COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clem ents and Agee Argued at Rich mond, 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. Sp encer, Judge William P. Irwin, V (Bowen, Bryant, Champlin & Carr, on brief), for appellant. John H. McLees, Seni or Assistan t Attorney General (Jerry W. Kilgore, Atto rney General; Jennifer R. Fr anklin, Assist ant Attorney General, on brief), for appellee.

Haywood Marcus Robins on appeals his convic tions, after a jury trial, for murder, mali cious wounding, breaking and entering with intent to commit robber y or murder, and use of a firearm to commit murder and malicious wo unding. Robinson contends that the trial court erred in findin g the prosecutor enunciated race-neutral bases for its use of peremptory strikes fo r five black members of the venire. For the re asons 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 th e Commonwealth utilized each of its fi ve peremptory challenges to strike five of the eight black ju rors who were part of the 23-membe r venire. Specifically, Ro binson stated, "the re cord will reflect the defendant is black. Eight of the twenty-thr ee prospect ive jurors are black. All five of the Comm onwealth's strike s are used to strike blacks." The trial court st ated that it did not "believe" Ro binson had asserted a sufficient prima facie case of discri mination but, nevertheless, it directed the Co mmonwealth to st ate its rationale for each of the strikes. Afte r the Commonweal th stated its rationale for th e strikes, the trial co urt denied Robinson's motion. Robinson rais ed no objectio n to the court' s ruling, nor did he further ar gue the issue. On appeal, Robinson contends the tria l court erred in overruling the Batson motion. We disagree. We recognize the well-reasoned ru le that a de fendant is constitutionally entitl ed to a jury panel wh ose members have been selected on a ra cially nondiscrim inatory ba sis. Batson v. Kentucky , 476 U.S. 79, 85-8 6 (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

- 2 -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. Co mmonwealth , 247 Va. 449, 450-51, 443 S.E.2d 414, 415 (1994) (citations omitted). Contrary to the implication ra ised 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. Inst ead, a defendant must identify facts and circumstances that raise an inference that potential jurors were excluded base d on their race. Id.

- 3 -We first note the apparent conflict in the trial court's ruling concerning whethe r Robinson established a prima facie case of discrimination. The trial court initially stat ed that it "believed" Robinson had failed to asse rt the appropriate prima facie showing of purposef ul discrimination. Neverthe less, the trial court contin ued the analysis as if Robinson had established

a prima facie case, by shifting the burd en of production to the Commonwealth, requiring it to state its rational e for the manner in which it exercised it s peremptory challenges . In light of this facially conflicting an alysis, we assume, wi thout decidi ng, that Robinson established a prima facie case of purposeful discrimination under Batson and address the meri ts of his claim on appeal. The prosecutor first explained that she struck two of the venire members due to th eir criminal records. This Court has held that striking potential jurors because they ha ve a criminal record is an objective, ra ce-neutral reason. See Langhorne v. Commonwealth , 13 Va. App. 97, 107, 40 9 S.E.2d 476, 482 (1991). 1 Further, we have reco gnized that striking a venirema n because he or she lives near the scene of the cr ime, as long as the purpose is based upon a rational, race -neutral explanation, is a clear, specific non- racial reason for st riking the potential

1 Indeed, Robinson conceded during oral argument that the prosecutor properly struck from the panel the members who had criminal records.

- 4 -juror. See Taitano v. Commonwealth , 4 Va. App. 34 2, 347, 358 S.E.2d 590, 592-93 (1 987) (holding that th e 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 cr ime," as well as his consideration of their age, dress, and demean or, was a sufficiently race-neu tral explanation). Here, the pr osecutor stated that she st ruck a third member of th e venire because of the venire-woman's residenc e near the crime scene. In part icular, the prosecutor struck her due to the violent natu re of the crime and the potential for her to be inti midated in reac hing a finding concerning the murder of one of her neighbors. Moreover, we have found that striking ju rors because they exhibit certain ne gative body lang uage can also be an adequate, race-neutral explanation in th e appropriate ci rcumstances. See Goodson v. Commonwealth , 22 Va. App. 61, 81, 467 S.E.2d 848, 858 (1996) ("Age, educat ion, employment, an d demeanor during voir dire may constitute race-neutral ex planations for a peremptory strike."); see also Robertson v. Commonwealth , 18 Va. App. 635, 640, 445 S.E.2d 713, 716 (1994). The prosec utor explained that she chose to strike th e remaining two venire members because of the negative body language they exhibited du ring 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.

- 5 -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

- 6 -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 th e trial court's finding that the prosec utor's explanations fo r striking the five potential juro rs were race-neu tral, and we affi rm Robinson's convictions. Affirmed.

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