COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Kelsey and McClanahan 

Argued at Salem, Virginia 

DAVID EUGENE HUFF 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2371-09-3 CHIEF JUDGE WALTER S. FELTON, JR. 

 OCTOBER 19, 2010 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 Glenn L. Berger (Berger & Thornhill, on brief), for appellant. 

 Robert H. Anderson, III, Senior Assistant Attorney General 

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. 

David Eugene Huff (appellant) was convicted by a jury of solicitation to commit murder 

in violation of Code § 18.2-29. On appeal he asserts that the trial court erred in denying his 

Batson1

 motion, arguing that the Commonwealth unconstitutionally exercised its peremptory 

challenges to remove four men from the venire. For the following reasons, we disagree and 

affirm the conviction. 

Because the assigned error relates solely to procedural aspects of the proceeding below, 

we recite only those facts necessary to resolve the issue present in this appeal. Appellant was 

charged with soliciting a fellow jail inmate to kill his ex-wife. At trial, the Commonwealth and 

appellant each peremptorily struck members of the venire. The Commonwealth struck four men 

from the venire. The record does not reflect which members appellant struck from the venire. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1 Batson v. Kentucky, 476 U.S. 79 (1986). 
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After the parties completed their respective peremptory strikes, the jury was composed of seven 

men and five women. Appellant objected to the Commonwealth’s peremptory strikes, arguing 

that they were discriminatory. Appellant’s counsel argued: 

We would submit that this is a case involving a man who is being 

tried for an offense allegedly against a woman, and we would 

submit that their decision to strike only men from the jury panel is 

suspect, and we object to their elimination of only men from the 

jury panel. 

The Commonwealth then provided the trial court with gender-neutral reasons for its striking each 

of the four men from the venire. Appellant made no additional comments or arguments 

regarding the Commonwealth’s explanations for its peremptory strikes. The trial court found the 

Commonwealth’s peremptory strikes were not discriminatory. Appellant made no further 

objections concerning the make-up of the jury panel. 

“‘On appellate review, the trial court’s conclusion regarding whether reasons given for the 

strikes are [non-discriminatory] is entitled to great deference, and that determination will not be 

reversed on appeal unless it is clearly erroneous.’” Avent v. Commonwealth, 279 Va. 175, 196, 688 

S.E.2d 244, 256 (2010) (quoting Jackson v. Commonwealth, 266 Va. 423, 437, 587 S.E.2d 532, 543 

(2003)). 

“When a defendant raises a challenge based on Batson, he must 

make a prima facie showing that the peremptory strike was made 

on [prohibited discriminatory] grounds. At that point, the burden 

shifts to the prosecution to produce [non-discriminatory] 

explanations for striking the juror. The defendant may then 

provide reasons why the prosecution’s explanations were 

pretextual and the strikes were discriminatory regardless of the 

prosecution’s stated explanations. Whether the defendant has 

carried his burden of proving purposeful discrimination in the 

selection of the jury is then a matter to be decided by the trial 

court.” 

Id. at 196-97, 688 S.E.2d at 256 (quoting Jackson, 266 Va. at 436, 587 S.E.2d at 542). These 

principles apply to discrimination based on gender. J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 
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127, 140 (1994) (“Discriminatory use of peremptory challenges may create the impression that 

the judicial system has acquiesced in suppressing full participation by one gender or that the 

‘deck has been stacked’ in favor of one side.”). 

 “Clearly, Batson’s ‘proof structure’ requires a defendant, confronted with a facially 

neutral explanation for a prosecutor’s peremptory strikes, ‘to show both that these reasons were 

merely pretextual and that race [or gender] was the real reason.’” Robertson v. Commonwealth, 

18 Va. App. 635, 638, 445 S.E.2d 713, 715 (1994) (quoting United States v. McMillon, 14 F.3d 

948, 953 (4th Cir. 1994)). In Robertson, the defendant argued on appeal that the 

Commonwealth’s explanations for striking venirepersons were “unsupported or contradicted by 

the record.” Id. at 640, 445 S.E.2d at 716. However, because Robertson did not present those 

arguments to the trial court, we concluded that Rule 5A:18 barred our consideration of that 

claimed error and concluded that those contentions by Robertson would not be considered for the 

first time on appeal. Id. Similarly, in Avent, the Supreme Court noted that “it was incumbent 

upon Avent to demonstrate that the reasons advanced by the Commonwealth for striking these 

potential jurors ‘were purely a pretext for unconstitutional discrimination.’” 279 Va. at 197, 688 

S.E.2d at 256 (quoting Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412 

(2006)). 

 Here, appellant argues for the first time on appeal that the Commonwealth’s explanations 

for its peremptory strikes were “partial and vague.” However, appellant did not present the 

arguments he makes on appeal to the trial court. Like the defendant in Avent, appellant “did not 

offer any evidence or argument [to the trial court] that the Commonwealth’s proffered rationale 

behind the [four] strikes challenged in this appeal were pretextual.” Id. We will not consider for 

the first time on appeal appellant’s contentions of trial court error not addressed by the trial 

court. Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal 
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unless the objection was stated together with the grounds therefor at the time of the ruling, 

except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”).2 

Appellant does not argue that we should invoke either the good cause or ends of justice 

exceptions to Rule 5A:18. See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 

269, 272 (1997). The Court will not consider Rule 5A:18 exceptions sua sponte. Edwards v. 

Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). 

Accordingly, we conclude from the record on appeal that the trial court did not err in 

denying appellant’s Batson motion and we affirm the conviction. 

 Affirmed.

 2

 Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial 

court . . . will be considered as a basis for reversal unless an objection was stated with reasonable 

certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to 

this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.