COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

EMORY ADRIAN GOODSON 

v. Record No. 1176-94-2 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA MARCH 12, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 Margaret Ann Englisby (Denis C. Englisby; 

Englisby & Englisby, on brief), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

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

brief), for appellee. 

 Emory Adrian Goodson (appellant) was convicted in a jury 

trial of being an accessory after the fact to attempted murder of 

James Kennedy (Kennedy). Additionally, he was convicted of 

attempted robbery of Kennedy, attempted murder of Irvin Condrey 

(Condrey), use of a firearm in the commission of attempted murder 

of Condrey, robbery of Condrey, and use of a firearm in the 

commission of robbery of Condrey. On appeal, he argues that the 

trial court erred in: (1) joining his jury trial with his 

accomplice's bench trial; (2) granting attempted murder 

instructions submitted by the Commonwealth that did not include 

intent to kill as a required element; (3) granting instructions 

defining malice and allowing the jury to infer malice from the 

use of a deadly weapon; (4) refusing an instruction for the 

lesser included offense of being an accessory after the fact to 
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the second attempted murder and the robbery; (5) refusing to 

strike for cause two prospective jurors; and (6) allowing the 

Commonwealth to strike the only two African-American jurors on 

the jury panel. We hold that the trial court erred on the 

attempted murder charges in failing to include the requirement of 

a specific intent to kill in the jury instructions. Thus, we 

reverse and remand his convictions for being an accessory after 

the fact to attempted murder of Kennedy, attempted murder of 

Condrey, and use of a firearm in the commission of attempted 

murder of Condrey. Because the trial court did not err in its 

joinder of co-defendants for trial or in its rulings to seat the 

jury, we affirm appellant's convictions for attempted robbery of 

Kennedy, robbery of Condrey, and use of a firearm in the 

commission of robbery of Condrey. 

 BACKGROUND 

 On December 22, 1993, appellant met Corey Johnson (Johnson) 

and Johnson's cousin, Mark Hatcher, and drove Johnson to a job 

interview. After the interview, Johnson asked if appellant would 

drive him to pick up a friend, Herbert Ross (Ross). Once Ross 

joined the others, Johnson told appellant to drive to the Crestar 

Bank at the Pocono Crossing shopping center. On the way to the 

bank, appellant overheard Johnson and Ross talking about "taking 

somebody['s] money after they were getting it out of the bank." 

At 8:15 p.m., appellant, at Ross's direction, pulled behind James 

Kennedy's (Kennedy) car, which was parked at the Crestar drive-
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through automatic teller machine (ATM). Johnson and Ross got out 

of the car, planning to rob Kennedy. Kennedy heard the word 

"robbery," saw a black male outside of a vehicle pointing a 

pistol at him, and fled in his car. Ross fired two shots at 

Kennedy's car, striking the car once. Johnson and Ross returned 

to appellant's car, and appellant drove the men away from the 

bank. 

 Less than two hours later, at 10:00 p.m., appellant pulled 

into the parking lot of the NationsBank on Midlothian Turnpike. 

In the car, Johnson and Ross planned another robbery and told 

appellant he would get a cut. Irvin Condrey (Condrey) drove up 

to the ATM and withdrew $150. Johnson and Ross approached him, 

and Johnson pointed a pistol at Condrey and demanded the money. 

Condrey gave Johnson the cash and drove about thirty to forty 

yards away. Johnson and Ross got back into appellant's car. 

Condrey waited until appellant drove out of the parking lot and 

followed appellant's car down Midlothian Turnpike, flashing his 

lights and blowing his horn to attract attention. Johnson fired 

at Condrey's truck "a good twenty times," and hit the truck at 

least four times, including once in the windshield on the 

driver's side. During his pursuit, Condrey wrote the license 

plate number of appellant's car on his hand. Appellant was 

arrested on December 24, 1993. 

