COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Alston and Senior Judge Fr ank Argued at Norfolk, Virginia

JOHN PARIS STEVENS OPINION BY v. Record No. 1926-17-1 JUDGE ROSSI E D. ALSTON, JR. MAY 7, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, III, Judge J. Barry McCracken, Assistant P ublic Defender, for appellant. Rosemary V. Bourne, Senior Assi stant Attorney General (Mark R

. Herring, Attorney General, on brief), for appellee.

John Paris Stevens (“appellant”) a ppeals his convictions for ro bbery, burglary of a bank while armed, and use of a firearm in the commission of a felony , asserting that the Circuit Court of the City of Norfolk (“trial court”) erred by sustaining the Commonwealth’s “reverse-Batson challenge” (hereinafter “McCo llum challenge”) to one of his per emptory strikes. For the reasons stated below, we disagree and affirm his convictions.
B ACKGROUND 1 On May 29, 2015, appellant entered a bank in the City of Norfol k, and after threatening a teller with a firearm, demanded cash from the teller. The tell er complied, and appellant left the bank with a substantial amount of money. Appellant was indicte d by a grand jury a few months later, and his case was set for a jury trial.

1 Only facts pertinent to appellan t’s assignment of error will b e discussed in detail.PUBLISHED- 2 - The initial venire panel of prospective jurors was comprised of 30 individuals. After the trial court granted several str ikes for cause, 23 individuals r emained. 2 The parties then exercised their peremptory strikes. After the Commonwealth struck multip le African-American jurors, appellant challenged the strik es pursuant to Batson v. Kentucky , 476 U.S. 79 (1986) (hereinafter “Batson challenge”). The trial c ourt overruled appellant’s Bat son challenges, stating that the Commonwealth had “articulated [] racially neutral reason[s] in terms of trial strategy.” 3 Defense counsel had used all five peremptory strikes on Caucas ian jurors. The Commonwealth objected to these str ikes through a McCollum chall enge, stating that “they’re all white individuals, some of who m said nothing when they were que stioned, or virtually nothing.” Defense counsel immediately tende red a race-neutral explanationfor each strike. A t issue in this appeal is counsel’s explan ation regarding Juror #1. 4 Regarding Juror #1, defense counsel stated [w]e got nothing. We got no response from her whatsoever. We saw her sitting. She seeme d to be paying attention, looking, listening to what everyone was saying and those kind of things. But mostly we struck number 1 b ecause we couldn’t get a read on her one way or the other. In terms of the scientific evidence question, she just did not respond. So we had some things we liked about some other folks , but we didn’t know anything about her, so we struck her because of her lack of a response.

2 The record does not provide a co mprehensive statement of the d emographics of the venire. For purposes of the analy tical framework for this appe al, this absence has no effect, but it could certainly be relevant in other cases.

3 The trial court’s ruling on appe llant’s Batson challenges is n ot before us.

4 Defense counsel’s reasons for str iking the other Caucasian jur ors included that one “was giving dirty looks to [appellant ],” one had served on a jury a few weeks prior and it was unknown how he had voted, another was familiar with the investi gating detective, and another had a close relative in the Nor folk Sheriff’s Department. The trial court overruled the Commonwealth’s McCollum challenge to each of these jurors.- 3 - The Commonwealth responded tha t multiple prospective African-A merican jurors had exhibited the same behavior, and a sserted that defense counsel’ s race-neutral explanation for the strike was pretextual. Defense counsel further explai ned that he struck Juror #1 beca use [t]he demeanor issue was a lack of any kind of response to any of the questions that we asked. I didn’t see any facial expressio ns or anything of that nature. I got t o say she seemed to be paying attention, but I just couldn’t te ll, because I couldn’t get a r ead on her. She didn’t respond one wa y or another to any of the quest ions that we were asking. When other folks responded, her demeanor was unreadable. Couldn’t tell on e way or the other if she was engaged or not engaged. She seemed to be paying attention because her eyes were open. She was awake. She was moving her head around and looking at thi ngs, but judge, I just could not tell if she was really engaged in the pr ocess or not because of a lack of response. After considering the arguments , the trial court ruled that de fense counsel’s strike of Juror #1 was improper and resto red Juror #1 to the venire panel . The trial court reasoned “that none of the questions were direct ed to her specifically” and th at “she did not give nonverbal queues [sic] by her demeanor.” 5 A trial on appellant’s charges w as held and ultimately the jury convicted appellant, and this appeal followed. Before we turn to an analysis of appellant’s arguments, a thor ough review of Batson’s historical underpinnings and proge ny, as well as its importance in safeguarding the fairness of the jury trial, is warranted.

