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. Mo rrison, Judge W. McMillan Powers, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Benjamin H. Katz, Assistant At torney General (M ark 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 (“tria l court”). He contends the trial cour t erred by denying hi s challenge to the Commonwealth’s use of peremptory strikes to remove four A frican-American members of the venire. He specifically contends that the Comm onwealth’s articulated justification for removing four African-American members of the venire was a pretext for uncons titutional discrimination.
I. BACKGROUND The underlying facts of appellant’s conviction ar e not at issue. Appe llant’s sole assignment of error relates to his contentio n that the trial court erred by denying his challenge to the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - Commonwealth’s use of peremptory strikes to remove four A frican-American members of the venire. 1 At trial, during voir dire , the Commonwealth exercised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 Commo nwealth’s peremptory strikes pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). 2 Appellant asserted that, “O f 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 explaine d 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 pos sessed no basis for striking any remaining members of the venire. In the absence of a co mpelling reason to strike any of the remaining

1 On May 16, 2014, in a per curiam order, this Court direct ed the parties to address whether consideration of appellant’s assignmen t 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 th e 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 th at an immediate family member had been arrested or conv icted of an offense.- 3 - veniremen, the Commonwealth stated it selected White and Whitehead solely because their names appeared at the bottom of the al phabetical 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 th e jury’s recommended sentence of two years’ incarceration.
II. ANALYSIS Appellant asserts that the Co mmonwealth’s proffered explanat ion for the exercise of its peremptory strikes to remove four African-Ameri can persons from the ve nire was a pretext for racial discrimination. Accordingly, appellant asse rts the trial court erred by overruling his Batson challenge to the Commonwea lth’s use of its peremptory strike s to remove four African-American individuals from the venire. “In Batson v. Kentucky, 476 U.S. 79, 89 (1986) , the United States Su preme Court held that excluding a potential juror solely on the basis of the juror’s race is purpos eful discrimination and a violation of the Equal Protectio n Clause of the Fourteenth Am endment of the United States Constitution.” Jackson v. Commonw ealth, 266 Va. 423, 435, 587 S.E.2d 532, 54 2 (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 de fendant 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 shif ts to the prosecution to produce race-neutral explanations for striki ng the juror. The defendant can then argue that the pros ecution’s explanations were purely a pretext

4 The Commonwealth told the tr ial court, “Your Honor, ther e was no other basis that I had for striking any of the jurors, so I star ted from the bottom and worked my way up.”- 4 - for unconstitutional discrimination. Under each of Batson’s three steps, however, the burd en of persuasion rests with, and never shifts from, the opponent of the strike. Lightfoot, 50 Va. App. at 727, 65 3 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 us e of its peremptory strikes to remove two African-American members of the venire. The Comm onwealth explained to the trial court that it struck one African-American woman because of her marital st atus, and one African-American man because of his manner of dres s and his place of residence. Before the trial court determined whether the Commonwealth’s articula ted justification for the strikes was race-neutral, it provided Buck the opportunity to explai n 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 no w only have one, and I would thin k more significant reasons than what was given should be shown.” Id. at 452, 443 S.E. 2d at 416. Howeve r, on appeal, Buck asserted that the Commonw ealth’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 argume nts 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 reason s advanced were pret extual because they were inconsistently applied, nor did Buck’s statement advise the court that the reasons were base d 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 applie d 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.- 5 - Here, appellant did not a ssert to the trial court, as he does for the first time on appeal, that the Commonwealth’s explanat ion for striking four African-Amer ican 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 pr etext for unconstitutio nal discrimination.” Lightfoot, 50 Va. App. at 727, 65 3 S.E.2d at 618. However, in response to th e Commonwealth’s explanation for its peremptory strikes, appellant st ated 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 beca use the Commonwealth’s explanation for its peremptory strikes was merely a pr etext for racial discrimination. Because appellant failed to presen t to the trial court the argument he makes for the first time on appeal, the Court will not consider his assignment of trial court e rror. Rule 5A:1 8 (“No ruling of the trial court . . . will be considered as a basi s for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . . .”). Accordi ngly, we affirm the judgment of the trial court convicting appellant of assault and battery of a law enforc ement officer, in violation of Code § 18.2-57. Affirmed.