 MOTION TO SEVER

 Prior to trial, appellant moved to sever his jury trial from 
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that of his co-defendant Johnson, who had requested a bench 

trial. Appellant argued that combining a jury trial and bench 

trial would be confusing and inherently prejudicial. The 

Commonwealth argued that judicial economy required a joint trial 

and that the evidence against both defendants was substantially 

the same and involved approximately fourteen witnesses. In a 

letter opinion dated April 15, 1994, the trial judge denied 

appellant's severance motion, finding that "the Commonwealth's 

Attorney has shown good cause [and] no basis whereby any 

defendant would be prejudiced." The court joined appellant's 

jury trial with Johnson's bench trial. 

 Code § 19.2-262.1 provides as follows: 

 On motion of the Commonwealth, for good cause 

shown, the court, in its discretion, may 

order persons charged with participating in 

contemporaneous and related acts or 

occurrences or in a series of acts or 

occurrences constituting an offense or 

offenses to be tried jointly unless such 

joint trial would constitute prejudice to a 

defendant. 

(Emphasis added). Code § 19.2-262.1 is similar to Rule 3A:10(b)1

governing joinder of offenses, which provides as follows: 

 The court may direct that an accused be 

tried at one time for all offenses then 

pending against him, if justice does not 

require separate trials and (i) the offenses 

meet the requirements of Rule 3A:6(b) or (ii) 

the accused and the Commonwealth's attorney 

consent thereto. 

 

 1Rule 3A:10 was amended January 1, 1994, and former 

subsection (b) was redesignated as subsection (c). 
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Under Rule 3A:10(b), "[a] trial court has limited discretion to 

order that an accused be tried concurrently for multiple 

offenses." Johnson v. Commonwealth, 20 Va. App. 49, 55, 455 

S.E.2d 261, 265 (1995). Similarly, Code § 19.2-262.1 limits the 

discretion of the trial court as to joinder of defendants and 

requires a court to provide separate trials for individual 

defendants unless good cause exists for joinder and no prejudice 

would result from a joint trial. In determining whether a joint 

trial would prejudice a defendant, the trial court should require 

"[t]he party moving for severance [to] establish that actual 

prejudice would result from a joint trial." United States v. 

Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert. 

denied, 115 S. Ct. 2597 (1995).2 

 Although the trial procedures used in a bench trial may vary 

from those required in a jury trial, there is nothing inherently 

prejudicial in joining them for trial. No inherent prejudice 

arises simply because a defense counsel is allowed to cross-

 

 2Federal Criminal Procedure Rule 14 provides as follows: 

"'If it appears that a defendant or the government is prejudiced 

by a joinder of . . . defendants . . . for trial together, the 

court may order an election or separate trials of counts, grant a 

severance of defendants or provide whatever other relief justice 

requires.'" Zafiro v. United States, 506 U.S. 534, 538 (1993) 

(quoting Fed. R. Crim. P. 14). Under Rule 14, "'[t]he grant or 

denial of a motion for severance . . . is within the trial 

court's discretion and will not be overturned absent a clear 

abuse of that discretion.'" Reavis, 48 F.3d at 767. Although 

Rule 14 contains the presumption that defendants will be tried 

together unless prejudice is shown, cases interpreting prejudice 

under Rule 14 are instructive in determining what constitutes 

"prejudice" under Code § 19.2-262.1. 
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examine the co-defendent's witnesses, thereby creating the 

impression that the co-defendents may be hostile to each other's 

position. Although the jury may hear evidence that is material 

or germane only to the co-defendent's charges, appellant has 

shown no prejudice in this case. Thus, the trial court did not 

abuse its discretion in joining appellant and Johnson for trial. 

 At the time of the motion for severance, appellant made no 

specific allegation of actual prejudice, but argued only that 

combining his jury trial with Johnson's bench trial would be 

"inherently prejudicial." Appellant's later arguments that the 

joint trial was confusing and prejudicial did not meet the 

threshold of establishing actual prejudice. Ample evidence 

supports the trial court's finding that good cause existed for 

the joint trial and that no actual prejudice resulted. 

