."
Batson v. Kentucky, 476 U.S. 79, 87-88 (1986) (quotingStrauder v. West Virginia, 100 U.S. 303, 308 (1880).
I dissent.