5 The trial court also stated tha t it declined “to find that’s asufficient reason to strike her for cause.” It is clear from th e record that the discussion onthe issues presented was related to appellant’s peremptory strikes . This misstatement is germane t o the second aspect of appellant’s assignment of error.- 4 - A. The Origins and Fundamental Aspects of the Jury Trial No comprehensive discussion of the circumstances relating to th e underpinnings of a fair criminal jury trial can begi n without understa nding its foundat ions. The right t o a trial by jury in a criminal proceeding finds its roots in early English common l aw. See Swain v. Alabama, 380 U.S. 202, 212-14 (1965); see also 4 William Blackstone, Comment aries, *349 (recognizing that “[t]he right of trial by jur y . . . is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Ch arter”). As with m any other rights and provisions derived from English customs, the Framers of the Constitution placed paramount importance on the individual’s right to a trial by a jury of hi s peers. See Crawford v. Washington, 541 U.S. 36, 67 (2004). 6 The Sixth Amendment provides, in r elevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime” o ccurred. U.S. Const. amend. VI. Attorneys engage in a process called voir dire , essentially translated as “t o speak the truth,” wherein poten tial jurors are questioned about their ability t o be fair and impartial. In Vi rginia, Code § 19.2-262 provides that a jury in a felony trial shall be comprised of 12 people, selec ted from a venire panel of “not less than 20.” During voir dire , the parties and the trial j udge both question the venire of p rospective jurors, and the parties strike pr ospective jurors “for cause” i f “the juror’s views would prevent or substantially impair the performance of his duties as a juror i n accordance with his instructions and his oath.” Wainwrig ht v. Witt, 469 U.S. 412, 424 (1984); s ee also Code § 8.01-358; Rule

6 The Framers “knew that judges , like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys [the notorious ‘hanging judge’] were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. ” Crawford, 541 U.S. at 67 (citin g the Sixth and Seventh Amendments to the United States Constitution).- 5 - 3A:14. Then, the parties exercise their peremptory strikes to remove individuals from the venire that they believe will be biased toward or less sympathetic to their case. Peremptory strikes also find their origins in English law . See 4 Blackstone, supra, at*336, *348 (quoting a 1531 statute which stated that “no person, a rraigned for felony, can be admi tted to make any more than twenty peremptory challenges”). A peremptory strike is utilize d “not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the e vidence placed before them, an d not otherwise.” Swain, 380 U.S.
at 219.
Voir dire undeniably constitutes a vitally important component of the ju ry system. That vital component, however, has long been prone to certain abuses , some so severe that they threatened to permanently taint t he fabric of our nation’s judi cial system, and risked irreversibly undermining public confidence in its fairness. Today, our judi cial system embraces the fundamental principle that the accused has “the right to be tri ed by a jury whose members are selected pursuant to nondiscrimi natory criteria.” Batson, 476 U.S. at 85-86 (citing Martin v. Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 33 9, 344-45 (1879)); see also Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J. , dissenting) (recognizing that an individual’s race “simply is unrel ated to his fitness as a juro r”). The juror discrimination test enunciated in Batson – the Batson c hallenge – is an important, prophylactic safeguard. However, it took a number of legal developments to establish it