JURY INSTRUCTIONS--ATTEMPTED FELONY MURDER

 Appellant next contends that the trial court erred on the 

attempted murder charges by failing to include the requisite 

intent to kill in its instructions to the jury and by extending 

the felony murder analysis to attempted murder charges where 

there was no homicide. No Virginia case has addressed the 

question of whether attempted felony murder is a crime. We join 

the majority of states and hold that, in order for a felony 

murder analysis to be applicable, a homicide must occur. Thus, 

we hold that there can be no conviction for attempted murder 

without proof of a specific intent to kill. 
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 At trial, the Commonwealth combined the theories of concert 

of action used in the robbery and attempted robbery charges and 

the felony murder doctrine in formulating its instructions on 

attempted first degree murder. The Commonwealth's Instructions 7 

and 16 set forth the elements of attempted first degree murder as 

follows: 

 1. That the defendant or someone acting 

in concert with him attempted to kill 

[victim]; 

 2. That the attempted killing was 

malicious; and 

 3. That the attempted killing occurred 

during the commission of attempted 

robbery/robbery. 

No requirement of a specific intent to kill was included in the 

attempted murder instructions. Additionally, the Commonwealth 

submitted Instruction 5, defining the overt act required for an 

attempt crime. However, although the attempted robbery 

instruction (Instruction 4) required proof of an overt act toward 

the commission of robbery, the attempted murder instructions did 

not require proof of an overt act toward the commission of 

murder. 

 Appellant first argues that the Commonwealth's instructions 

removed "one of the basic elements of an attempt" to murder, that 

is, proof of the specific intent to kill or commit murder. The 

trial judge stated as follows: 

 If you're involved in a felony and a murder 

occurs, then you're presumed to intend that 

to be the natural and probable consequence of 

your act being involved in the robbery, and 
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that's the whole purpose of the felony murder 

doctrine. The intent is presumed. You're 

arguing that they must show the intent, and I 

don't know that that's the law, under the 

felony murder doctrine, and that's the theory 

of their case. 

This ruling effectively relieved the Commonwealth of its burden 

to prove both the specific intent to kill and an overt act toward 

the commission of attempted murder. 

 "A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 

503, 290 S.E.2d 856, 858 (1982)). "It is elementary that a jury 

must be informed as to the essential elements of the offense; a 

correct statement of the law is one of the 'essentials of a fair 

trial.'" Eubanks v. Commonwealth, 18 Va. App. 537, 541, 445 

S.E.2d 706, 708 (1994) (quoting Campbell v. Commonwealth, 14 Va. 

App. 988, 995, 421 S.E.2d 652, 656 (1992), aff'd in part, 246 Va. 

174, 431 S.E.2d 648 (1993)). 

 Code § 18.2-32 defines first degree murder as follows: 

 Murder, other than capital murder, by 

poison, lying in wait, imprisonment, 

starving, or by any willful, deliberate, and 

premeditated killing, or in the commission 

of, or attempt to commit, arson, rape, 

forcible sodomy, inanimate object sexual 

penetration, robbery, burglary or abduction, 

except as provided in § 18.2-31, is murder of 

the first degree, punishable as a Class 2 

felony. 
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(Emphasis added). Under Code § 18.2-32, a killing with malice 

during the commission of or attempt to commit robbery is 

punishable as a form of first degree murder known as felony 

murder. Spain v. Commonwealth, 7 Va. App. 385, 394, 373 S.E.2d 

728, 733 (1988). "'Where a person maliciously engages in 

criminal activity, such as robbery, and homicide of the victim 

results, the malice inherent in the robbery provides the malice 

prerequisite to a finding that the homicide was murder.'" Id.

(emphasis added) (quoting Wooden v. Commonwealth, 222 Va. 758, 

762, 284 S.E.2d 811, 814 (1981)). "'Neither premeditation nor an 

intent to kill is an element of felony murder'; only malice is 

required." Jones v. Commonwealth, 15 Va. App. 384, 388, 424 

S.E.2d 563, 565 (1992) (quoting Wooden, 222 Va. at 762, 284 

S.E.2d at 814). "'The [felony-murder] doctrine was developed to 

elevate to murder a homicide committed during the course of a 

felony by imputing malice to the killing.'" Berkeley v. 

