COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

KENNETH BERNARD LEWIS 

 OPINION BY 

v. Record No. 1314-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 James B. Thorsen (Thorsen, Marchant & Scher, 

on brief), for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Following a jury trial, appellant, Kenneth Bernard Lewis, 

was convicted of second degree murder and the use of a firearm in 

the commission of a felony. On appeal, he contends that the 

trial court erred in refusing to consider a Batson motion he made 

after the jury was sworn and the remaining venirepersons were 

excused. Finding no error, we affirm. 

 Following voir dire, a panel of twenty prospective jurors 

stood ready to try appellant. Peremptory challenges were made, a 

jury of twelve was sworn, and the remaining venirepersons were 

excused. Appellant then, for the first time, raised a challenge 

under Batson v. Kentucky, 476 U.S. 79 (1986), to the 

Commonwealth's exercise of peremptory strikes. The trial court 

refused to consider appellant's motion on the ground that it was 

not timely made. In particular, the court noted that the jury 
 2 

had been sworn and the remaining venirepersons excused. The 

court further noted that appellant had the opportunity to raise 

his objection both before and after the time the clerk announced 

the peremptory strikes.1

 The United States Supreme Court has not specifically defined 

temporal parameters for the making of a Batson motion. Instead, 

the Court has left to the lower courts the decision to adopt 

timeliness rules. Ford v. Georgia, 498 U.S. 411, 423 (1991) 

("[A] state court may adopt a general rule that a Batson claim is 

untimely if it is raised for the first time on appeal, or after 

the jury is sworn, or before its members are selected."); see 

also Batson v. Kentucky, 476 U.S. 79, 99-100 n.24 (1986) (making 

"no attempt to instruct [lower] courts how best to implement [the 

Batson] holding"). 

 Most courts, however, hold that a party must raise a Batson

challenge prior to the time the jury is sworn and the remaining 

venirepersons are excused. See McCrory v. Henderson, 82 F.3d 

1243, 1249 (2d Cir. 1996); United States v. Parham, 16 F.3d 844, 

847 (8th Cir. 1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 

 1Appellant proffered his prima facie case of discrimination, 

alleging that three of the four venirepersons whom the 

Commonwealth struck were African-Americans and that none of them 

had made comments or given answers during voir dire which would 

have provided a basis other than race for their exclusion. On 

brief, appellant predominantly argues the merits of his Batson

claim and the trial court's error in denying it. It bears 

emphasis, however, that the trial court did not deny appellant's 

motion on the merits; rather, it refused to consider the motion. 

 The issue on appeal is whether, as appellant also contends, the 

trial court erred in refusing to consider his Batson motion. 
 3 

(9th Cir. 1991); United States v. Romero-Reyna, 867 F.2d 834, 837 

(5th Cir. 1989); Government of Virgin Islands v. Forte, 806 F.2d 

73, 76 (3d Cir. 1986); Owen-Corning Fiberglass Corp. v. Henkel, 

689 A.2d 1224, 1228 (D.C. 1997); State v. Parker, 836 S.W.2d 930, 

935 (Mo. 1992); State v. Harris, 754 P.2d 1139, 1140 (Ariz. 

