COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

EUGENE LLOYD SPRUILL, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2532-96-1 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 9, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Von L. Piersall, Jr., Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 A jury convicted Eugene Lloyd Spruill of robbery and use of 

a firearm in the commission of robbery. On this appeal, Spruill 

contends that the trial judge erred in overruling his Batson

challenge to two of the Commonwealth's peremptory strikes. We 

agree that the evidence proved a Batson violation, and we remand 

for a new trial. 

 I. 

 During jury selection, defense counsel requested the trial 

judge to ask the members of the venire if they had served on 

juries in criminal cases. Several jurors raised their hands. 

The judge also asked how many had served on civil juries. The 

judge then inquired as to how many jurors had "served as jurors 

 

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

designated for publication. 
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before this term, before coming to this term of court." Several 

jurors raised their hands. The judge asked how many had served 

on criminal trials. Juror Newby, Juror Eastwick, and "some extra 

jurors in the back" indicated that they had. 

 The prosecutor used two of his four peremptory strikes to 

remove African-American jurors, including Jurors Newby and 

Randall, from the 20 member venire. After Spruill made a Batson

challenge, the trial judge asked the prosecutor to articulate his 

reasons for the strikes. The prosecutor responded as follows: 

 The reason I struck Miss Newby, Your Honor, 

was she admitted to this court candidly she'd 

served before in a criminal trial and, to be 

honest with you, I wanted to get somebody 

else who had not been here before. We had 

plenty of candidates available. That was the 

reason I struck Miss Newby. 

 [T]he reason I struck Miss Randall, if the 

court recollects . . . , she had on dark 

sunglasses. I couldn't see her, and that was 

the reason that I struck her. I was unable 

to get a read on her expression to see if she 

was paying attention or anything else, for 

that matter, Your Honor; and those were the 

reasons I'd proffer to the Court for my 

strikes. 

 The judge then asked the prosecutor "Did you strike either 

one of them because of their race?" The prosecutor responded 

"No." The prosecutor then explained the reasons for his striking 

two other people who were not African-American. Defense counsel 

asserted that wearing sunglasses was not sufficient cause and 

also noted that other members of the jury panel had indicated 

they had previously served on criminal juries. The trial judge 
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ruled: 

 At this point I don't think there's been 

adequate basis for the Court finding that the 

Commonwealth has made any race-based 

decisions in their peremptory strikes. . . . 

And, therefore, if you're making a Batson

motion, I'm going to overrule that. 

 II. 

 Racially motivated peremptory strikes are unconstitutional 

and impermissible. Batson v. Kentucky, 476 U.S. 79 (1986). In 

Buck v. Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994), the 

Supreme Court of Virginia set out the procedure for determining 

whether the prosecutor exercised peremptory strikes to remove 

prospective jurors solely on the basis of race. 

 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. 

Id. at 450-51, 443 S.E.2d at 415 (citations omitted). When the 

prosecutor "offer[s] . . . reasons for the strikes, we need not 

consider whether [the defendant] established a prima facie

showing of discrimination." Id. at 451, 443 S.E.2d at 415. 

Because the prosecutor in this case articulated reasons for the 

strikes, we first consider whether the Commonwealth's explanation 

for striking Juror Newby was race neutral. 
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 A trial judge's finding that an explanation is race neutral 

is a finding on a matter of law and is fully reviewable by this 

Court. See Riley v. Commonwealth, 21 Va. App. 330, 335, 464 

S.E.2d 508, 510 (1995). To satisfy Batson requirements, "the 

Commonwealth attorney must articulate a neutral explanation 

related to the particular case to be tried." Taitano v. 

Commonwealth, 4 Va. App. 342, 346, 358 S.E.2d 590, 592 (1987). 

"However, after the Commonwealth has asserted a facially 

race-neutral reason to strike, but has only struck jurors of one 

race and the reason asserted for the strike is equally applicable 

to other members of the venire of a different race, the reason 

asserted is not a satisfactory race-neutral explanation for the 

Commonwealth's strikes." Broady v. Commonwealth, 16 Va. App. 

281, 285, 429 S.E.2d 468, 470 (1993). It is not enough for the 

Commonwealth, in rebutting Spruill's prima facie case, "to adopt 

rote 'neutral explanations' which are only facially legitimate." 

Jackson v. Commonwealth, 8 Va. App. 176, 186, 380 S.E.2d 1, 6, 

aff'd on reh'g en banc, 9 Va. App. 169, 384 S.E.2d 343 (1989). 

 After the prosecutor gave the explanation for striking Juror 

Newby, defense counsel protested that several other venire 

members who also had served on criminal juries were not struck. 

The record supports that assertion. However, the trial judge 

made no finding to address the objection. When a specific 

objection is made to a strike, "[t]he trial judge cannot merely 

accept at face value the reason proffered but must independently 
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evaluate those reasons as he would any disputed fact." Jackson, 

8 Va. App. at 185, 380 S.E.2d at 6. Here, it is clear from the 

record that the prosecutor did not offer a facially race-neutral 

explanation because none of the other members of the venire with 

the same criteria were struck. See Broady, 16 Va. App. at 285, 

429 S.E.2d at 471. 

 In order to overcome the presumption that the strikes were 

racially motivated, the prosecutor should have been required to 

explain his reasons for striking an African-American juror, but 

not striking any of the other jurors who had indicated that they 

too had previously served on criminal juries. Because this was 

not done and because the trial judge made no finding, we hold 

that, under the totality of the circumstances, the Commonwealth's 

asserted reasons are insufficient to rebut Spruill's prima facie

showing that the strike was made on the basis of race. 

 Because the strike of Juror Newby was impermissible, we need 

not consider the Commonwealth's reasons for striking the other 

African-American. Permitting the improper removal of any one 

member of the venire constitutes reversible error. See Hill v. 

Berry, 247 Va. 271, 277, 441 S.E.2d 6, 9 (1994); Jackson, 8 Va. 

App. at 185, 380 S.E.2d at 5-6. 

 Accordingly, we reverse the convictions and remand for a new 

trial before a properly selected jury. 

 Reversed and remanded.