COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

STANLEY REID 

v. Record No. 0894-94-1 MEMORANDUM OPINION* 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Robert W. Stewart, Judge 

 James S. Ellenson for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney General 

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

 for appellee. 

 In this appeal from a judgment of the Circuit Court of the 

City of Norfolk (trial court) that approved a jury verdict 

convicting him for first degree murder, the sole issue presented 

by Stanley Reid (appellant) is whether the trial court erred when 

it refused to grant his motion for a mistrial and reconstitute 

the jury panel. Finding no error, we affirm the judgment of the 

trial court. 

 Appellant was indicted and tried for feloniously killing and 

murdering Leon Mattox. At trial, pursuant to the provisions of 

Code § 19.2-242, a jury consisting of twenty persons was 

impaneled, from which twelve were to be selected along with two 

alternates. Counsel for each party was given the opportunity to 

exercise four peremptory strikes. The Commonwealth made one 

____________________ 

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

designated for publication. 
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initial strike of a black female who previously had been 

represented by defense counsel. That strike was followed by a 

strike made by appellant. Thereafter, the prosecutor advised the 

trial court that he had "no reason to make any other strikes 

based on peremptory challenges" and, citing Code § 19.2-262(4), 

stated to the trial court that in situations where the 

Commonwealth declined to make its strikes that section had been 

applied. Sub-section (4) provides: 

 In any case in which persons indicted for 

felony elect to be tried jointly, if counsel 

or the accused are unable to agree on the 

full number to be stricken, or, if for any 

other reasons counsel or the accused fail or 

refuse to strike off the full number of 

jurors allowed such party, the clerk shall 

place in a box ballots bearing the names of 

the jurors whose names have not been stricken 

and shall cause to be drawn from the box such 

number of ballots as may be necessary to 

complete the number of strikes allowed the 

party or parties failing or refusing to 

strike. Thereafter, if the opposing side is 

entitled to further strikes, they shall be 

made in the usual manner. 

(Emphasis added.) That section clearly applies to "persons 

indicted for felony [who] elect to be tried jointly." The 

conviction appealed from was a single-defendant trial. Nothing 

in that section provides an excuse for the failure of the 

Commonwealth to prosecute appellant on the charge for which he 

has been indicted. 

 At trial, appellant argued that that Code section did not 

relieve the Commonwealth from meeting the requirements of Batson 
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v. Kentucky, 476 U.S. 79 (1986); however, in this appeal, the 

Batson issue is not raised. Instead, appellant here argues only 

that the trial court erred when it applied the procedure for 

making peremptory strikes as provided in Code § 19.2-262. We 

agree that the provisions of sub-section (4) of Code § 19.2-262 

do not apply to the refusal of the Commonwealth to make the 

peremptory strikes as directed by the General Assembly in 

sub-sections (2) and (3) of that Code section. Sub-sections (2) 

and (3) establish the number of jurors required in criminal cases 

and how they are to be selected. Those sub-sections provide: 

 (2) Twelve persons from a panel of twenty 

shall constitute a jury in a felony case. 

Seven persons from a panel of thirteen shall 

constitute a jury in a misdemeanor case. 

 (3) The parties or their counsel, 

beginning with the attorney for the 

Commonwealth, shall alternately strike off 

one name from the panel until the number 

remaining shall be reduced to the number 

required for a jury. 

The directive is that beginning with the Commonwealth, the 

parties "shall" alternately strike one name until the jury has 

been selected. No alternative is given to the Commonwealth. 

 The ultimate question before this Court is, did the parties 

receive a fair trial, not a perfect trial, and did an action or 

inaction of the trial court constitute reversible error. 

 The trial judge is charged with the duty to see that the 

trial proceeds in an orderly and expeditious manner. An option 

was to inform the Commonwealth of its duty to see that the 

prosecution proceed as provided by law and that the failure to do 
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so could result in dismissal of the charge for failure to 

prosecute. Another would be to use a procedure approved by the 

legislature for defendants who are jointly tried. The latter 

procedure was applied in this case, and we find no reversible 

trial court error in selecting the jury as was done here. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.