COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges McCullough and Decker 

Argued at Chesapeake, Virginia 

NORMAN LEO MADISON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2226-13-1 CHIEF JUDGE WALTER S. FELTON, JR. 

 OCTOBER 7, 2014 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 W. McMillan Powers, Assistant Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

Norman Leo Madison (“appellant”) appeals his conviction of assault and battery of a law 

enforcement officer, in violation of Code § 18.2-57, following a jury trial in the Circuit Court of the 

City of Portsmouth (“trial court”). He contends the trial court erred by denying his challenge to the 

Commonwealth’s use of peremptory strikes to remove four African-American members of the 

venire. He specifically contends that the Commonwealth’s articulated justification for removing 

four African-American members of the venire was a pretext for unconstitutional discrimination. 

I. BACKGROUND 

The underlying facts of appellant’s conviction are not at issue. Appellant’s sole assignment 

of error relates to his contention that the trial court erred by denying his challenge to the 

 *

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

UNPUBLISHED 
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Commonwealth’s use of peremptory strikes to remove four African-American members of the 

venire.1

At trial, during voir dire, the Commonwealth exercised its peremptory strikes to remove 

Regina Potts, Jesse Council, Vivian White, and Janice Whitehead, all of whom are 

African-American. Appellant challenged the Commonwealth’s peremptory strikes pursuant to 

Batson v. Kentucky, 476 U.S. 79 (1986).2

 Appellant asserted that, “Of the jurors struck by [the 

Commonwealth,] it appears they’re all African-American. None of them seemed to answer any 

questions that would make them appear to be detrimental to the Commonwealth’s case.” The 

trial court found that appellant made a prima facie showing of purposeful discrimination under 

Batson. The trial court then afforded the Commonwealth an opportunity to provide a 

race-neutral reason for its peremptory strikes. The Commonwealth explained that it struck Potts 

and Council because of their prior experience with law enforcement.3 The trial court accepted 

the Commonwealth’s explanation as sufficiently race-neutral as to not be purposefully 

discriminating, observing, “We’ll leave those two [strikes].” 

With respect to the Commonwealth’s peremptory strikes to remove Whitehead and 

White, the Commonwealth explained that it possessed no basis for striking any remaining 

members of the venire. In the absence of a compelling reason to strike any of the remaining 

 1

 On May 16, 2014, in a per curiam order, this Court directed the parties to address 

whether consideration of appellant’s assignment of error was barred pursuant to Buck v. 

Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994), and its progeny. 

2

 Batson, 476 U.S. at 89 (excluding a potential juror solely on the basis of the juror’s race 

is purposeful discrimination and a violation of the Equal Protection Clause of the Fourteenth 

Amendment of the United States Constitution). 

3

 During voir dire, both Potts and Council indicated that an immediate family member 

had been arrested or convicted of an offense. 
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veniremen, the Commonwealth stated it selected White and Whitehead solely because their 

names appeared at the bottom of the alphabetical list of the venire members.4

The trial court accepted the Commonwealth’s explanation as race-neutral, noting, “All 

right. I’m going to let it go.” In response, appellant stated, “Just note my objection for the 

record, Your Honor.” 

At trial, the jury found appellant guilty of assault and battery of a law enforcement 

officer, in violation of Code § 18.2-57. The trial court imposed the jury’s recommended 

sentence of two years’ incarceration. 

II. ANALYSIS 

Appellant asserts that the Commonwealth’s proffered explanation for the exercise of its 

peremptory strikes to remove four African-American persons from the venire was a pretext for 

racial discrimination. Accordingly, appellant asserts the trial court erred by overruling his Batson 

challenge to the Commonwealth’s use of its peremptory strikes to remove four African-American 

individuals from the venire. 

