COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Humphreys and Senior Judge Coleman 

Argued at Richmond, Virginia 

SHAJUAN LEE McRAE 

 MEMORANDUM OPINION* BY 

v. Record No. 0488-00-2 JUDGE SAM W. COLEMAN III 

 JULY 3, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 John B. Boatwright, III (Boatwright & Linka, 

on brief), for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Shajuan Lee McRae was convicted of possession of a firearm 

while in possession of cocaine. On appeal, McRae contends the 

trial court erred by: (1) striking three prospective jurors for 

cause; and (2) concluding that the prosecution did not violate 

Batson v. Kentucky, 476 U.S. 79 (1986), by using three of its four 

peremptory challenges to remove African-Americans from the jury. 

Finding no reversible error, we affirm. 

THE STRIKES FOR CAUSE

 As part of jury voir dire, the following exchange took place: 

THE COURT: Now, do any of you know of any 

reason, whatsoever, why you could not hear 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
and adjudge the evidence fairly? This case 

should be concluded today, so it will not be 

a trial where you will be asked to come back 

tomorrow. But do you know of any reason 

whatsoever, why you could not hear and 

adjudge the evidence fairly? Any moral, 

religious reasons, any personal convictions, 

any reasons, whatsoever? 

THE JURORS: (Hands raised). 

THE COURT: Ms. Chambliss? 

JUROR CHAMBLISS: I have a nephew in jail. 

I can't sit on it. 

THE COURT: Ms. Chambliss, I'm going to 

excuse you. Why don't you have a seat in 

the courtroom. Ms. Robinson. 

JUROR ROBINSON: I have a nephew, too. 

THE COURT: And you feel you could not sit 

on this jury? 

JUROR ROBINSON: Yes. 

THE COURT: All right. Ms. Robinson, why 

don't you have a seat in the courtroom. 

NOTE: At this time, Juror Chambliss and 

Juror Robinson step down from the jury box 

and have a seat in the courtroom. 

THE COURT: Ms. Otey, you said you know Mr. 

Solomon? 

JUROR OTEY: Yes. 

THE COURT: Counsel, would you like to 

question her behind the bench or do you have 

any objection to the Court excusing her? 

MR. BOATWRIGHT: Yes. 

THE COURT: All right. Let's question her 

behind [the bench]. Ms. Otey, why don't you 

come behind the bench. 

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NOTE: At this time, a bench conference is 

held outside the hearing of the jury as 

follows: 

BENCH CONFERENCE HELD OUT 

OF THE HEARING OF THE JURY 

THE COURT: Ms. Otey, why don't you stand 

right here so the court reporter can see 

you. Tell us how you know Mr. Solomon. 

JUROR OTEY: I know Mr. Solomon by him, 

like, coming to my house. I haven't seen 

him in a long time. I know him by him 

coming to my house, because his brother 

live[s] at my house. 

THE COURT: His brother lives with you? 

JUROR OTEY: Uh-huh. 

THE COURT: His brother is a tenant in your 

house? 

JUROR OTEY: Uh-huh. 

THE COURT: Why don't you have a seat. 

MR. BOATWRIGHT: I object to the Court 

excusing her. 

THE COURT: Have a seat in the jury box. 

NOTE: At this time, Juror Otey returns to 

the jury box. 

MR. BOATWRIGHT: She said nothing that 

indicated she has any bias in favor of the 

witness. She just says she knows the man. 

She hasn't seen him in a long time. 

THE COURT: She also said his brother is her 

tenant, lives with her. 

MR. BOATWRIGHT: I understand that. 

THE COURT: We'll note your objection to the 

Court's excusing her on the record. Is 

there any other reason? 

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MR. BOATWRIGHT: I move for a mistrial on 

that basis. 

THE COURT: Request for mistrial denied. 

MR. BOATWRIGHT: Will this be a time to take 

up my objection to the Court excusing the 

two other jurors? 

THE COURT: Yes. 

MR. BOATWRIGHT: They just simply don't want 

to be here. That is not enough to excuse 

them for cause. I understand how people 

don't want to be here and don't want to sit 

in judgment, but unless they say they 

absolutely can't follow the Court's 

instructions, which they did not say, it is 

not a basis to strike them for cause, and I 

would move the Court to restore them to the 

panel. 