1988); see also Ford, 498 U.S. at 422 ("The requirement that any 

Batson claim be raised not only before trial, but in the period 

between the selection of the jurors and the administration of 

their oaths, is a sensible rule."). The rationale for such a 

rule is to prevent litigants from manipulating the judicial 

process and to promote judicial economy. See McCrory, 82 F.3d at 

1247 ("If . . . a Batson objection may be raised after the jury 

has been sworn and trial has begun, there can be no remedy short 

of aborting the trial. This would permit the defendant to 

manipulate the system to the extreme prejudice of the prosecution 

and give the defendant a strong inducement to delay raising the 

objection until trial is underway."); Owens-Corning, 689 A.2d at 

1228 ("Where . . . a party claiming a Batson violation is silent 

during voir dire and complains only after the venire has been 

dismissed and the jury has been sworn, it becomes difficult (if 

not impossible) for the court and counsel to recreate in their 

minds the circumstances of each strike."); Parker, 836 S.W.2d at 

936 ("[S]ustaining a Batson challenge after discharge of the 

venire necessitates the calling of a new venire and the selection 

of a new jury, thereby delaying justice and wasting judicial time 
 4 

and resources.");2

State v. Smith, 791 S.W.2d 744, 747 

(Mo. Ct. App. 1990) (After the swearing of the jury, "the 

defendant was . . . in jeopardy. If the defendant's challenges 

were then sustained, the state's action supporting that ruling, 

arguably, could be characterized as prosecutorial misconduct. It 

would be this misconduct which, in turn, would require a mistrial 

to be granted. A mistrial caused by the state may preclude the 

defendant from again being put into jeopardy. This result may 

not always be certain to occur. The risk is great enough, 

however, to require defense counsel to challenge the state's 

peremptory strikes prior to the jury being sworn and prior to the 

remaining venirepersons being discharged."); Harris, 754 P.2d at 

1140 ("When no objection is made until after the challenged 

jurors have been excused, the possibility for an immediate remedy 

for unconstitutional action has been lost."). 

 

 2Moreover, as the Court in Parker explained: 

 Quashing the panel and commencing the jury 

selection process anew does not really 

correct the error. The defendant is simply 

accorded a new opportunity to obtain a jury 

composed according to race-neutral criterion; 

the discrimination endured by the excluded 

venirepersons goes completely unredressed 

since they remain wrongfully excluded from 

jury service. 

 Requiring defendants to make Batson

challenges prior to the venire's dismissal, 

on the other hand, allows the trial court to 

determine whether a constitutional violation 

has occurred while there remains time to 

correct the error by disallowing the 

offending strike. 

836 S.W.2d at 936. 
 5 

 In Virginia, a Batson motion is not waived by the 

defendant's failure to raise it prior to the swearing of the 

jury. Hill v. Berry, 247 Va. 271, 274, 441 S.E.2d 6, 7 (1994). 

Rather, Code § 8.01-352 allows a Batson motion to be made after 

the jury is sworn, but only with leave of court. Hill, 247 Va. 

at 274, 441 S.E.2d at 7.3 We find no error in the trial court's 

decision to deny leave in the present case. 

 The record shows that appellant had ample opportunity to 

raise his Batson challenge before the jury was sworn and the 

remaining venirepersons were discharged.4 The record shows that 

 

 3Code § 8.01-352(A) provides: 

 Prior to the jury being sworn, the following 

objections may be made without leave of 

court: (i) an objection specifically pointing 

out the irregularity in any list or lists of 

jurors made by the clerk from names drawn 

from the jury box, or in the drawing, 

summoning, returning, or impaneling of jurors 

or in copying or signing or failing to sign 

the list, and (ii) an objection to any juror 

on account of any legal disability; after the 

jury is sworn such objection shall be made 

only with leave of court. 

 4In argument, appellant's counsel explained that, in order 

to avoid interrupting the trial judge who was proceeding quickly 

through the jury selection process, he deferred making his Batson

motion in anticipation of the trial court's inquiry in accordance 

with the recommended procedure outlined in the Virginia Circuit 

Court Benchbook. He cites, in particular, the procedure 

directing the court to ask counsel after the juror strikes are 

announced and before the jury is sworn whether there are "any 

objections to the strikes or the panel." See, e.g., Cudjoe v. 

