COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
DEVIN OSHEA JONES MEMORANDUM OPINION* BY v. Record No. 0842-23-2 JUDGE RANDOLPH A. BEALES MAY 21, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Robert H. Morrison, Judge
Steven D. McFadgen Sr. (McFadgen Law, PLC, on brief), for appellant.
J. Brady Hess, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the Circuit Court of Charlotte County convicted Devin Oshea Jones
of possession or transportation of a firearm by a convicted violent felon, in violation of Code
§ 18.2-308.2.1 On appeal, Jones argues that the trial court erred in denying his Batson challenge
to the Commonwealth’s use of two of its four peremptory strikes. See Batson v. Kentucky, 476
U.S. 79 (1986).
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 The Commonwealth moved to nolle prosequi a charge for possession of ammunition by a convicted felon, and the trial court granted the Commonwealth’s motion for good cause shown. (2016)). “This principle requires us to ‘discard the evidence of the accused in conflict with that of
the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.’” Kelley v. Commonwealth, 289 Va. 463, 467-68
(2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).
Jones was charged with possessing or transporting a firearm after having been convicted of
a violent felony. Jones pleaded not guilty to the charge and requested a jury trial. During jury
selection, the Commonwealth made four peremptory strikes, including three strikes on potential
jurors who were African American. Jones’s counsel objected to the Commonwealth striking two of
the African American potential jurors — C.S.2 (Juror 8) and R.S. (Juror 20).3 In making his
objection, Jones’s counsel argued to the trial court, “My client believes the only reason that those
witnesses were struck were because of their race.” He also argued to the trial court that there were
“no questions that were brought up that, or any answers that, [Juror] eight or [Juror] 20 answered or
said anything to the effect that would give the prosecution cause to strike them at this juncture.”
Relying on the United States Supreme Court’s decision in Batson, Jones’s counsel alleged that the
Commonwealth “may have tainted the jury by striking those two jury members with no---with what
we believe would be no real reason for striking them except they were African American.”
The Commonwealth’s Attorney responded to Jones’s Batson challenge by proffering that he
struck Juror 8 “based upon the perceived reaction at that point that that juror might be inclined to go
along with the defense and whatever arguments were made by the defense at that point.” The
Commonwealth’s Attorney noted that Juror 8 was “nodding pretty much in agreement with
everything that Mr. McFadgen [defense counsel] said” during voir dire. Next, the Commonwealth’s
2 We use initials to identify the potential jurors in an attempt to protect their privacy.
Jones’s counsel was clear that he did not allege a Batson challenge with regard to the 3
Commonwealth’s peremptory strike against the third African American potential juror. -2- Attorney proffered that he struck Juror 20 because “his body language certainly to me indicated
something of a lack of interest in what was going on. He was looking down. He was looking away.
He wasn’t paying I did not believe a great deal of attention to what was going on in the course of the
voir dire.” The Commonwealth’s Attorney asserted that the two peremptory strikes had “[n]othing
to do with race” and were instead “[s]imply related to the indications that we received with response
to - - really the body language on both of those” potential jurors.
Finding that Jones failed to make “a prima facie case of a Batson issue,” the trial court
denied Jones’s Batson challenge. The trial court further found that “the Commonwealth has
offered meaningful observations as to the basis” for the strikes. At the conclusion of the trial, the
jury found Jones guilty of possessing or transporting a firearm as a convicted violent felon. Jones
now appeals the trial court’s denial of his Batson challenge.
II. ANALYSIS
On appeal to this Court, Jones argues,
The trial court erred finding Defendant failed to establish a prima facie case of racial exclusion at trial because an inference of purposeful racial exclusion can be drawn from the facts that (1) the Commonwealth’s use of a disproportionate number of peremptory strikes on African-Americans without meaningful questioning of them and (2) the Commonwealth’s use of peremptory strikes changed the racial majority of the venire from African American to Caucasian.
The Supreme Court of Virginia has consistently held, “On appellate review, the trial
court’s conclusion regarding whether reasons given for the strikes are race-neutral is entitled to
great deference, and that determination will not be reversed on appeal unless it is clearly
erroneous.” Avent v. Commonwealth, 279 Va. 175, 196 (2010) (quoting Jackson v.