THE COURT: The request is denied. Your 

exception is noted for the record. 

The trial judge then excused juror Otey, after having excused 

jurors Chambliss and Robinson. 

 McRae contends on appeal the trial judge abused her 

discretion by excluding the three jurors who showed no grounds 

for disqualification for cause, thereby depriving him of his 

right to an impartial jury. 

An accused is constitutionally guaranteed the right to trial 

by "an impartial jury." U.S. Const. amends. VI, XIV; Va. Const. 

art. I § 8; see Code § 8.01-358; Rule 3A:14. "Trial courts, as 

the guardians of this fundamental right, have the duty to procure 

an impartial jury." Griffin v. Commonwealth, 19 Va. App. 619, 

621, 454 S.E.2d 363, 364 (1995). 

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Trial courts primarily determine whether a 

venireperson is free from partiality and 

prejudice through meaningful voir dire. 

During voir dire, the trial judge must probe 

the conscience and mental attitude of the 

prospective jurors to ensure impartiality. 

It is not uncommon to discover during voir 

dire that prospective jurors have 

preconceived notions, opinions, or 

misconceptions about the criminal justice 

system, criminal trials and procedure, or 

about the particular case. Even though a 

prospective juror may hold preconceived 

views, opinions, or misconceptions, the test 

of impartiality is whether the venireperson 

can lay aside the preconceived views and 

render a verdict based solely on the law and 

evidence presented at trial. 

Id. (citations omitted) (emphases added). 

 "[W]e review a trial court's decision whether to strike a 

prospective juror for cause for an abuse of discretion and that 

ruling will not be disturbed on appeal unless it appears from 

the record that the trial court's action constitutes manifest 

error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 

S.E.2d 1, 6 (2000). "In determining whether a prospective juror 

should have been excluded for cause, we review the entire voir

dire, rather than a single question and answer." Barnabei v. 

Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996) 

(citation omitted). "'The standard to be applied by the trial 

court in determining whether to retain a venireman on the jury 

panel is whether his answers during voir dire examination 

indicate to the court something that would prevent or 

substantially impair the performance of his duties as a juror in 

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accordance with his instructions and his oath.'" Moten v. 

Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251 (1992) 

(citations omitted). The Supreme Court and this Court have 

repeatedly emphasized that when reasonable doubt exists whether a 

juror possesses the ability to render a fair and impartial service 

that doubt must be resolved in favor of the accused. See Breeden 

v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976). 

 From our review of Virginia's appellate decisions involving 

challenges to jurors for cause in non-capital cases, the issue 

heretofore has been whether a court improperly seated a biased 

juror, not whether a court erroneously or improperly excluded an 

unbiased or qualified juror.1 Here, however, we are asked to 

 1

 In capital cases, because constitutional considerations 

require that the death penalty be administered with fundamental 

fairness and due process of law, appellate courts necessarily 

must review whether trial courts err by removing for cause 

prospective jurors who are inalterably opposed to the death 

penalty. See Wainwright v. Witt, 469 U.S. 412, 424 & n.5 (1985) 

(refining Witherspoon procedure for excluding jurors whose view 

regarding death penalty affects their ability to follow the law 

and instructions); Witherspoon v. Illinois, 391 U.S. 510, 522 

(1968) (holding that imposition of death penalty by jury from 

which jurors were excluded "simply because they voiced general 

objections to the death penalty" violated right to impartial 

jury provided to defendant under the 6th and 14th amendments). 

 For examples of capital cases that review the propriety of 

having struck a qualified juror, see Adams v. Texas, 448 U.S. 

38, 45-50 (1980) (erroneous exclusion of juror in capital murder 

trial violated 6th and 14th Amendments; states may not execute 

sentence of death where even one putative juror has been 

excluded merely because of general objection to capital 

punishment); Davis v. Georgia, 429 U.S. 122, 123 (1976) (holding 

that venireperson is properly excluded only if he or she is 

"'irrevocably committed'" against death penalty regardless of 

facts and circumstances that might emerge at trial; if a 

venireperson is excluded but not "so committed" against the 

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decide the novel question of whether a trial court abused its 

discretion by removing an otherwise qualified juror in a 

non-capital case because the court erroneously either determined 

that the juror was biased or arbitrarily excluded a qualified 

juror. 