Commonwealth, 23 Va. App. 193, 199, 475 S.E.2d 821, 824 (1996); 

Benchbook Committee, Virginia Circuit Court Benchbook: Criminal

186 (Supp. 1995). He contends that the trial judge erred in 

failing to inquire whether he had any motions to make before the 

jury was sworn. To be sure, this protocol was not followed in 

appellant's case. However, while making such inquiry is 
 6 

appellant knew which prospective jurors the Commonwealth struck 

prior to the strikes having been announced. Manifestly, 

appellant knew which prospective jurors the Commonwealth struck 

as the strikes were announced, and he certainly knew which 

prospective jurors the Commonwealth had struck after the strikes 

were announced, the stricken jurors left their seats, and the 

jury assembled in the box. Neither the record, nor appellant, 

suggests that information concerning the Commonwealth's strikes 

was unavailable to appellant at that time, and no reading of the 

record suggests that appellant was otherwise prevented from 

raising his challenge. In short, appellant had all the 

information and opportunity he needed to raise his challenge 

before the jury was sworn and the remaining venirepersons 

dismissed. As such, the record fails to support appellant's 

contention that the trial court should have granted him leave to 

raise his challenge. 

 By contrast, the circumstances the trial court faced in this 

case provided ample basis for its decision not to grant leave. 

The choice of remedy upon sustaining a Batson challenge lies 

within the discretion of the trial court. Coleman v. Hogan, 254 

Va. 64, 67-68, 486 S.E.2d 548, 549-50 (1997). "The trial court 

 

undoubtedly sound practice, the failure to follow recommendations 

for the conduct of a trial does not rise to the level of 

reversible trial error. See Clark v. Newport News Shipbuilding & 

Dry Dock Co., 937 F.2d 934, 939 (4th Cir. 1991) ("Neither Batson, 

nor its progeny, suggests that it is the duty of the court to act 

sua sponte to prevent discriminatory exclusion of jurors."). 
 7 

is uniquely positioned to evaluate the circumstances in each case 

and to exercise its discretion" in deciding whether to reseat 

persons improperly struck from the jury panel or to discharge the 

venire and select a jury from a new panel. Id. at 68, 486 S.E.2d 

at 550. A trial court's exercise of discretion may be improperly 

cabined, however, if the challenge is made after the jury is 

sworn and the remaining venirepersons are discharged. At that 

point, the court cannot reseat a juror improperly stricken, and 

discharging the venire and beginning the process of jury 

selection anew may be compelled under the circumstances. Such a 

result will generally serve neither the public policy Batson

seeks to advance, nor the fair administration of justice. 

 In this case, the timing of appellant's challenge limited 

the court's choice of remedy and frustrated the trial court's 

ability to address the equal protection violation appellant 

sought to remedy. See Parker, 836 S.W.2d at 936. At the 

juncture appellant attempted to challenge the Commonwealth's 

strikes of certain venirepersons, the court had discharged from 

service those very individuals. Although appellant's equal 

protection rights could be restored at that point by assembling a 

new panel, no redress of the discrimination endured by the jurors 

wrongfully excluded from serving could be achieved. See Parker, 

836 S.W.2d at 936 ("The error at issue in a Batson challenge is, 

of course, the state's racially discriminatory use of peremptory 

strikes in violation of both the accused's and the excluded 
 8 

venirepersons' equal protection rights." (citing Powers v. Ohio, 

499 U.S. 400, 409 (1991)). 

 In addition to leaving the court an incomplete remedy with 

respect to the jurors improperly excluded, the untimely motion in 

this case limited the court's ability to weigh the expenditure of 

additional judicial resources and the ensuing, perhaps 

substantial, delay in the administration of justice which can 

follow a decision to strike the venire upon sustaining a Batson

challenge. When balanced against a record which makes manifest 

that, notwithstanding the Batson claim, the appellant was given a 

fair trial by a jury which was free from exception, it cannot be 

said the trial court's decision to preserve judicial resources 

and avoid a delay in the administration of justice constitutes an 

abuse of discretion. 

 In short, we find that the trial court did not abuse its 

discretion in denying appellant leave to raise Batson issues 

after the jury was sworn; therefore, we affirm the trial court. 

 Affirmed.