Commonwealth, 19 Va. App. 279, 285, 451 S.E.2d 41, 44 (1994) 

(emphasis added) (quoting Spain, 7 Va. App. at 393, 373 S.E.2d at 

732). 

 If a death had occurred in this case, a felony murder 

analysis would clearly have been appropriate. However, when 

there is no completed homicide, but only an attempted homicide, 

the question is whether the intent to commit a felony provides 

the requisite element of intent to kill for attempted murder. 

 The law is well-established in Virginia that "'[a]n attempt 
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to commit a crime is composed of two elements: (1) The intent to 

commit it; and (2) a direct, ineffectual act done towards its 

commission.'" Haywood v. Commonwealth, 20 Va. App. 562, 565, 

458 S.E.2d 606, 607-08 (1995) (quoting Merritt v. Commonwealth, 

164 Va. 653, 657, 180 S.E. 395, 397 (1935)). "A person cannot be 

guilty of an attempt to commit murder unless he has a specific 

intent to kill." Haywood, 20 Va. App. at 565, 458 S.E.2d at 607. 

 As to the required intent for attempted murder, the Supreme 

Court of Virginia has held: "'To commit murder one need not 

intend to take life; but to be guilty of an attempt to murder, he 

must so intend. It is not sufficient that his act, had it been 

fatal, would have been murder.'" Hancock v. Commonwealth, 12 Va. 

App. 774, 782, 407 S.E.2d 301, 306 (1991) (quoting Merritt, 164 

Va. at 661, 180 S.E. at 399). See also Thacker v. Commonwealth, 

134 Va. 767, 771-72, 114 S.E. 504, 506 (1922) (requiring specific 

intent to kill for attempted murder). However, no Virginia court 

has decided whether attempted felony murder is a crime and, if 

so, whether the specific intent to kill may be imputed from the 

intent to commit the underlying felony. 

 The majority of jurisdictions that have addressed this issue 

hold that there can be no crime of attempted felony murder 

because the underlying criminal intent to commit the enumerated 

felony is insufficient to prove the specific intent required for 

attempted murder. See, e.g., State v. Gray, 654 So. 2d 552, 

552-53 (Fla. 1995); People v. Trinkle, 369 N.E.2d 888, 891-92 
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(Ill. 1977); State v. Robinson, 883 P.2d 764, 767 (Kan. 1994); 

Bruce v. State, 566 A.2d 103, 105-06 (Md. 1989); State v. Darby, 

491 A.2d 733, 736 (N.J. Super. Ct. App. Div. 1984), certification 

denied, 501 A.2d 905 (N.J. 1985); State v. Price, 726 P.2d 857, 

858-60 (N.M. Ct. App.), cert. quashed, 726 P.2d 856 (N.M. 1986); 

People v. Hassin, 368 N.Y.S.2d 253, 254 (N.Y. App. Div. 1975); 

State v. Bell, 785 P.2d 390, 392-94 (Utah 1989). Additionally, 

many states limit the application of the felony murder doctrine 

to cases involving the commission of an actual homicide. See, 

e.g., People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975); Head v. 

State, 443 N.E.2d 44, 50-51 (Ind. 1982); Robinson, 883 P.2d at 

767. These states explain that "the fact that bodily injury has 

occurred in the commission or attempted commission of one of the 

. . . statutorily-enumerated felonies [does not] warrant[] the 

presumption that, as a matter of law, the perpetrator possessed 

the mens rea requisite to murder." Head, 443 N.E.2d at 50. We 

too decline to extend the felony murder doctrine to create a 

category of attempted felony murder. 

 In holding that attempted felony murder is a logical 

impossibility without proof of a specific intent to kill, other 

courts have noted that "[o]ne cannot attempt to commit an act 

which one does not intend to commit." Hassin, 368 N.Y.S.2d at 

254 (citation omitted). As the Supreme Court of Illinois stated 

in Trinkle, "[f]elony murder, unlike attempted murder, does not 

require an intent to kill." 369 N.E.2d at 891. 

