COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

CHARLES RICHARD RILEY, 

 a/k/a MIKE COOK, 

 a/k/a AUBREY RAY THROCKMORTON OPINION BY 

 JUDGE ROSEMARIE P. ANNUNZIATA 

v. Record No. 1490-94-2 DECEMBER 12, 1995 

 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge 

 Robert P. Geary for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a jury trial, the appellant, Charles Richard 

Riley, was convicted of abduction, five counts of rape, and two 

counts of sodomy. On appeal, he contends that the trial court 

erred in the following: (1) sustaining the Commonwealth's 

peremptory challenges even though based on the gender of the 

stricken jurors; (2) ruling that the Commonwealth's peremptory 

challenges based on age were proper; and (3) bifurcating the 

trial and sentencing proceedings pursuant to Code § 19.2-295.1. 

We find that the Commonwealth's peremptory strikes were genderbased and, therefore, improper. Accordingly, we reverse the 

convictions of the trial court and remand the case for a new 

trial. We affirm the trial court on the remaining issues 

presented. 

 On March 25, 1993, the victim went for an early morning jog. 
 2 

During her run, the appellant approached the victim, placed her 

in a headlock, and held a knife to her throat. The appellant led 

the victim into the woods where he restrained her with a rope and 

repeatedly raped and sodomized her. The appellant then led the 

victim from the woods and released her. 

 At trial, the Commonwealth used its peremptory strikes to 

remove five prospective jurors. The five jurors were females 

ranging in age from fifty-eight to sixty-six years old. The 

appellant objected on the ground that the peremptory strikes 

violated the Equal Protection Clause because the strikes were 

based on gender and age-related reasons. The trial court 

overruled the objection. 

 I 

 A defendant has the "right to be tried by a jury whose 

members are selected pursuant to nondiscriminatory criteria." 

Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). In Batson, the 

United States Supreme Court held that the peremptory exclusion of 

jurors "on account of their race" violates the Equal Protection 

Clause. Id. at 89. In J.E.B. v. Alabama ex rel. T.B., 114 

S. Ct. 1419 (1994), the Court extended this protection and held 

that "gender, like race, is an unconstitutional proxy for juror 

competence and impartiality." Id. at 1421. 

 The Batson Court established a three-step test to determine 

the validity of allegedly discriminatory peremptory challenges. 

The opponent of a peremptory challenge must establish a prima 

facie case of discrimination (step 1); once a prima facie case is 
 3 

made, the burden of production shifts to the proponent of the 

strike to produce a race-neutral or, as in this case, a genderneutral explanation (step 2); if a neutral explanation is 

proffered, the trial court must then decide whether the opponent 

of the strike has met its burden and proved purposeful 

discrimination (step 3). Purkett v. Elem, 115 S. Ct. 1769, 

1770-71 (1995); see also Buck v. Commonwealth, 247 Va. 449, 

450-51, 443 S.E.2d 414, 415 (1994); Carter v. Commonwealth, 16 

Va. App. 118, 123, 428 S.E.2d 34, 37 (1993). The Supreme Court 

has emphasized the requirement that a court carry out each step 

independently. Terminating the inquiry prematurely, at step two, 

"violates the principle that the ultimate burden of persuasion 

regarding [unlawful discriminatory] motivation rests with, and 

never shifts from, the opponent of the strike." Purkett, 115 

S. Ct. at 1771.1 

 In this case, the appellant contends that the Commonwealth 

exercised its peremptory strikes for age and gender reasons. The 

 

 1 The record reflects that, after the trial court 

determined that the Commonwealth's explanation was neutral, the 

appellant attempted to meet his burden of proving purposeful 

discrimination as mandated by Batson. See Carter, 16 Va. App. at 

124, 428 S.E.2d at 39-40. The appellant argued that the 

Commonwealth's explanation was pretextual, contending that if the 

Commonwealth had wanted to strike persons most unlike the victim, 

it would have stricken men. The trial court did not specifically 

rule on the appellant's contention. Even if this Court found 

that the Commonwealth met its step two burden by providing a 

neutral, age-based, explanation for its strikes, the trial court 

failed to determine whether the allegedly neutral reasons given 

were pretextual. See id. Ending the inquiry without making such 

a determination is error, requiring remand. United States v. 

