COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

JEROME M. GORE, S/K/A 

 JEROME MAURICE GORE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1578-96-1 JUDGE RICHARD S. BRAY 

 OCTOBER 21, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 Michael Rosenberg for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Jerome M. Gore (defendant) was convicted and sentenced by a 

jury for robbery, verdicts later approved by appropriate orders 

of the trial court. Defendant complains on appeal that the trial 

court erroneously overruled his objection to the Commonwealth's 

unconstitutional exercise of peremptory challenges to remove 

black venirepersons. We agree and reverse the conviction. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the issue on appeal. 

 In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court 

reaffirmed a defendant's "right to be tried by a jury whose 

members are selected pursuant to nondiscriminatory criteria" and 

condemned the peremptory exclusion of potential jurors "on 

 

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

designated for publication. 
 2 

account of race" as violative of the Equal Protection Clause. 

Id. at 85-86. Subsequently, the Batson doctrine was extended to 

civil litigation, protecting both litigants and venirepersons 

alike from either race, Georgia v. McCollum, 505 U.S. 42 (1992); 

Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991); see 

generally Powers v. Ohio, 499 U.S. 400 (1991), or, gender-based 

discrimination in jury selection. J.E.B. v. Alabama ex rel. 

T.B., 511 U.S. 127 (1994); Riley v. Commonwealth, 21 Va. App. 

330, 464 S.E.2d 508 (1995). 

Batson and its progeny have established the protocols which 

guide a trial court's assessment of an allegedly discriminatory 

peremptory challenge. 

 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).1 

Riley, 21 Va. App. at 333, 464 S.E.2d at 509; see also James v. 

Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994). 

"A neutral explanation . . . means an explanation based on 

 

 1Although the "actual sequence of events at trial" 

oftentimes "merges the separate procedural steps" in a Batson

challenge, such "[c]onsolidation . . . does not invalidate the 

process as long as . . . [it] does not adversely impact the 

rights of any party." James v. Commonwealth, 247 Va. 459, 462, 

442 S.E.2d 396, 398 (1994). 
 3 

something other than the race of the juror." Hernandez v. New 

York, 500 U.S. 352, 360 (1991). 

 If a challenged party undertakes to explain a disputed 

strike before the trial court finds the requisite prima facie

case, step 1 is rendered moot. Barksdale v. Commonwealth, 17 Va. 

App. 456, 459, 438 S.E.2d 761, 763 (1993) (en banc) (citation 

omitted). At step 2, 

 "a court must determine whether, assuming the 

proffered reasons for the peremptory 

challenges are true, the challenges violate 

the Equal Protection Clause as a matter of 

law." If not, the "decisive question" for 

the trial judge . . . becomes "whether 

counsel's race-neutral explanation for a 

peremptory challenge should be believed," 

and, "once that has been settled, there seems 

nothing left to review." 

Id. at 459-60, 438 S.E.2d at 763 (citation omitted). 

 "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,' which should be disturbed 

only if 'clearly erroneous.'" Id. at 460, 438 S.E.2d at 763 

(citation omitted). However, if "discriminatory intent is 

inherent in the explanation," the peremptory strikes were 

unconstitutional as a matter of law and the "trial court's 

finding of 'facial neutrality' is not given deference on appeal." 

Riley, 21 Va. App. at 335, 464 S.E.2d at 510. 

 Here, the record discloses that the prosecutor exhausted 

three of four peremptory strikes on black venirepersons, 

prompting defendant, a black man, to raise a Batson objection. 
 4 

In response, the prosecutor initially "disagree[d] with [defense] 

counsel's assertions that he made a prima facie case," but, 

nevertheless, explained the disputed strikes without awaiting a 

ruling by the trial court. After first attributing the 

challenges to "lack of attention, . . . lack of interest" 

exhibited by the targeted venirepersons during voir dire, the 

prosecutor added that he "was . . . mindful of trying to reach a 

split" which would result in "a fairly even, racially balanced 

jury, . . . assum[ing] . . . that defense was not going to strike 

any black Americans, and, of course, they did." 

 Under such circumstances, the prosecutor waived the 

necessity for defendant to establish a prima facie case of 

discrimination at step 1 of the Batson analysis. The explanation 

which attended step 2 clearly and impermissibly attributed the 

strikes in issue to race, "trying to reach a split" or "racially 

balanced" jury. The prosecutor's reliance upon other facially 

race-neutral considerations "does not overcome the constitutional 

infirmity" inherent in the racially tainted challenges to the 

petit jury venire. Id. at 336, 464 S.E.2d at 510.2

 Accordingly, we must reverse the conviction and remand the 

case for a new trial if the Commonwealth be so advised. 

 

 2While the Commonwealth's contention that the prosecutor was 

merely "indicating that he would have been willing to forego his 

misgivings about some of the jurors he struck if removing them 

would have taken too many blacks off the jury" may be true and 

would explain the trial court's ruling, it is without support in 

the record before us. 
 5 

 Reversed and remanded.