 [T]he crime of attempted felony murder is 
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logically impossible. . . . [F]elony murder 

is based on a legal fiction that implies 

malice aforethought from the actor's intent 

to commit the underlying felony. This means 

that when a person is killed during the 

commission of certain felonies, the felon is 

said to have the intent to commit the death--

even if the killing was unintended. 

Gray, 654 So. 2d at 553 (citations omitted). Similarly, those 

courts requiring an actual death before applying a felony murder 

analysis have recognized that: 

 [T]he purpose of the felony-murder doctrine 

is to deter those engaged in felonies from 

killing negligently or accidentally . . . . 

[A] homicide must occur for the felony-murder 

rule to apply. . . . [T]he doctrine [should 

not be extended] beyond its legislative 

rationale of deterring foreseeable deaths 

that occur during an inherently dangerous 

felony. 

 

Robinson, 883 P.2d at 767 (emphasis added). 

 We agree with the rationale of Robinson. Accordingly, we 

hold that the jury instructions on attempted first degree murder 

in the present case were deficient because they lacked the 

requirement of a specific intent to kill in order to prove 

attempted murder. To allow use of the felony murder doctrine to 

impute specific intent from the intent to commit the underlying 

felony would eliminate the Commonwealth's burden to prove a 

specific intent to kill as an element of attempted murder. See

Viser, 343 N.E.2d at 911 ("Such an instruction, applied to other 

forcible felonies, would mean that every person who commits 

burglary, or robbery, or rape, is guilty of attempt murder."). 

Thus, in an attempted first degree murder case under Code 
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§ 18.2-32, the Commonwealth is required to prove the specific 

intent to kill by one of the enumerated means of "poison, lying 

in wait, imprisonment, [or] starving," or by a "willful, 

premeditated, and deliberate" act. See Smith v. Commonwealth, 

220 Va. 696, 700, 261 S.E.2d 550, 553 (1980) (holding that 

premeditation means adopting a specific intent to kill, 

distinguishing first from second degree murder). 

 Additionally, the jury instructions on the attempted murder 

charges, unlike Instruction 4 on the attempted robbery charge, 

did not require proof of an overt act toward the consummation of 

the crime. In Virginia, a charge of attempted murder requires 

the Commonwealth to prove that the accused or someone acting in 

concert with the accused committed an "overt but ineffectual act 

. . . in furtherance of the criminal purpose." Martin v. 

Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) 

(en banc). Thus, the attempted murder instructions granted by 

the trial judge were deficient because they did not contain the 

essential elements of the offense. Upon retrial, the trial 

court's instructions to the jury on the attempted murder charges, 

if the evidence warrants giving such instructions, must contain 

specific intent to kill as an element and the overt act required 

for an attempt to murder. 

 JURY INSTRUCTIONS--MALICE

 Appellant also argues that the trial court erred in 

instructing the jury on the definition of malice and in allowing 
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the jury to infer malice as to the attempted murder charges from 

the use of a deadly weapon by a participant in the robbery or 

attempted robbery. 

 In a first degree murder case, "[m]alice is subsumed in 

proof of willfulness, deliberateness, and premeditation in the 

commission of a criminal offense." Mackall v. Commonwealth, 236 

Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert. denied, 492 U.S. 

925 (1989). Proof of a specific intent to kill is a necessary 

element of every attempted first degree murder. Therefore, proof 

of intent to kill establishes malice, and no separate proof of 

malice is necessary. However, "[t]he use of a deadly weapon, 

standing alone, is not sufficient to prove the specific intent

required to establish attempted murder." Hargrave v. 

Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974) 

(emphasis added). Thus, under these facts, should the 

Commonwealth proceed with the attempted murder prosecutions, 

instructions on malice are unnecessary upon retrial. 