Joe, 928 F.2d 99, 103 (4th Cir.), cert. denied, 502 U.S. 816 

(1991). 

 
 4 

propriety of the appellant's prima facie case is not at issue. 

The trial judge expressed some doubt about the existence of a 

prima facie showing but assumed, for the purpose of the record, 

that the appellant met his initial burden. Moreover, the 

Commonwealth proceeded in its attempt to offer neutral reasons 

for the challenges. When the proponent proceeds to step two 

before the court makes a step one determination, the trial court 

need not consider whether the opponent established a prima facie

showing of discrimination. See Buck, 247 Va. at 451, 443 S.E.2d 

at 415 (citing Hernandez v. New York, 500 U.S. 352, 359 (1991) 

(plurality opinion)). 

 In attempting to provide a neutral explanation, the 

Commonwealth defended the constitutionality of its selections as 

follows: 

 What I have done, by removing the people I 

struck, I have removed women who are most 

unlike the victim, in terms of age. I have 

left on those who share the victim's 

characteristics as much as I can, in terms of 

their sex and their age. There is not a 

discriminatory basis. This is a basis based 

on the facts that I have a rape victim who 

is, (A) She's a working female. I don't know 

what attitude other individuals who are older 

may take; and (B) I have a young lady who is 

out jogging, and I don't know what attitude 

older females may take, but I do know they're 

most unlike the victim, as far as I can 

determine from the scant evidence we have, 

their age and their lifestyle. I would point 

out to the Court that I have in the past, my 

experience, based on trying cases, and I am a 

veteran of seventeen years of trying cases, 

from Henrico County Circuit Court, is that in 

rape cases, feedback I have gotten from the 

jury afterwards, is that many times the 

elderly female jurors have difficulty 

accepting certain aspects of the cases, and 

they have a difficult time considering the 
 5 

evidence and reaching a verdict of guilt. 

 A trial court's determination that the Commonwealth's 

explanation was gender-neutral is a finding on a matter of law 

and fully reversible by this Court. See Purkett, 115 S. Ct. at 

1771 (step two explanation must be legally sufficient to justify 

judgment for defendant); Hernandez, 500 U.S. at 360 (step two 

explanation is invalid if discriminatory intent is inherent in 

the explanation). Unlike a trial court's determination that the 

explanation is pretextual, a determination turning largely on the 

proponent's credibility, e.g. Hernandez, 500 U.S. at 365, a trial 

court's finding of "facial neutrality" is not given deference on 

appeal. 

 The trial court determined that the Commonwealth's 

explanation was facially neutral, limiting its inquiry to the 

factor of age alone. The court correctly concluded that age is a 

permissible basis upon which to exercise a peremptory strike. 

See Barksdale v. Commonwealth, 17 Va. App. 456, 461, 438 S.E.2d 

761, 764 (1993); Chambliss v. Commonwealth, 9 Va. App. 267, 

269-70, 386 S.E.2d 478, 479 (1989). However, the court failed to 

address defense counsel's contention that the Commonwealth's 

strikes were gender-based. 

 To survive challenge at step two, the strike must be based 

on a juror characteristic other than gender. J.E.B., 114 S. Ct. 

at 1430. Here, however, the prosecutor's explanation clearly 

references his intention to strike only women--albeit older 

women--from the jury panel. The fact that the Commonwealth used 
 6 

age to identify which women to strike does not overcome the 

constitutional infirmity. The Commonwealth exercised its strikes 

based on the assumption that the women would hold particular 

views because of their gender. Such attempts to stereotype in 

the jury selection process are impermissible. Lying "at the very 

heart of the jury system" is the factual assumption that "jury 

competence is an individual rather than a group or class matter." 

