Buck v. Commonwealth

432 S.E.2d 180, 16 Va. App. 551, 9 Va. Law Rep. 1540, 1993 Va. App. LEXIS 208
CourtCourt of Appeals of Virginia
DecidedJune 22, 1993
DocketRecord No. 0593-90-2
StatusPublished
Cited by8 cases

This text of 432 S.E.2d 180 (Buck v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buck v. Commonwealth, 432 S.E.2d 180, 16 Va. App. 551, 9 Va. Law Rep. 1540, 1993 Va. App. LEXIS 208 (Va. Ct. App. 1993).

Opinions

Elder, X,

dissenting.

The majority finds that the Supreme Court’s holding in Hernandez v. New York, 500 U.S. 352 (1991), and this Court’s holding in Winfield v. Commonwealth, 14 Va. App. 1049, 421 S.E.2d 468 (1992) (en banc), require that we affirm the judgment of the trial court. As one of the six members of this Court forming the majority in Winfield, and one of three panel members in two unanimous cases in which we have Anther refined Winfield, Broady v. Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993), and Carter v. Commonwealth, 16 Va. App. 118, 428 S.E.2d 34 (1993), I disagree.

I.

The holding in Batson v. Kentucky, 476 U.S. 79 (1986), requires a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violative of the Equal Protection Clause:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for [565]*565striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez, 500 U.S. at 358-59 (citations omitted). It is clear that “ ‘[t]he trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.’ ” Winfield, 14 Va. App. at 1049, 421 S.E.2d at 469 (quoting Hernandez, 500 U.S. at 364). Furthermore, we will not overturn that finding “ ‘unless ... its determination was clearly erroneous.’ ” Winfield, 14 Va. App. at 1050, 421 S.E.2d at 469 (quoting Hernandez, 500 U.S. at 369).

The question is “[ujnder what circumstances does such a criterion [one closely tied to race] cease being race-neutral and become a surrogate for impermissible racial biases.” United States v. Bishop, 959 F.2d 820, 823 (9th Cir. 1992). The language of Batson makes clear that peremptory strike cases are to be decided on the particular facts of each case. 476 U.S. at 96-98. The majority in this case fails to note the significant factual distinctions between this case and Winfield and Hernandez. In both Winfield and Hernandez, the prosecutors’ explanations were found to be race-neutral. Here, I would conclude that the prosecutor’s reasons clearly ceased to be race-neutral and became “a surrogate for impermissible racial biases.”

A. Race Neutrality in Winfield, Hernandez and Broady

In Winfield, the prosecutor struck one African-American woman because she admitted that she knew the defendant. The other three peremptory strikes of African-American women were based on the prosecutor’s decision made the previous night when he reviewed the venire list “before he had any knowledge of their race.” Winfield v. Commonwealth, 12 Va. 446, 448, 404 S.E.2d 398-99 (1991). These facts are similar to those in Hernandez, where the prosecutor “did not know which jurors were Latinos.” 500 U.S. at 369-70. The prosecutor in Winfield further explained that he made his decisions based on the listed occupations of these persons, which he thought indicated a limited level of education. 12 Va. App. at 452, 404 S.E.2d at 402. Whether the prosecutor’s correlation of employment and education was accurate or a legitimate basis for selecting a jury was not the issue. Clearly, obtaining a well-educated jury is a permissible goal and one that is facially race-neutral. In Winfield, all of the prosecutor’s stated reasons for making the peremptory strikes were facially race-[566]*566neutral representations. In Winfield, defense counsel did not make any representations or offer any evidence to rebut the prosecutor’s articulated facially race-neutral representations. The trial judge found the prosecutor’s explanation credible in Winfield, and under the facts of that case, we found no legal basis upon which to overturn that finding on appeal.

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. ... [E]valuation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”

Hernandez, 500 U.S. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).

In Broady v. Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993), the defense attorney called the trial court’s attention to the fact that the articulated facially race-neutral reason for peremptory strikes was being applied exclusively to African-Americans. There, we said that “after the Commonwealth has asserted a facially race-neutral reason to strike but has only struck jurors of one race and the reason asserted for the strike is equally applicable to other members of the venire of a different race, the reason asserted is not a satisfactory race-neutral explanation for the Commonwealth’s strikes.” Id. at 285, 429 S.E.2d at 471. “[W]hen it is further demonstrated that facially nonracial reasons are applied systematically to blacks but not whites, the Commonwealth has not overcome the presumption that the strikes were racially motivated.” Id. (citing Reynolds v. Benefield, 931 F.2d 506 (8th Cir. 1991)).

B. Race Neutrality and Judicial Notice in Buck

I agree with the majority that, based on the defense attorney’s failure to clearly establish on the record any pretextual basis for the strike of the African-American woman, the trial judge’s finding that the strike of that venireman was race-neutral is supported by credible evidence. However, the prosecutor’s articulated reasons for striking the African-American male raise other issues that should be reviewed by this Court. The prosecutor explained his reason for that strike as follows:

[567]*567Yes, sir, because he came into the court with the other jurors and appeared not to be dressed for the occasion. He came in wearing a Virginia State Varsity jacket; he has a Petersburg address.4 Living in that part of the county, Petersburg has a significant drug problem. Based on his appearance and the address location, 1 thought he would be tolerant of this kind of offense.

The mention of the Virginia State varsity jacket clearly refers to the venireman’s connection to a university whose student body is predominately African-American. See Norris v. State Council of Higher Educ., 327 F. Supp. 1368, 1370 (E.D. Va.), aff’d sub nom. Board of Visitors of the College of William & Mary v. Norris, 404 U.S. 907 (1971).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bobby Dean Ritchie v. Commonwealth of Virginia
Court of Appeals of Virginia, 1999
Buck v. Commonwealth
443 S.E.2d 414 (Supreme Court of Virginia, 1994)
Barksdale v. Commonwealth
438 S.E.2d 761 (Court of Appeals of Virginia, 1993)
Buck v. Commonwealth
432 S.E.2d 180 (Court of Appeals of Virginia, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
432 S.E.2d 180, 16 Va. App. 551, 9 Va. Law Rep. 1540, 1993 Va. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buck-v-commonwealth-vactapp-1993.