JURY INSTRUCTIONS--LESSER INCLUDED OFFENSE

 Appellant next argues that the trial judge erred in refusing 

an accessory after the fact instruction regarding the second 

robbery and attempted murder of Condrey. 

 "[T]he trial court should instruct the jury only on those 

theories of the case which find support in the evidence." Morse 

v. Commonwealth, 17 Va. App. 627, 632-33, 440 S.E.2d 145, 149 

(1994). "'If any credible evidence in the record supports a 
- 15 - 

proffered instruction on a lesser included offense, failure to 

give the instruction is reversible error.' 'Such an instruction, 

however, must be supported by more than a mere scintilla of 

evidence.'" Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 

S.E.2d 563, 564 (1993) (citations omitted). "[T]he weight of the 

credible evidence that will amount to more than a mere scintilla 

of evidence is a matter to be resolved on a case-by-case basis." 

Id. at 412, 430 S.E.2d at 565. 

 The trial court did not err in refusing to instruct the jury 

on the lesser included offense of being an accessory after the 

fact to the crimes committed against Condrey. The evidence 

established that the incident involving Condrey was the second 

attack on an ATM customer within a two-hour period. Appellant 

participated in the first incident by driving Johnson and Ross to 

the ATM, saw Johnson and Ross attempt to rob Kennedy, knew that 

Ross had a gun, and saw Ross shoot at Kennedy. He also knew that 

Johnson and Ross were planning a second robbery, was told that he 

would get some of the stolen money, and drove the car to the 

second ATM and during the shoot-out and chase with Condrey. 

Thus, no evidence supported an accessory after the fact 

instruction on the robbery and second attempted murder charge. 

 JUROR STRIKES--CAUSE

 During voir dire, appellant moved to strike Karen Minor 

(Minor) and Patricia Kelley (Kelley). When the trial judge asked 
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if any prospective jurors had acquired information about the 

case, Minor stated that she worked in the same building as 

Kennedy and that there had been "a lot of discussion about the 

case at work." Minor never discussed the case with Kennedy and 

worked in a different department on a different floor. Minor 

agreed that the discussion at the office would not prevent her 

from rendering a fair trial to appellant. Minor also agreed that 

she would not feel uncomfortable rendering a decision favorable 

to appellant, and that she had not formed an opinion as to 

appellant's guilt or innocence. 

 Kelley was an employee of Crestar Bank at its downtown 

headquarters. She had not heard anything about the case and was 

not aware that one of the ATM machines involved in the case was 

at a Crestar branch. Like Minor, she indicated that she would be 

able to give appellant a fair trial. 

 "'The partiality or impartiality of an individual juror is a 

factual issue best determined by the trial court.'" Swanson v. 

Commonwealth, 18 Va. App. 182, 186, 442 S.E.2d 702, 704 (1994) 

(quoting Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 

422, 431 (1985), cert. denied, 475 U.S. 1099 (1986)). "'Because 

the trial judge has the opportunity . . . to observe and evaluate 

the apparent sincerity, conscientiousness, intelligence, and 

demeanor of prospective jurors,' the disposition of a challenge 

for cause is an exercise of judicial discretion which will not be 

disturbed on appeal, absent manifest error." Swanson, 18 Va. 
- 17 - 

App. at 186, 442 S.E.2d at 704 (quoting Pope v. Commonwealth, 234 

Va. 114, 123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485 

U.S. 1015 (1988)). 

 No manifest error exists in this case. The voir dire of 

Minor established that, although she worked in the same building 

as one victim, she did not work in the same department and had 

not discussed the case with him. She indicated that the 

discussion of the case at work would not prevent her from giving 

appellant a fair trial.3

 Likewise, Kelley stated that she would 

be able to give appellant a fair trial. Although Kelley worked 

for Crestar, which owned one of the ATM machines involved in this 

case, her office was in the downtown headquarters of Crestar, not 

at the branch office where the attack against Kennedy occurred. 

Additionally, she indicated that her employment would not bias 

her against appellant. Thus, no manifest error can be found in 

the trial judge's ruling refusing to strike these two prospective 

jurors for cause. 