. B. Discrimination in Jury Selection and the Early Efforts at Eradication While society clings to the notion that “[o]ur Constitution is colorblind, and neither knows nor tolerates classes am ong citizens,” Plessy v. Ferguson , 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), it is i mperative that we acknowledge our country’s past horrific conduct and contempt towards African‐A mericans. See, e.g., Virginia v. Black, 538 U.S. 343, 352-57- 6 - (2003) (noting that various forms of violence, including floggi ng, murder, and cross burning, were utilized as methods to intim idate African-Americans who so ught integration and participation in the political process); Loving v. Virginia, 38 8 U.S. 1, 11 n.11 (1967) (recognizing that the statutor y “prohibit[ion against] only int erracial marriages involving white persons,” while permitting African‐Americans and other “nonwhit e[s]” to “intermarry without statutory interference,” “demons trate[d] that the racial classi fications” were unconstitutional “measures designed to maintain White Supremacy”); Brown v. Bd. of Educ., 347 U.S. 483, 490 (1954) (observing that “[e]ducati on of [African‐Americans in th e South] was almost nonexistent . . . [and] was forbidden by l aw in some states”). Even after the end of the Civil Wa r, the ratification of the Ci vil War Amendments, and the efforts of Reconstruction, Afr ican-Americans regularly expe rienced extensive forms of hateful discrimination, both abstr act and direct. Southern sta te legislatures, refusing to accept the outcome of the Civil War, engine ered vast schemes of laws and r egulations that hindered the advancement of the African-American people. Today, we colloqui ally refer to these as Jim Crow laws – discriminatory tactic s specifically designed to min imize the status of the African-American people in nearl y all areas of society, most no tably the “separate but equal” concept applied to public facili ties, transportation, and schoo ls. See Boynton v. Virginia, 364 U.S. 454, 462-63 (1960) (holding that segregation in public bus terminals is unlawful); Brown, 347 U.S. at 495 (holding that segr egation in public education i s unconstitutional); Simkins v. City of Greensboro, 246 F.2d 425, 426 (4th Cir. 1957) ( per curiam ) (enjoining segregation of a public golf course); Willis v. Pickrick Rest., 231 F.Supp. 396, 401-02 (N.D. Ga. 1964) (enjoining restaurant owner from refusing s ervice to African-Americans). Another way of thwarting the rights of African-Americans was to preclude them from serving o n juries.- 7 - In 1879, shortly after the end of R econstruction and at the daw n of the Jim Crow era, an African-American man named Taylo r Strauder challenged his murde r conviction, asserting a violation of his Fourteenth Amend ment right to e qual protectionafter an all-white jury had sentenced him to death. Straude r v. West Virginia, 100 U.S. 30 3, 304 (1880). West Virginia by statute had established that “[ a]ll white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.” 1872-73 W. Va. Acts 102. Because no other statute existed governing th e composition of juries, this allowed only for the possibility of an all-white male jury in e very criminal trial. See Strauder, 100 U.S. at 305. Suspecting that the jury’s racial homogeneity had unfairly deprived him of a fair trial, Strauder appealed the matter to the United States S upreme Court, which granted
certiorari

. In its analysis in Strauder, the Supreme Court directly address ed the Fourteenth Amendment’s purpose and intent, ho lding that “[i]t was designed to assure to the [African-American] race the enjoyment of all the civil rights t hat under the law are enjoyed by white persons, and to give to that race the protection of the g eneral government . . . whenever it should be denied by the States. ” Id. at 306. In identifying t hose protections, the Court determined that the Fourteenth Amendment granted African-Americ ans a “positive immunity,” which it defined as, “the right to exemption from unfriendly le gislation against them distinctively . . . implying inferiority in civ il society.” Id. at 307-08. Based upon that standard, the Court concluded that the blatantl y discriminatory nature of the West Virginia statute “amount [ed] to a denial of the equal protection of the laws to [an African-American] man when he i s put upon trial for an alleged offence against the State.” Id. at 310. Strauder represented a pivotal first step in “the Court’s unceasing efforts to eradicate racial discrimination in the procedures ” to select a jury. Batson, 47 6 U.S. at 85.- 8 - The next significant case addr essing discrimination in jury sel ection occurred during another particularly tumult uous time in our nation’s history. In 1965, the Supreme Court decided Swain v. Alabama, one year after the enactment of the Civil Rig hts Act of 1964 and during the height of the civil rights move ment which captivated the 1960s. In Swain, the Court began by traci ng the legal history of racia l discrimination in jury selection following its decisi on in Strauder more than 80 years earlier. 7 Swain, 380 U.S. at 205. The first issue in Swain involve d a challenge to Alabama’s proc edure for compiling its jury lists. Id. The Alabama statute at thattime provided that “jury rolls ” would be comprised of “all male citizens in the community ove r 21 who are reputed to be honest, intelligent men and are esteemed for their integr ity, good character and sound judgment .” Ala. Code, Tit. 30, §§ 20, 21 (1958). Each jury roll containe d approximately 2,500 names, an d then a commissioner would create jury lists of “qualified” individuals, drawing from a va riety of sources such as “city directories, registration lists , club and church lists, convers ations with other persons in the community, both white and [African -American], and personal and business acquaintances.” Swain, 380 U.S. at 207. The “[v]enires drawn from the jury box made up in this manner unquestionably contained a smalle r proportion of the [African-A merican] community than of the white community.” Id. at 208. How ever, the Court hesitated to declare that these venire panels were the result of purposeful di scrimination, commenting that t he process “was somewhat

