Tracy Larmont Johnson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 1, 1995
• Docket: 0941941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bray Argued at Norfolk, Virginia

TRACY LARMONT JOHNSON

v. Record No. 0941-94-1 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA AUGUST 1, 1995

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK William F. Rutherford, Judge (Robert E. Frank, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Tracy Larmont Johnson was convicted of distribution of

cocaine and distribution of cocaine within one thousand feet of a

school. He contends that the prosecution unconstitutionally

exercised its peremptory challenges to remove black persons from

the venire. We hold that the trial court did not err in finding

that the prosecutor offered facially neutral, nondiscriminatory

reasons for exercising her strikes. Therefore, we affirm the

convictions.

During jury selection, the Commonwealth's attorney

peremptorily struck three black persons from the venire, Gerald

Parker, James Graham, and Elsie Stewart. The appellant made a

Batson motion, stating: I think after the strikes for cause, we ended up with a panel that was almost evenly * Pursuant to Code § 17-116.010 this opinion is not designated for publication. split black and white. Of course, we have a black defendant here, and three of the Commonwealth's strikes were of blacks. I think that in and of itself raises an issue about the fairness of the panel, and we challenge it on those grounds.

The trial judge then asked the prosecutor to give her reasons for

striking the black members of the venire.

The Commonwealth's attorney explained that she struck Gerald

Parker because he was a convicted felon, regardless of the fact

that the governor had restored his civil rights. She stated that

she struck James Graham because he did not have a job, was a

student, and was the youngest person on the panel. Explaining

Graham's strike, she stated that, in general, students tend to

involve themselves in drugs more than working people and have a

more liberal attitude about drug use. Finally, the

Commonwealth's attorney stated that she struck Elsie Stewart

because Stewart's son had been prosecuted for a crime and Stewart

sounded as though she was denying her son's responsibility for

the events. The Commonwealth's attorney further explained that

her strike of Stewart was based on a similar unsatisfactory

experience with a mother serving on a jury while her son was

charged with a felony. A defendant is constitutionally entitled to a jury panel

whose members have been selected on a racially nondiscriminatory

basis. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). "The defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race." Powers v. Ohio, 499 U.S. 400, 409 (1991).

-2- "If this showing is made, the burden shifts to the prosecutor to articulate a racially neutral explanation for striking the jurors in question." Batson, 476 U.S. at 96-97. "If the court determines that the proffered reasons are . . . [race and gender] 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 [or gender]." United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991). "But, ultimately, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." Batson, 476 U.S. at 98.

Robertson v. Commonwealth, 18 Va. App. 635, 637-38, 445 S.E.2d

713, 714 (1994).

Assuming that the defense made a prima facie showing that

the prosecution exercised her peremptories on the basis of race,

the burden was on the prosecution to "articulate a neutral

explanation related to a particular case to be tried." Batson at

96-98. A prosecutor may base the peremptory challenge decision

on such considerations as age, Barksdale v. Commonwealth, 17 Va.

App. 456, 460, 438 S.E.2d 761, 764 (1993) (reh'g en banc), or

even hunches or personal experience, State v. Harris, 842 S.W.2d 953, 955 (Mo. App. 1992), as long as the reason is not purposeful

or deliberate exclusion from the jury on account of race. Batson

at 84. "Unless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race

neutral." Purkett v. Elem, 115 S. Ct. 1769, 1771 (May 15, 1995)

(citing Hernandez v. New York, 500 U.S. 352, 360 (1991)). "If a race neutral explanation is tendered the trial court

-3- must then decide [] whether the opponent of the strike has proved

purposeful racial discrimination." Purkett, 115 S. Ct. at

1770-71. The trial court's decision on the question of

discriminatory intent is a finding of fact. Barksdale, 17 Va.

App. at 460, 438 S.E.2d at 764. "Deference to trial court

findings . . . makes particular sense in this context because

evaluation of the prosecutor's state of mind based on demeanor

and credibility lies peculiarly within a trial judge's province." Barksdale, 17 Va. App. at 460, 438 S.E.2d at 764 (quoting

Hernandez v. New York, 500 U.S. 352, 365 (1991) (citation

omitted)). "[W]e consistently have given deference to a trial

court's findings during jury voir dire, and will not disturb

those findings absent a showing of manifest error or abuse of

discretion." Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305,

308 (1992).

The trial court did not err in finding that the prosecutor

offered facially neutral, nondiscriminatory reasons for striking

Parker, Graham, and Stewart from the venire. Her reasoning

focused on criminal background, age, past experience, and

demeanor of the potential jurors. Having articulated race-

neutral criteria, there is "nothing left to review." Hernandez,

500 U.S. at 367. We find no error or abuse of the trial court's

discretion.

We, therefore, affirm the decision of the trial court.

Affirmed.

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