COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Clements and Agee 

Argued at Richmond, Virginia 

HAYWOOD MARCUS ROBINSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1011-01-2 JUDGE ROBERT J. HUMPHREYS 

 SEPTEMBER 24, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 William P. Irwin, V (Bowen, Bryant, 

 Champlin & Carr, on brief), for appellant. 

 John H. McLees, Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General; 

Jennifer R. Franklin, Assistant Attorney 

General, on brief), for appellee. 

Haywood Marcus Robinson appeals his convictions, after a jury 

trial, for murder, malicious wounding, breaking and entering with 

intent to commit robbery or murder, and use of a firearm to commit 

murder and malicious wounding. Robinson contends that the trial 

court erred in finding the prosecutor enunciated race-neutral 

bases for its use of peremptory strikes for five black members of 

the venire. For the reasons that follow, we affirm Robinson's 

convictions. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. Further, because this opinion has 

no precedential value, we recite only those facts essential to 

our holding.
Robinson raised a Batson motion after the Commonwealth 

utilized each of its five peremptory challenges to strike five of 

the eight black jurors who were part of the 23-member venire. 

Specifically, Robinson stated, "the record will reflect the 

defendant is black. Eight of the twenty-three prospective jurors 

are black. All five of the Commonwealth's strikes are used to 

strike blacks." 

The trial court stated that it did not "believe" Robinson had 

asserted a sufficient prima facie case of discrimination but, 

nevertheless, it directed the Commonwealth to state its rationale 

for each of the strikes. After the Commonwealth stated its 

rationale for the strikes, the trial court denied Robinson's 

motion. Robinson raised no objection to the court's ruling, nor 

did he further argue the issue. 

On appeal, Robinson contends the trial court erred in 

overruling the Batson motion. We disagree. 

We recognize the well-reasoned rule that a defendant is 

constitutionally entitled to a jury panel whose members have been 

selected on a racially nondiscriminatory basis. Batson v. 

Kentucky, 476 U.S. 79, 85-86 (1986). Indeed, 

[i]n Batson, the Supreme Court stated the 

requirements for establishing a prima facie 

case of purposeful discrimination in the 

selection of a petit jury. The Court held 

that to establish such a prima facie case[:] 

"the defendant first must show that he is a 

member of a cognizable racial group . . . 

and that the prosecutor has exercised 

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peremptory challenges to remove from the 

venire members of the defendant's race. 

Second, the defendant 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 

defendant must show that these facts and any 

other relevant circumstances raise an 

inference that the prosecutor used that 

practice to exclude the veniremen from the 

petit jury on account of their race." 

Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 

(2000) (quoting Batson, 476 U.S. at 96). 

Thus, 

[a] defendant must first establish a prima

facie showing that the peremptory strike was 

made on the basis of race. At that point, 

the burden shifts to the prosecution to 

produce explanations for striking the juror 

which are race-neutral. Even if 

race-neutral, the reasons may be challenged 

by the defendant as pretextual. Finally, 

the trial court must decide whether the 

defendant has carried his burden of proving 

purposeful discrimination by the prosecutor 

in selecting the jury panel. 

Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 

(1994) (citations omitted). 

Contrary to the implication raised by Robinson, the mere fact 

that the prosecution has excluded African-Americans by using 

peremptory strikes does not itself establish a prima facie case 

under Batson. Batson, 476 U.S. at 96. Instead, a defendant must 

identify facts and circumstances that raise an inference that 

potential jurors were excluded based on their race. Id.

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We first note the apparent conflict in the trial court's 

ruling concerning whether Robinson established a prima facie case 

of discrimination. The trial court initially stated that it 

"believed" Robinson had failed to assert the appropriate prima

facie showing of purposeful discrimination. Nevertheless, the 

trial court continued the analysis as if Robinson had established 

a prima facie case, by shifting the burden of production to the 

Commonwealth, requiring it to state its rationale for the manner 

in which it exercised its peremptory challenges. In light of this 

facially conflicting analysis, we assume, without deciding, that 

Robinson established a prima facie case of purposeful 

discrimination under Batson and address the merits of his claim on 

appeal. 

The prosecutor first explained that she struck two of the 

venire members due to their criminal records. This Court has held 

that striking potential jurors because they have a criminal record 

is an objective, race-neutral reason. See Langhorne v. 

Commonwealth, 13 Va. App. 97, 107, 409 S.E.2d 476, 482 (1991).1

Further, we have recognized that striking a venireman because 

he or she lives near the scene of the crime, as long as the 

purpose is based upon a rational, race-neutral explanation, is a 

clear, specific non-racial reason for striking the potential 

 

1

 Indeed, Robinson conceded during oral argument that the 

prosecutor properly struck from the panel the members who had 

criminal records. 

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juror. See Taitano v. Commonwealth, 4 Va. App. 342, 347, 358 

S.E.2d 590, 592-93 (1987) (holding that the prosecutor's concern 

with the fact that the jurors lived near the defendant or near the 

scene of the crime, or in areas of "high crime," as well as his 

consideration of their age, dress, and demeanor, was a 

sufficiently race-neutral explanation). Here, the prosecutor 

stated that she struck a third member of the venire because of the 

venire-woman's residence near the crime scene. In particular, the 

prosecutor struck her due to the violent nature of the crime and 

the potential for her to be intimidated in reaching a finding 

concerning the murder of one of her neighbors. 

Moreover, we have found that striking jurors because they 

exhibit certain negative body language can also be an adequate, 

race-neutral explanation in the appropriate circumstances. See

Goodson v. Commonwealth, 22 Va. App. 61, 81, 467 S.E.2d 848, 858 

(1996) ("Age, education, employment, and demeanor during voir dire

may constitute race-neutral explanations for a peremptory 

strike."); see also Robertson v. Commonwealth, 18 Va. App. 635, 

640, 445 S.E.2d 713, 716 (1994). The prosecutor explained that 

she chose to strike the remaining two venire members because of 

the negative body language they exhibited during her presentation 

and voir dire of the venire. 

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. 

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This standard of review logically recognizes 

the trial court's unique 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. 

Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting 

Robertson, 18 Va. App. at 639, 445 S.E.2d at 715). Accordingly, 

we find that the trial court's decision on the ultimate decision 

of discriminatory intent in this matter was not "clearly 

erroneous". 

 In addition, as stated above, 

[i]n 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." 

Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting Chandler 

v. Commonwealth, 249 Va. 270, 277, 455 S.E.2d 219 (1995)). 

Thus, Robinson's argument that the trial court improperly ended 

its determination without considering whether the prosecutor's 

reasons were pretextual is without merit. 

 Indeed, once the prosecutor produced evidence of 

race-neutral rationale, Robinson remained charged with the 

burden of proving "that these facts and any other relevant 

circumstances raise[d] an inference that the prosecutor used 

[the stated] practice to exclude the veniremen . . . on account 

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of their race." Batson, 476 U.S. at 96. Robinson raised no 

such allegation and/or evidence of pretext. Thus, the trial 

court did not commit error in failing to consider the issue. 

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

(1995) (holding that a trial court must specifically rule on a 

defendant's allegation of pretext, when such an argument is 

raised). 

Based upon the above, we will not disturb the trial court's 

finding that the prosecutor's explanations for striking the five 

potential jurors were race-neutral, and we affirm Robinson's 

convictions. 

Affirmed.

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