7 The Court identified several cases that had continued to devel op this area of law but had not endeavored to craft a reme dy for the issue. See Carter v. Texas, 177 U.S. 442, 447 (1900) (extending the reasoning of Strauder to grand juries); Smith v. Texas, 311 U.S. 128, 130 (1940) (stating that racial discrimina tion in jury service “is at war with our basic concepts of a democratic society and a represe ntative government”); Cassell v . Texas, 339 U.S. 282, 286 (1950) (noting that jurors are e valuated “on the basis of indiv idual qualifications, and not as members of a race”); Hernandez v. Texas, 347 U.S. 475, 478 (195 4) (extending the reasoning of Strauder to “other groups whic h need the same protection”).- 9 - haphazard and little effort was made to ensure that all groups in the community were fully represented.” Id. at 209. The second issue raised in Swain w as a direct precursor to the crux of Batson – specifically, whether the prosecu tion violated t he Fourteenth A mendment because it exercised its peremptory strikes on all six Afr ican-Americans in the venire p anel. Id. at 210. Although the issue was squarely before the C ourt, the Court resolved the mat ter on a technicality, stating that an insufficient record preclude d it from evaluating the claim. Id. at 224. Instead, the Court opined that in future cases, a “F ourteenth Amendment claim take s on added significance” if, “in case after case,” it is shown that the prosecution had systemat ically removed African-Americans who otherwise seem qualified to serve as jurors. Id. at 223. The Court wrote: [i]f the State has not seen fit to leave a single [African-American] on any jury in a criminal case, t he presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that [African-Americans] are excluded from juries for reasons wholly unrel ated to the outcome of the parti cular case on trial and that the peremp tory system is being used to d eny the [African-American] the same right and opportunity to participate in the administr ation of justice enjoyed by the whi te population. Id. at 224 (emphasis added). The Court concluded that “the de fendant must, to pose the issue , show the prosecutor’s systematic use of peremptory challenges agai nst [African-Americans] over a period of time ” and that the defendant must also “ establish on the record the prosecutor’s conduct in this regard, especially where the same prosecutor for many years is said to be responsib le for this practice and is quite available for questioning on this matter .” Id. at 227-28 (emphasis added). The Court held that Swain’s claim failed despite acknowledging “tha t there ha[d] not been [an African-American] on a jury in Ta lladega County since about 195 0.” Id. at 226.- 10 - The extraordinarily difficult a nd amorphous threshold imposed b y Swain ultimately proved ineffectual in curtaili ng the pervasive nature of the pr oblem. The Supreme Court later described Swain’s standard as “d ifficult to the point of unwork able.” Miller-El v. Dretke, 545 U.S. 231, 239 (2005). One Massachus etts court pronounced the d efendant’s burden as “Sisyphean” (as in a task that c an never be completed), Commonw ealth v. Soares, 387 N.E.2d 499, 509 n.10 (Mass. 1979), and in another case, the Second Cir cuit characterized it as “Mission Impossible,” McCray v. Abrams, 750 F.2d 1113, 1120 (2d Cir. 198 4). As such, Swain’s methodology became an untenable response to di scrimination against African-American jurors. C. Batson v. Kentucky After recognizing the deficien cies of Swain, the Supreme Court decided the case which currently serves as the guidepos t for eradicating racial discri mination in jury selection, in which it reevaluated “the evidentiar y burden” that Swain required of criminal defendants. Batson, 476
U.S. at 82. James Batson was charged wit h burglary and receiving stolen goo ds, and at his jury trial, the prosecutor used peremptor y strikes on the on ly four African -Americans in the venire panel. Id. at 82-83. Batson’s attorney r equested a mistrial on the gr ounds that the prosecution’s peremptory strikes violated Bat son’s Sixth and Fourteenth Amend ment rights. Id. at 83. The trial court denied the motion, s tating that parties may use per emptory strikes to “strike anybody they want to.” Id. at 83. Bats on appealed to the Supreme Court of Kentucky, and lost, having failed to conquer the Everest-li ke standard defined in Swain. Id. at 83-84. In reading Batson, it is quite clear that th e Supreme Court hadlong-desired to reconsider Swain. In the majority opinion c onsisting of six justices, Jus tice Powell declared unequivocally that “the Equal Protection Clause forbids the prosecutor to cha llenge potential jurors solely on- 11 - account of their race or on the assumption that [African-Americ an] jurors as a group will be unable impartially to consider th e State’s case against [an Afr ican-American] defendant.” Id. at 89. The Court recognized that “Swain ha[d] placed on defendant s a crippling burden of proof, [rendering] prosecutors’ peremp tory challenges . . . largely im mune from constitutional scrutiny.” Id. at 92-93. To address the problem in Swa in, the Court relied upon a recent precedent in which it had held that “a consistent patter n of official racial discriminati on” was not necessary to establish a Fourteenth Amendment violation, r easoning that “[a] single invi diously discriminatory governmental act” should not be “ immunized by the absence of su ch discrimination in the making of other comparable decisi ons.” Id. at 95-96 (quoting V ill. of Arlington Heights v. Metro. Hous. Dep’t Corp., 429 U.S. 252, 266 n.14 (1977)). 8 The Court definitively overruled Swain, holding that “a defendant may make a prima facie showing of purposeful racial discrimination in selection of t he venire by relying solely on the facts concerning its selection in his case .” Id. at 95 (emphasis in original). D. The Batson Challenge: A Legal Process Once the Court eliminated the pr oblematic Swai n standard, it ar ticulated the multi-step process that courts now commonl y refer to as the Batson challen ge, and its implication in the use of preemptory strikes. We a ddress each step in detail. 1. Step One: The Defendant Makes a Prima Facie Case of Discrimination “To establish a [ prima facie ] case, the defendant first must show that he is a member of a cognizable racial group, and that th e prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 96 (i nternal citation omitted). Next,