J.E.B., 114 S. Ct. at 1430 n.19. 

 The Commonwealth's explanation bears a striking resemblance 

to the justification offered by the State of Alabama in J.E.B.

when it used nine of its ten peremptory challenges to strike men. 

 The State maintained that its decision to strike virtually all 

males from the jury 

 may reasonably have been based upon the 

perception, supported by history, that men 

otherwise totally qualified to serve upon a 

jury might be more sympathetic and receptive 

to the arguments of a man alleged in a 

paternity action to be the father of an 

 out-of-wedlock child, while women equally 

qualified to serve upon a jury might be more 

sympathetic and receptive to the arguments of 

the complaining witness who bore the child. 

J.E.B., 114 S. Ct. at 1426. 

 The J.E.B. Court rejected the defense to gender-based 

peremptory challenges as "'the very stereotype the law 

condemns.'" Id. Such discrimination "serves to ratify and 

perpetuate invidious, archaic, and overbroad stereotypes about 

the relative abilities of men and women." Id. at 1422. 

"[G]ender classifications that rest on impermissible stereotypes 

violate the Equal Protection Clause, even when some statistical 
 7 

support can be conjured up for the generalization." Id. at 1427 

n.11. 

 The explanations offered by the Commonwealth evidence a 

clear violation of J.E.B. and require this Court to reverse and 

remand this case to the trial court for further proceedings 

consistent with this opinion. 

 II 

 The appellant argues that under Code § 1-16,2 the unitary 

trial and sentencing procedures in force at the time of his 

crimes should have been followed at his second trial rather than 

the bifurcated proceedings mandated by Code § 19.2-295.1. This 

crime occurred on March 25, 1993. The appellant was first 

convicted on November 16 and 17, 1993. Those convictions were 

overturned and a new trial was ordered due to juror misconduct. 

Code § 19.2-295.13

 took effect after the first trial and before 

 

 2 Code § 1-16 provides, in pertinent part: 

 No new law shall be construed to repeal a 

former law, as to any offense committed 

against the former law, or as to any act 

done, any penalty, forfeiture, or punishment 

incurred, or any right accrued, or claim 

arising under the former law, or in any way 

whatever to affect any such offense or act so 

committed or done, or any penalty, 

forfeiture, or punishment so incurred, or any 

right accrued, or claim arising before the 

new law takes effect; save only that the 

proceedings thereafter had shall conform, so 

far as practicable, to the laws in force at 

the time of such proceedings. 

 3 Code § 19.2-295.1 provides, in pertinent part: 

 In cases of trial by jury, upon a finding 

that the defendant is guilty of a felony, a 

separate proceeding limited to the 
 8 

the second. 

 In construing Code § 1-16, the Virginia Supreme Court has 

held that the "procedural provisions of the statute in effect on 

the date of trial control the conduct of trial insofar as 

practicable." Smith v. Commonwealth, 219 Va. 455, 476, 248 

S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979). 

 Code § 19.2-295.1 does not convey a substantive right. Cf.

Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638-39 

(1994) (twenty-one day transfer period for juveniles held not to 

confer substantive right and is therefore procedural). 

Procedural in nature, Code § 19.2-295.1 properly governed the 

second trial and permitted bifurcating the trial and sentencing 

proceedings. Accordingly, the trial court did not err in 

bifurcating the sentencing proceedings in the appellant's second 

trial. 

 For the foregoing reasons, we reverse the convictions on the 

basis of gender discrimination during juror selection and remand 

the case for a new trial if the Commonwealth be so advised. On 

the remaining questions presented, we affirm the trial court's 

rulings and judgment. 

 

 ascertainment of punishment shall be held as 

soon as practicable before the same jury. At 

such proceeding, the Commonwealth shall 

present the defendant's prior criminal 

convictions by certified, attested or 

exemplified copies of the record of 

conviction, including adult convictions and 

juvenile convictions and adjudications of 

delinquency. . . . 
 9 

 Affirmed in part, 

reversed in part, 

 and remanded.