Commonwealth, 266 Va. 423, 437 (2003), cert. denied, 543 U.S. 842 (2004)). As the Supreme
Court of Virginia has explained, “This deference is understandable because the judicial
‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly -3- within a trial judge’s province.”’” Bethea v. Commonwealth, 297 Va. 730, 756 (2019) (quoting
Hernandez v. New York, 500 U.S. 352, 365 (1991)). “‘[I]n the absence of exceptional
circumstances,’ therefore, appellate courts should ‘defer to the trial court’ because ‘[a]ppellate
judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about
likely motivation.’” Id. at 757 (alterations in original) (quoting Davis v. Ayala, 576 U.S. 257,
274 (2015)).
In Batson, the Supreme Court of the United States ruled that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race.” Batson, 476
U.S. at 89. There are three sequential steps involved in a Batson challenge:
(1) the opponent of the strike “must make out a prima face case” of purposeful discrimination; (2) “the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes”; and (3) “if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.”
Bethea, 297 Va. at 748 (quoting Johnson v. California, 545 U.S. 162, 168 (2005) (alterations and
citations omitted)). “The three-step architecture of Batson presumes the good faith of
prosecutors.” Id.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
DEVIN OSHEA JONES MEMORANDUM OPINION* BY v. Record No. 0842-23-2 JUDGE RANDOLPH A. BEALES MAY 21, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Robert H. Morrison, Judge
Steven D. McFadgen Sr. (McFadgen Law, PLC, on brief), for appellant.
J. Brady Hess, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the Circuit Court of Charlotte County convicted Devin Oshea Jones
of possession or transportation of a firearm by a convicted violent felon, in violation of Code
§ 18.2-308.2.1 On appeal, Jones argues that the trial court erred in denying his Batson challenge
to the Commonwealth’s use of two of its four peremptory strikes. See Batson v. Kentucky, 476
U.S. 79 (1986).
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 The Commonwealth moved to nolle prosequi a charge for possession of ammunition by a convicted felon, and the trial court granted the Commonwealth’s motion for good cause shown. (2016)). “This principle requires us to ‘discard the evidence of the accused in conflict with that of
the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.’” Kelley v. Commonwealth, 289 Va. 463, 467-68
(2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).
Jones was charged with possessing or transporting a firearm after having been convicted of
a violent felony. Jones pleaded not guilty to the charge and requested a jury trial. During jury
selection, the Commonwealth made four peremptory strikes, including three strikes on potential
jurors who were African American. Jones’s counsel objected to the Commonwealth striking two of
the African American potential jurors — C.S.2 (Juror 8) and R.S. (Juror 20).3 In making his
objection, Jones’s counsel argued to the trial court, “My client believes the only reason that those
witnesses were struck were because of their race.” He also argued to the trial court that there were
“no questions that were brought up that, or any answers that, [Juror] eight or [Juror] 20 answered or
said anything to the effect that would give the prosecution cause to strike them at this juncture.”
Relying on the United States Supreme Court’s decision in Batson, Jones’s counsel alleged that the
Commonwealth “may have tainted the jury by striking those two jury members with no---with what
we believe would be no real reason for striking them except they were African American.”
The Commonwealth’s Attorney responded to Jones’s Batson challenge by proffering that he
struck Juror 8 “based upon the perceived reaction at that point that that juror might be inclined to go
along with the defense and whatever arguments were made by the defense at that point.” The
Commonwealth’s Attorney noted that Juror 8 was “nodding pretty much in agreement with
everything that Mr. McFadgen [defense counsel] said” during voir dire. Next, the Commonwealth’s
2 We use initials to identify the potential jurors in an attempt to protect their privacy.
Jones’s counsel was clear that he did not allege a Batson challenge with regard to the 3
Commonwealth’s peremptory strike against the third African American potential juror. -2- Attorney proffered that he struck Juror 20 because “his body language certainly to me indicated
something of a lack of interest in what was going on. He was looking down. He was looking away.
He wasn’t paying I did not believe a great deal of attention to what was going on in the course of the
voir dire.” The Commonwealth’s Attorney asserted that the two peremptory strikes had “[n]othing
to do with race” and were instead “[s]imply related to the indications that we received with response
to - - really the body language on both of those” potential jurors.
Finding that Jones failed to make “a prima facie case of a Batson issue,” the trial court
denied Jones’s Batson challenge. The trial court further found that “the Commonwealth has
offered meaningful observations as to the basis” for the strikes. At the conclusion of the trial, the
jury found Jones guilty of possessing or transporting a firearm as a convicted violent felon. Jones
now appeals the trial court’s denial of his Batson challenge.