8 The Court also highlighted sev eral other post-Swain decisions that had contributed to the formulation of the factors that would encompass the Batson challenge itself. 476 U.S. at 93-96.- 12 - “the defendant must show that th ese facts and any other relevan t circumstances raise an inference that the prosecutor used that pr actice to exclude [those member s] . . . on account of their race.” Id. 9 Additionally, we note that the p rinciple is no longer confined to that factual scenario and a Batson challenge is viable in anumber of other circumstances . See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) ( holding that Batson also a pplies to gender-based discrimination); Edmonson v. Leesville Concrete Co., 500 U.S. 6 14, 630 (1991) (holding “that courts must entertain a [Bats on] challenge . . . in a civil tri al”); Powers v. Ohio, 499 U.S. 400, 416 (1991) (holding that “race is irre levant to a defendant’s s tanding to object to the discriminatory use of peremptory challenges”). 2. Step Two: The Burden Shifts “Once the defendant makes a prima facie showing, the burden shifts to the [prosecution],” to respond “with aneutral explanation for chal lenging [African -American] jurors.” 476 U.S. at 97. Specifically, the prosecution “must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercisin g the challenge[].” Id. at 98 (quoting Texas Dep’t of Cmt’y Affairs v. Burdine, 450 U.S. 248, 258 (1981)). “[T]he prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenge d jurors of the defendant’s rac e . . . [on the basis] that they would be partial to the defendant because of their shared race.” Id. at 97. “Nor may the prosecutor

9 We also note that a Batson chall enge remains viable even if “S tep One” is not completed and a party does not put forth a prima facie case of racial discrimination – if the opposing party immediately jumps t o “Step Two” and articulates a race-neutral e xplanation, the issue is moot. See Barksdal e v. Commonwealth, 17 Va. App. 456, 459 (1993) ( en banc ). The Supreme Court of Virginia has ru led that the defect “was waived and became irrelevant” when the party “undertook to articulat e reasons for [a strike] witho ut first raising t he procedural issue” to the trial court. F aison v. Hudson, 243 Va. 397, 402 (1992) (citing U.S. v. Lane, 866 F.2d 103, 105 (4th Cir. 1989)).- 13 - rebut the defendant’s case me rely by denying that he had a disc riminatory motive or ‘affirm[ing] his good faith in making individu al selections.’” Id. at 98 (q uoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972)). Instead, the “neutral explanation [must be] related to the particular case to be tried.” Id. 3. Step Three: The Defendant May Argue Pretext Finally, the defendant, relying upon “all relevant circumstance s,” may argue that the prosecutor’s neutral explanati on is pretextual . Miller-El, 545 U.S. at 240 (quoting Batson, 476 U.S. at 96-98). 10 The Court was concerned that “B atson’s individualized focus c ame with a weakness of its own owing to its v ery emphasis on the particula r reasons a prosecutor might give.” Id. For “[i]f any facia lly neutral reason sufficed to” undermine the defendant’s claim, “then Batson would not amount to much more than Swain.” Id. 11

10 Although “Step Three” is not explic itly described within Batso n, the Court felt compelled to remedy the problematic jurisprudence of the late 1 980s and early 1990s, which “consist[ed] of a torrent of d ecisions restricting the applicat ion of Batson, finding Batson challenges to have been waived, or finding Batson challenges to have been without merit under the restrictive applications of Batson established by the circu it courts.” Mikal C. Watts & Emily C. Jeffcott, A Primer on Batson, Including Discussion of Johnson v. California, Miller-El v. Dretke, Rice v. Collins, & Snyder v. Louisiana, 42 St. Mary’s L .J. 337, 341-42 (2011). This development also came in r esponse to Hernandez v. New York , 500 U.S. 352 (1991), a splintered decision in whi ch the Court tangled the le vel of specificity required in the prosecution’s race-neutral expl anation. See Hernandez, 500 U.S . at 360. One justice characterized Hernandez as mak ing “the surprising announcement that any neutral explanation, no matter how ‘implausible or fan tastic,’ even if it is ‘silly or superstitious,’ is sufficient to rebut a prima facie case of discrimination. ” Purkett v. Elem, 514 U.S. 765, 775 ( 1995) ( per curiam ) (Stevens, J., dissenting).

