COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Richmond, Virginia 

CHRIS O. TURNER, S/K/A 

 CRIST O. TURNER 

 MEMORANDUM OPINION* BY 

v. Record No. 1642-97-2 JUDGE NELSON T. OVERTON 

 AUGUST 11, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender (John H. Cobb, Jr., Public 

Defender, on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Chris Turner (defendant) was convicted by a jury of murder 

of the second degree and received forty years imprisonment. On 

appeal, he contends four black members of the venire which 

eventually composed his jury were stricken by the prosecution 

because of their race. Defendant ascribes error to the trial 

court's ruling that he did not make out a prima facie case of 

discrimination so as to require the prosecution to identify a 

race-neutral reason for the strikes. Because we agree defendant 

made out a prima facie case, we reverse and remand. 

 The parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedental 

value, no recitation of the facts is necessary. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 The legal issue involved is a narrow one. In Batson v. 

Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court 

held purposeful discrimination based on race in selecting jurors 

violates the Equal Protection Clause. The procedure for 

challenging strikes believed to violate Batson is strictly 

circumscribed. 

 The opponent of a peremptory challenge must 

establish a prima facie case of 

discrimination (step 1); once a prima facie

case is made, the burden of production shifts 

to the proponent of the strike to produce a 

race-neutral or . . . gender-neutral 

explanation (step 2); if a [facially] 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). 

Riley v. Commonwealth, 21 Va. App. 330, 333, 464 S.E.2d 508, 509 

(1995). The trial court ruled defendant failed to complete step 

one: establishing a prima facie case of discrimination. The 

Commonwealth, therefore, was never forced to divulge a 

race-neutral reason for the strikes. 

 The Supreme Court of the United States has roughly 

delineated what constitutes a prima facie case. 

 To establish . . . a case [of purposeful 

discrimination in the selection of the jury], 

the [moving party] first must show that he is 

a member of a cognizable racial group, . . . 

and that the [opposing party] has exercised 

peremptory challenges to remove from the 

venire members of the [moving party's] race. 

 Second, the [moving party] is entitled to 

rely on the fact, as to which there can be no 

dispute, that peremptory challenges 

constitute a jury selection practice that 

permits "those to discriminate who are of a 

mind to discriminate." . . . Finally, the 
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[moving party] must show that these facts and 

any other relevant circumstances raise an 

inference that the [opposing party] used that 

practice to exclude the veniremen from 

the . . . jury on account of their race. 

This combination of factors in the empaneling 

of the . . . jury, as in the selection of the 

venire, raises the necessary inference of 

purposeful discrimination. 

Batson, 476 U.S. at 96-97 (citations omitted). Defendant clearly 

met the first two parts of this inquiry: defendant himself is 

black and all four veniremen who were removed were also black. 

It was the third part, however, that the trial court found 

wanting. Because the jury remained predominantly black, the 

court ruled a prima facie case was not established. 

 After both parties exercised their peremptory strikes, the 

jury was 58% black, down from 75% before the strikes. While the 

numbers are important, "the mere inclusion of blacks on a jury 

does not automatically preclude a finding of a prima facie case." 

Jackson v. Commonwealth, 8 Va. App. 176, 183, 380 S.E.2d 1, 4, 

aff'd, 9 Va. App. 169, 384 S.E.2d 343 (1989) (en banc). See also

Taitano v. Commonwealth, 4 Va. App. 342, 347, 358 S.E.2d 590, 592 

(1987) (prima facie case was established even though blacks 

remained on jury). Two other "relevant circumstances" which 

raise an inference of discriminatory action include: (1) whether 

the Commonwealth used a disproportionate number of strikes 

against blacks and (2) the quality and quantity of the 

Commonwealth's attorney's questions and statements during voir

dire examination and in exercising his challenges. See Jackson, 
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8 Va. App. at 183, 380 S.E.2d at 4 (citing Batson, 476 U.S. at 

96-97). 

 In the instant matter, the Commonwealth used 100% of its 

strikes against black veniremen. This was a disproportionate 

number. See Jackson, 8 Va. App. at 184, 380 S.E.2d at 5 (using 

three out of four strikes against blacks was disproportionate). 

Further, the Commonwealth's attorney asked only two questions 

during voir dire. He asked whether any members of the venire had 

any family member or friend who was killed or murdered. The four 

veniremen who responded affirmatively to this question were not 

struck by the Commonwealth. He also asked whether any juror felt 

he could not look at pictures of the victim. None of the venire 

responded affirmatively to this question. The lack of meaningful 

voir dire suggests the Commonwealth's attorney had no information 

upon which to make a rational jury selection and raises the 

inference he reverted to striking veniremen based on race. 

Finally, the group which was struck was not alike in either age, 

gender or any other recognizable way. 

 We conclude the defendant made out a prima facie case of 

discriminatory action by the Commonwealth. The burden was then 

on the Commonwealth to rebut the presumption by offering a 

race-neutral reason for the peremptory strikes. The trial 

court's ruling that the Commonwealth need not rebut the inference 

was error. We reverse defendant's conviction and remand the case 

for a new trial if the Commonwealth be so advised. 
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 Reversed and remanded.