II. ANALYSIS
On appeal to this Court, Jones argues,
The trial court erred finding Defendant failed to establish a prima facie case of racial exclusion at trial because an inference of purposeful racial exclusion can be drawn from the facts that (1) the Commonwealth’s use of a disproportionate number of peremptory strikes on African-Americans without meaningful questioning of them and (2) the Commonwealth’s use of peremptory strikes changed the racial majority of the venire from African American to Caucasian.
The Supreme Court of Virginia has consistently held, “On appellate review, the trial
court’s conclusion regarding whether reasons given for the strikes are race-neutral is entitled to
great deference, and that determination will not be reversed on appeal unless it is clearly
erroneous.” Avent v. Commonwealth, 279 Va. 175, 196 (2010) (quoting Jackson v.
Commonwealth, 266 Va. 423, 437 (2003), cert. denied, 543 U.S. 842 (2004)). As the Supreme
Court of Virginia has explained, “This deference is understandable because the judicial
‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly -3- within a trial judge’s province.”’” Bethea v. Commonwealth, 297 Va. 730, 756 (2019) (quoting
Hernandez v. New York, 500 U.S. 352, 365 (1991)). “‘[I]n the absence of exceptional
circumstances,’ therefore, appellate courts should ‘defer to the trial court’ because ‘[a]ppellate
judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about
likely motivation.’” Id. at 757 (alterations in original) (quoting Davis v. Ayala, 576 U.S. 257,
274 (2015)).
In Batson, the Supreme Court of the United States ruled that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race.” Batson, 476
U.S. at 89. There are three sequential steps involved in a Batson challenge:
(1) the opponent of the strike “must make out a prima face case” of purposeful discrimination; (2) “the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes”; and (3) “if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.”
Bethea, 297 Va. at 748 (quoting Johnson v. California, 545 U.S. 162, 168 (2005) (alterations and
citations omitted)). “The three-step architecture of Batson presumes the good faith of
prosecutors.” Id. “[T]he defendant ultimately carries the ‘burden of persuasion’ to ‘prove the
existence of purposeful discrimination.’” Johnson, 545 U.S. at 170-71 (quoting Batson, 476 U.S.
at 93).
Addressing the requisite first step in a Batson challenge, the Supreme Court of Virginia
has previously explained:
When a defendant makes a Batson challenge to the use of a peremptory strike, he must show that the individual “is a member of a cognizable racial group,” and “make a prima facie showing that the peremptory strike was made on racial grounds.” Mere exclusion of members of a particular race by using peremptory strikes “does not itself establish such a prima facie case under Batson.” To establish a prima facie case, the defendant must also
-4- “identify facts and circumstances that raise an inference that potential jurors were excluded based on their race.”
Lawlor v. Davis, 288 Va. 223, 230 (2014) (quoting Juniper v. Commonwealth, 271 Va. 362, 407
(2006)). “[U]nder step one of Batson, a prima facie case need not ‘show that it is more likely
than not’ that the basis of the strike was purposeful racial discrimination.” Bethea, 297 Va. at
749. “Finding that evidence satisfies the prima facie standard only means that a reasonable
factfinder could rationally accept the evidence . . . as satisfying the applicable burden of proof,
and it does not mean the proponent of the prima facie case has in fact proven his case.” Id. at
750.
Here, the trial court found that there was “not a prima facie case of a Batson issue,” and
the record supports the trial court’s determination that Jones failed to establish a prima facie case
of purposeful discrimination. Jones’s counsel argued to the trial court that, for the two
challenged peremptory strikes, “there was nothing in there in regards to the Commonwealth
striking them except they were black.” However, Jones’s counsel proffered no basis for his
assertion that the strikes were racially motivated other than his observation that the
Commonwealth’s two peremptory strikes at issue in this appeal were used on African American
potential jurors. Jones’s counsel also did not identify to the trial court any other “facts and
circumstances that raise an inference that potential jurors were excluded based on their race,”
and he does not do so in this Court on appeal. Juniper, 271 Va. at 407 (quoting Yarbrough v.
Commonwealth, 262 Va. 388, 394 (2001)). As noted supra, the Supreme Court has stated,
“Mere exclusion of members of a particular race by using peremptory strikes ‘does not itself
establish such a prima facie case under Batson.’” Lawlor, 288 Va. at 230 (quoting Juniper, 271
Va. at 407). Therefore, we do not find that the trial court erred in ruling that Jones failed to
establish a prima facie case of purposeful discrimination.