11 The Court thus strengthened t he safeguard of Batson and remove d any remaining similarity with Swain, recognizi ng that “[s]ome stated reasons are false, and although some false reasons are shown up within the four corners of a given case, s ometimes a court may not be sure unless it looks beyond the case at hand.” Miller-El, 545 U.S. at 240. “A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance doe s not fade because a trial j udge, or an appeals court, can imagine a reason that might not have been shown up as false.” Id. at 252.- 14 - 4. The Trial Court Assess es the Issues Joined At this point in the Batson inqui ry, the trial court, in consid ering whether the defendant has established racial discrimi nation, “should consider all rel evant circumstances,” including but not limited to, “a ‘pattern’ of str ikes against [African-Americ an] jurors,” or “the prosecutor’s questions and statements during voir dire examination and in exercisi ng his challenges.” Batson, 476 U.S. at 96-97. In other words, t he trial court is not limi ted in what it could potentially identify as sufficient evidence of racial discrimination. See Johnson v. California, 545 U.S. 162, 169 (2005). E. Georgia v. McCollum – The Prosecution’s Derivative Constitutional Right The Supreme Court has further ruled that the prosecution is ent itled to claim that a criminal defendant has impermissibly applied his peremptory str ikes. See Georgia v. McCollum, 505 U.S. 42, 55-56 (1992). In McCollu m, the Court held that a criminal defendant violates the Constitution if he engages in purposeful racial discrimination when striking jur ors. Id. at 59. In reaching that holding, the C ourt found it necessary to addre ss four questions – (1) whether a criminal defenda nt’s discriminatory use of peremp tory strikes causes the same damage that Batson sought to eradi cate; (2) whether a criminal defendant’s use of peremptory strikes “constitutes state action”; (3) whether the prosecution has standing to raise a challenge; and (4) whether allowing the pr osecution to utilize the Batson process is superseded by a criminal defendant’s constitutional rights. Id. at 48. On question one, the Court recogni zed that “only one” of Batson ’s goals was safeguarding a defendant’s exposure to discrimination in t he selection of his jury and th at “denying a person participation in jury service on account of his race unconstit utionally discriminates against the excl uded juror.” Id. (citations omit ted) (emphasis added). Although an individual possesses no inhere nt right to sit on a jury in a particular case, “he or she does possess- 15 - the right not to be excluded fro m one on account of race.” Id. at 48-49 (quoting Powers, 499 U.S. at 409). The Court determin ed that the same harm addresse d in Batson was also present, for “in all cases, the juror is subjected to open and public racial discrimination.” Id. at 49. In so finding, the Court highlighted t hat “[t]he need for public conf idence is especially high in cases involving race-related crimes,” for “emotions in the affected c ommunity will inevitably be heated and volatile.” Id. Turning to the second question, th e Court first noted that “[r] acial discrimination, although repugnant in all contexts, violates the Constitution o nly when it is attributable to state action.” Id. at 50 (citing Moose Lodge No. 107 v. Irvis, 407 U .S. 163, 172 (1972)). Thus arose the unusual inquiry of whether a c riminal defendant’s use of a peremptory strike is a “state action” for purposes of an Equal Protection Clause analysis. I d. In answering in the affirmative, the Court primarily relied upon Edmonson v. Leesville Concrete, in which it extended Batson to civil actions and had considered w hether a private party may be considered a state actor. Id. at 50-51. The Court reasoned that beca use peremptory strikes find their basis in state authority, as they are conferred either by statute or common law and not by t he Constitution, an individual’s constitutional deprivation resul ting from a peremptory strike c an, in essence, be traced to the state. Id. at 51. The Court stat ed that when a defendant uses a peremptory strike to form a jury, he “is wielding the power to choos e a quintessential government al body . . . on which our judicial system depends.” Id. a t 54. Thus, the Court conclude d that a criminal defendant, having been vested with “the power to c hoose the government’s employee s or officials,” is “bound by the constitutional mandate of race neutrality.” Id. (quoting E dmonson, 500 U.S. at 625). In question three, the Court cons idered whether the prosecutionhas standing to challenge a defendant’s allegedly discr iminatory strikes. Id. at 55. Th e Court reasoned that it does, determining that the government su ffers a cognizable injury if “the fairness and integrity of its- 16 - own judicial process is undermined ” and that “[a]s the represen tative of all its citizens, the State is the logical and proper party to assert the invasion of the c onstitutional rights of the excluded jurors in a criminal trial.” Id. at 56. The Court bolstered t his conclusion by referencing the “daunting” obstacles facing a n excluded juror should he or she independently seek legal recourse. Id. Finally, with regard to question f our, the Court held that the protections sought by Batson are not weakened by allowing the prosecution to question the pe remptory strikes of a criminal defendant. Id. at 57-58. The Court reasoned that determining otherwise would “undermine the contribution of the peremptory c hallenge to the administration of justice.” Id. at 57. According to the Court, “if race stereotypes are the price for acceptance of a jury panel as fair,” that “price is too high to meet the standa rd of the Constitution.” Id. (qu oting Edmonson, 500 U.S. at 630). As such, the Court held that defe nse attorneys are limited to “ legitimate, lawful conduct.” Id. (quoting Nix v. Whiteside, 475 U.S. 157, 166 (1986)). Accordingly, in a McCollum challenge, the prosecution may use t he Batson process to remedy alleged discrimination in adefendant’s peremptory strik es. A