 

 3This case is distinguishable from Clements v. Commonwealth, 

21 Va. App. 386, 464 S.E.2d 534 (1995), in which this Court held 

that the trial court erred in refusing to strike for cause a 

juror who overheard gossip about the case. Id. at 388-93, 464 

S.E.2d at 535-38. However, in Clements, which involved an appeal 

of a sodomy conviction, the juror also had a close relative who 

was raped and sodomized. Id. at 391, 464 S.E.2d at 536-37. 

Additionally, the entire voir dire of the juror established that 

the juror would "try" to be fair, that it was possible the gossip 

would influence his decision, and that he may have already formed 

an opinion about the case. Id. at 388-93, 464 S.E.2d at 535-38. 

 In this case, Minor stated that she would give appellant a fair 

trial and that the discussions at work would not influence her 

decision. 
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 JUROR STRIKES--PEREMPTORY

 Lastly, appellant challenged the Commonwealth's peremptory 

strikes of two African-American jurors as being violative of the 

requirements of Batson v. Kentucky, 476 U.S. 79 (1976). The 

Commonwealth's attorney offered the following reasons for 

striking the two African-Americans. Katherine Gresham's 

(Gresham) occupation as a "housekeeping aid" indicated that she 

had limited education, and she appeared to be visibly upset when 

the jury was told that the minimum prison sentence for all the 

charges would be sixty-five years. The other African-American 

juror, Stella Jones (Jones), was the youngest member of the jury 

panel and was unemployed. The trial judge found these reasons to 

be race-neutral and overruled appellant's objection. 

 In determining whether the Commonwealth's use of peremptory 

strikes is racially motivated, "the trial court must consider the 

basis of the challenges, the reasons proffered for the strikes, 

and any argument presented that such reasons, even if 

race-neutral, are pretextual, to determine whether the challenger 

has met his burden of proving purposeful discrimination in the 

selection of a jury panel." Chandler v. Commonwealth, 249 Va. 

270, 277, 455 S.E.2d 219, 223, cert. denied, 116 S. Ct. 233 

(1995). 

 A "trial court's decision on the 

ultimate question of discriminatory intent 

represents a finding of fact of the sort 

accorded great deference on appeal," and this 

decision will not be reversed unless clearly 

erroneous. This standard of review logically 

recognizes the trial court's unique 
- 19 - 

opportunity to observe and evaluate "the 

prosecutor's state of mind based on demeanor 

and credibility" in the context of the case 

then before the court. 

Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713, 

715 (1994) (citations omitted). "'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 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 

(1991)). Age, education, employment, and demeanor during voir 

dire may constitute race-neutral explanations for a peremptory 

strike. See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402 

S.E.2d 196, 205-06, cert. denied, 502 U.S. 902 (1991). 

 In the instant case, the trial court specifically found that 

the reasons offered by the Commonwealth's attorney were raceneutral. The prosecutor struck Gresham because of her apparent 

limited education and her demeanor, and Jones because of her age 

and unemployment. The explanations provided by the prosecutor 

satisfied the race-neutral standard. See, e.g., Barksdale v. 

Commonwealth, 17 Va. App. 456, 460-61, 438 S.E.2d 761, 764 (1993) 

(en banc) (age is appropriate consideration in using peremptory 

strike); Winfield v. Commonwealth, 12 Va. App. 446, 452, 404 

S.E.2d 398, 401-02 (1991) (limited education apparent from 

occupation is proper reason to strike juror), aff'd en banc, 14 

Va. App. 1049, 421 S.E.2d 468 (1992). Thus, the trial court's 

denial of appellant's Batson challenge was not clearly erroneous. 

 Accordingly, the judgments of the trial court are affirmed 
- 20 - 

in part, reversed in part, and remanded for a new trial, if the 

Commonwealth be so advised, on the attempted murder charges and 

the use of a firearm in the commission of attempted murder 

charge, with the jury to be instructed in accordance with this 

opinion. 

 Affirmed in part,

reversed in part,

and remanded.