-5- However, even if Jones had made a prima facie case of purposeful discrimination, the
Commonwealth’s Attorney provided race-neutral explanations for striking the two potential
jurors, and Jones failed to prove that the Commonwealth’s explanations were pretextual and
actually based on race. As the Supreme Court of Virginia has reiterated, “Once a defendant
makes a prima facie case, the burden shifts to the Commonwealth ‘to produce race-neutral
explanations for striking the juror.’” Lawlor, 288 Va. at 230 (quoting Juniper, 271 Va. at 436).
“In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether,
assuming the proffered reasons for the peremptory challenges are true, the challenges violate the
Equal Protection Clause as a matter of law.” Hernandez, 500 U.S. at 359.
This Court has made clear that “[a]fter the prosecution provides a race-neutral and
gender-neutral explanation for striking the juror, ‘[t]he defendant may then provide reasons why
the prosecution’s explanations were pretextual and the strikes were discriminatory regardless of
the prosecution’s stated explanations.’” Griffin v. Commonwealth, 78 Va. App. 116, 137 (2023)
(second alteration in original) (quoting Jackson, 266 Va. at 436). “The question of ‘[w]hether
the defendant has carried his burden of proving purposeful discrimination in the selection of the
jury is then a matter to be decided by the trial court.’” Id. (alteration in original) (quoting
Jackson, 266 Va. at 436).
Here, in response to the Batson challenge made by Jones’s counsel, the Commonwealth’s
Attorney explained that he struck Juror 8 because it appeared that she was “nodding pretty much
in agreement with everything that Mr. McFadgen [defense counsel] said” during voir dire. The
Commonwealth’s Attorney expressed concern that Juror 8 “might be inclined to go along with
the defense and whatever arguments were made by the defense at that point.” The prosecutor
then explained that he struck Juror 20 because “his body language . . . indicated something of a
lack of interest in what was going on.” The Commonwealth’s Attorney specifically noted that
-6- Juror 20 “was looking down” and was “looking away” during voir dire. Based on Juror 20’s
behavior during voir dire, the prosecutor said that he “made the assumption from that that he
[Juror 20] very well may not pay attention through the rest of the case.” Furthermore, the
prosecutor maintained that the two strikes had “[n]othing related to race” and were instead based
on “really the body language on both of those” potential jurors.
In short, the Commonwealth’s Attorney based his reasons for striking Juror 8 and Juror
20 on his observations of the jurors’ body language during voir dire — i.e., Juror 8’s nodding in
agreement with defense counsel’s statements and Juror 20’s disinterested “looking down” and
“looking away.” This Court has previously held, “A juror’s body language or demeanor during
voir dire is certainly a gender-neutral and race-neutral reason for striking a juror.” Griffin, 78
Va. App. at 139. The trial court here found that “the Commonwealth has offered meaningful
observations as to the basis” for the peremptory strikes. Given that this Court, unlike the trial
court, does not have the ability on appeal to view the jurors’ demeanor (or observe what may be
motivating the prosecutor), this Court cannot (and should not try to) second-guess the trial
judge’s decision about the Commonwealth’s likely motivation for striking these two potential
jurors. See id. (“Appellate judges cannot on the basis of a cold record easily second-guess a trial
judge’s decision about likely motivation.” (quoting Davis, 576 U.S. at 274)).
In addition, Jones’s counsel has made no showing that the prosecutor’s explanation for
striking the jurors was pretextual and based on race. “In this case, it was incumbent upon [Jones]
to demonstrate that the reasons advanced by the Commonwealth for striking these potential
jurors ‘were purely a pretext for unconstitutional discrimination.’” Avent, 279 Va. at 197
(quoting Juniper, 271 Va. at 407). Jones’s counsel has failed to do so. The prosecutor’s
explanations provided the trial court with a sufficient basis to conclude that the proffered reasons
-7- for striking the jurors were race-neutral and not pretextual. Consequently, for these reasons, we
cannot say that the trial court erred in rejecting Jones’s Batson challenge.
III. CONCLUSION
In short, Jones failed to establish a prima facie case of purposeful discrimination in the
use of peremptory strikes in the jury selection. Furthermore, Jones made no showing that the
Commonwealth’s Attorney’s explanations for striking the two African American jurors were
pretextual and actually based on race. The prosecutor’s explanations also provided the trial court
with a sufficient basis to conclude that the proffered reasons for striking these two potential
jurors were, in fact, race-neutral and not pretextual in any way. Consequently, we do not find
that the trial court erred when it rejected Jones’s Batson challenge.
Therefore, for all of these reasons, we affirm the trial court’s judgment and uphold Jones’s
conviction for possession or transportation of a firearm by a convicted violent felon.
Affirmed.
-8-