NALYSIS This Court has recently re-empha sized the deference given to tr ial courts in matters of jury selection, reasoning that it “stems fro m [the appellate co urt’s] recognition th at ‘a trial judge who personally observes a juror, i ncluding the juror’s tenor, t one, and general demeanor, is in a better position than an appellate c ourt to determine whether a particular juror should be stricken.’” Hopson v. Commonwealth, 52 Va. App. 144, 151 (2008 ) (quoting Teleguz v. Commonwealth, 273 Va. 458, 475 (2007)). The “trial court has a pivotal role in evaluating . . . not only whether the prosecutor’s demeanor belies a discriminat ory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the bas is for the strike.” Snyder v.- 17 - Louisiana, 552 U.S. 472, 477 (2008). 12 Thus, the issue of whether a defendant establishes purposeful discrimination “turn s on factual determinations.” F oster v. Chatman, 136 S. Ct. 1737, 1747 (2016). “Appellate judges canno t on the basis of a cold r ecord easily second-guess a trial judge’s decision about likely mo tivation.” Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015) (quoting Rice v. Collins, 546 U.S. 333, 343 (2006) (Breyer, J., concurring)). For those reasons, we will not reverse the trial c ourt unless its decision was “cl early erroneous.” Avent v. Commonwealth, 279 Va. 175, 196 (2010) ( quoting Jackson v. Commo nwealth, 266 Va. 423, 437 (2003)). Appellant contends that the tria l court erred in sustaining the Commonwealth’s McCollum challenge to defense counsel’s peremptory strike of Ju ror #1, and further that the trial court applied an incorrect leg al standard in its ruling. To argue a McCollum challenge, t he Commonwealth assumes the rol e of the defendant in a standard Batson challenge, and must make a prima facie showing that the peremptory strike was made on racial grounds. At that po int, the burden shifts to th e [defendant] to produce race-neutra l explanations for striking the juror. The [Commonwealth] may then provide reasons why the [defendant’s] explanations were pretextual and the strikes were discriminatory regardless of the [defendant’s] stated explanati ons. Whether the [Commonwealth] ha s carried [its] burden of proving purposeful discrimination in the selection of the jury is then a matter to be decided by the trial court. Jackson, 266 Va. at 436 (citing B uck v. Commonwealth, 247 Va. 4 49, 450-51 (1994)). In accordance with the Batson steps, we first consider “Step On e” and determine whether the Commonwealth established a prima facie case. Here, the Comm onwealth established a

12 With that responsibility, it is imperative for trial courts to ens ure that the record in these cases is clear, well-deve loped, and that they deliver the ir rulings explicitly. See Snyder, 552 U.S. at 479-86 (wherein the Cour t refused to defer to a tri al court’s credibi lity determination because the trial court had failed to provide a specific ruling on the record).- 18 - prima facie case when it alerted the trial c ourt of its intent to challeng e appellant’s peremptory strikes, stating that “they’re all white individuals, some of w hom said nothing when they were questioned, or virtually nothing.” The Commonwealth highlighte d that all five of appellant’s peremptory strikes were applie d to Caucasian jurors, thus raisi ng an inference that the strikes were racially motivated. 13 “Step Two,” a critical junctur e of Batson, requires that the c hallenged party, in this case appellant, “produce race-neutral explanations for striking the juror.” Jackson, 266 Va. at 436. Here, appellant argued to the trial court that he struck Juror #1 because [w]e got nothing. We got no response from her whatsoever. We saw her sitting. She seeme d to be paying attention, looking, listening to what everyone was saying and those kind of things. But mostly we struck number 1 b ecause we couldn’t get a read on her one way or the other. In terms of the scientific evidence question, she just did not respond. So we had some things we liked about some other folks , but we didn’t know anything about her, so we struck her because of her lack of a response. Finally, in “Step Three,” the Commonwealth argued that appella nt’s purported race-neutral explanation was pr etextual. The Commonwealth cont ended that multiple other prospective jurors, all of whom were African-American, had exhi bited demeanor and responsiveness id entical to that of Juror #1, casting doubt upo n the legitimacy of appellant’s race-neutral explanation. Appellant responded, stating [t]he demeanor issue was a lack of any kind of response to any of the questions that we asked. I didn’t see any facial expressio ns or anything of that nature. I got t o say she seemed to be paying attention, but I just couldn’t te ll, because I couldn’t get a r ead on her. She didn’t respond one wa y or another to any of the quest ions that we were asking. When other folks responded, her demeanor was unreadable. Couldn’t tell on e way or the other if she was