“In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court held that 

excluding a potential juror solely on the basis of the juror’s race is purposeful discrimination and a 

violation of the Equal Protection Clause of the Fourteenth Amendment of the United States 

Constitution.” Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). As this 

Court held in Lightfoot v. Commonwealth, 50 Va. App. 723, 653 S.E.2d 615 (2007): 

Under Batson’s three-step test, a defendant asserting such a violation 

initially must show that the individual is a member of a cognizable 

racial group, and make a prima facie showing that the peremptory 

strike was made on racial grounds. [If] a prima facie case is put 

before the court, the burden shifts to the prosecution to produce 

race-neutral explanations for striking the juror. The defendant can 

then argue that the prosecution’s explanations were purely a pretext 

 4

 The Commonwealth told the trial court, “Your Honor, there was no other basis that I 

had for striking any of the jurors, so I started from the bottom and worked my way up.” 
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for unconstitutional discrimination. Under each of Batson’s three 

steps, however, the burden of persuasion rests with, and never shifts 

from, the opponent of the strike. 

Lightfoot, 50 Va. App. at 727, 653 S.E.2d at 617-18 (internal citations and quotations omitted). 

In Buck v. Commonwealth, 247 Va. 449, 451, 443 S.E.2d 414, 415 (1994), the accused, an 

African-American man, challenged the Commonwealth’s use of its peremptory strikes to remove 

two African-American members of the venire. The Commonwealth explained to the trial court that 

it struck one African-American woman because of her marital status, and one African-American 

man because of his manner of dress and his place of residence. Before the trial court determined 

whether the Commonwealth’s articulated justification for the strikes was race-neutral, it provided 

Buck the opportunity to explain why he believed the Commonwealth’s reasons were pretextual. 

Buck stated, “My concern was that the jurors are not representative of the population. There were 

three blacks on the panel. We now only have one, and I would think more significant reasons than 

what was given should be shown.” Id. at 452, 443 S.E.2d at 416. However, on appeal, Buck 

asserted that the Commonwealth’s explanations for its peremptory strikes were pretextual because 

they were inconsistently applied, based on a mistake of fact, and based on improper generalizations. 

The Supreme Court held that Buck failed to present the same arguments to the trial court 

that he presented on appeal. The Court held: 

Nothing in [Buck’s] statement informed the trial court that Buck 

believed that the reasons advanced were pretextual because they 

were inconsistently applied, nor did Buck’s statement advise the 

court that the reasons were based on a mistake concerning an 

address, an improper assumption of toleration for drug-related 

crimes, or erroneous inferences drawn from the wearing of an 

athletic jacket. 

Id. As a consequence of Buck’s failure to present to the trial court the same arguments he raised on 

appeal, the Court applied Rule 5:25 to bar its consideration of Buck’s assertion of trial court error. 

Id. at 452-53, 443 S.E.2d at 416. 
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Here, appellant did not assert to the trial court, as he does for the first time on appeal, that 

the Commonwealth’s explanation for striking four African-American members of the venire was a 

pretext for racial discrimination. After the trial court accepted the Commonwealth’s explanation for 

its peremptory strikes as race-neutral, appellant was required to show to the trial court that the 

Commonwealth’s “explanations were purely a pretext for unconstitutional discrimination.” 

Lightfoot, 50 Va. App. at 727, 653 S.E.2d at 618. However, in response to the Commonwealth’s 

explanation for its peremptory strikes, appellant stated only, “Just note my objection for the record, 

Your Honor.” Appellant is barred from asserting, for the first time on appeal, that the trial court 

erred by overruling his Batson challenge because the Commonwealth’s explanation for its 

peremptory strikes was merely a pretext for racial discrimination. 

Because appellant failed to present to the trial court the argument he makes for the first time 

on appeal, the Court will not consider his assignment of trial court error. Rule 5A:18 (“No 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 . . . .”). Accordingly, we affirm the judgment of the 

trial court convicting appellant of assault and battery of a law enforcement officer, in violation of 

Code § 18.2-57. 

Affirmed.