13 It is important to reiterate that to assert that a Batson or M cCollum challenge is deficient on the grounds that the opposing party did not put fo rth a sufficient prima facie case, the striking party must not proc eed directly to “Step Two,” butrather must demand that “Step One” be consummated at that moment. See Barksdale, 17 Va. App. at 459; see also supra n.9 and accompanying text.- 19 - engaged or not engaged. She seemed to be paying attention because her eyes were open. She was awake. She was moving her head around and looking at thi ngs, but judge, I just could not tell if she was really engaged in the pr ocess or not because of a lack of response. Through that statement, appellan t in essence rephrased his fir st explanation without providing new information or insight. The trial court determined that appellant’s strike of Juror #1 was improper, reasoning that Juror #1’s non-responsiveness wa s probably the result of the fa ct that no question was ever directed to her individually. Si gnificantly, appellant never a sked Juror #1 any specific questions about her background, beliefs, or b iases. She was only subjectto the general questions directed toward the entire venire panel of prospective jurors. Furtherm ore, according to the trial court, Juror #1 did not exhibit any non- verbal body language or other physical signals that could potentially have displayed bi as or a visceral reaction to one o f the questions. Upon our deferential review of the trial court’s findings, we are also unpersuaded by appellant’s argument and see no reason to disturb the trial cou rt’s ruling. On brief, appellant asserts that his strike of J uror #1 was valid because “it is ap propriate to rem ove a juror whom counsel deems to have displayed disi nterest in the case or abou t whom there is uncertainty as to her level of engagement” during voir dire . However, contrary to that statement, a reasonable reading of the record suggests that Juror #1 was alert and atte ntive during voir dire and had listened carefully to the questions asked by counsel. “Batson places upon the trial courts the burden of weighing the e xplanations tendered by [attorneys] justifying their use of peremptory strikes, assessi ng their genuineness, and determining whether they bespea k discriminatory motives.” Winf ield v. Commonwealth, 12 Va. App. 446, 453 (1991) (emphasis added). Appellate courts mu st thus give “[d]eference to trial court findings on the issue of discriminatory intent . . . because, as [was] noted in Batson,- 20 - the finding ‘largely will turn on e valuation of credibility.’” Hernandez v. New York, 500 U.S. 352, 365 (1991) (quoting Batson, 476 U.S . at 98). Here, the tr ial court was in the sole position to observe Juror #1 during voir dire , as well as defense counsel as he tendered his arguments. Defense counsel’s purported race-n eutral explanation that he “c ouldn’t get a read on [Juror #1]” was unconvincing to the trial co urt. This Court cannot and sho uld not substitute its judgment for that of the trial court whe n the issue rests so heavily upon di rect observation and a determination of credibility. Additionally, we cannot conclude tha t the trial co urt applied the wrong legal standard when considering the Commonwealth ’s McCollum challenge, despite the trial court’s reference to striking Juror #1 “for cau se.” See Yarborough v. Commonweal th, 217 Va. 971, 978 (1977) (stating that “the judgment of a trial court comes to us on app eal with a presumption that the law was correctly applied to the fact s”). The record in this matte r definitively supports the conclusion that the trial court was considering appellant’s per emptory strikes in light of Batson and McCollum. The trial court ha d itself inquired whether “the Commonwealth [had] a Batson challenge,” and made various co mments during the arguments indi cating its awareness of the proceedings occurring before it . Thus, the balance of the reco rd demonstrates that the trial court was fully cognizant of what it w as considering. “[This Court] will not fix upon isolated statements of the trial judge tak en out of the fu ll context in which they were made, and use them as a predicate for holding the l aw has been misapplied.” Id. The mere fact that the trial court misspoke when it ruled does not r ebut the presumption of regula rity. Accordingly, the Court cannot fi nd that the tria l court’s ruli ng on the McCollum challenge was clearly errone ous, nor do we find that the trial court applied an i ncorrect legal standard. Affirmed.