 McRae asserts that the trial court abused its discretion by 

excluding the three jurors for cause where no bias was 

demonstrated and the trial judge granted the challenge for cause 

merely to exclude a reluctant juror or was being overly cautious 

by excluding an otherwise qualified juror. Although the record 

in the present case may fail to support the trial judge's 

decision to sua sponte strike for cause venirepersons Chambliss, 

Robinson or Otey, the only question that we may properly 

consider as reversible error is whether the trial court abused 

its discretion in seating an unqualified juror, not whether an 

otherwise qualified juror was excluded from the jury. 

 

death penalty, "any subsequently imposed death penalty cannot 

stand"); State v. Stallings, 413 S.E.2d 710, 712 (Ga. 1992) 

(reversing and remanding for resentencing where the trial court 

erroneously excused a juror who indicated she had some qualms 

about imposing the death penalty and was leaning toward a life 

sentence; explaining that further voir dire might have 

established juror's disqualification by revealing a view on 

capital punishment that would prevent or impair her from 

performing her duty and acting in accordance with the 

instructions and her oath); Durrough v. State, 620 S.W.2d 134, 

142 (Tex. Crim. App. 1981) (reversing and remanding where record 

failed to show excluded juror was so irrevocably opposed to the 

death penalty she could not follow the law or obey the court's 

instructions). 

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 "A defendant is entitled to fair and impartial jurors, not 

jurors whom he hopes will be favorable towards his position. A 

defendant's rights go to those who serve, not to those who are 

excused." State v. Mendoza, 596 N.W.2d 736, 749 (Wis. 1999). 

The erroneous or improper exclusion for cause by the trial court 

of a venireperson does not violate a defendant's rights in a 

non-capital case under the United States Constitution as long as 

the jury that hears the case is impartial. See United States v. 

Gonzalez-Balderas, 11 F.3d 1218, 1221-22 (5th Cir. 1994) 

(holding that "improper removal of a member of the venire is not 

grounds for reversal in a non-capital case unless the jurors who 

actually sat were not impartial within the meaning of the sixth 

amendment"); Shettel v. United States, 113 F.2d 34, 36 (D.C. 

Cir. 1940) (holding that the Constitution guarantees trial by an 

impartial jury and "appellant was not in any way prejudiced by 

the exclusion of these [qualified] persons" from the jury); 

Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998) 

(holding that "a defendant has no right that any particular 

individual serve on the jury. The defendant's only substantial 

right is that the jurors who do serve be qualified. The 

defendant's rights go to those who serve, not to those who are 

excused."). Because the protections afforded under Virginia's 

Constitution "are co-extensive with those in the United States 

Constitution," Bennefield v. Commonwealth, 21 Va. App. 729, 

739-40, 467 S.E.2d 306, 311 (1996), a trial court's exclusion 

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for cause of an otherwise qualified venireperson likewise does 

not affect one's right under Virginia's Constitution in a 

non-capital case so long as the seated jury was fair and 

impartial. 

 Although McRae contends the trial court's actions deprived 

him "of his right to an impartial jury," he does not complain 

that the jury that heard his case was biased or not impartial. 

He puts forth no evidence or argument that the jury selected was 

not impartial. Therefore, while the trial judge may have acted 

precipitously by excluding for cause one or more of the 

prospective jurors, nothing in the record suggests that the jury 

selected was not impartial or not qualified. Accordingly, the 

trial judge's excluding the jurors was not reversible error. 

THE BATSON CHALLENGES

After the court seated twenty potential jurors free from 

exception, the parties exercised their peremptory strikes, after 

which appellant's attorney made the following motion: 

MR. BOATWRIGHT: Judge, pursuant to Batson 

v. Kentucky, I'd ask the Court to require 

the Commonwealth to provide race neutral 

reasons for exclusion of jurors presently in 

position No. 7, Lauretta Harris, a black 

female; No. 20, Eddie Miles, a black male; 

and Kenneth Mosby, Juror No. 5, also a black 

male. 

 Mr. Mosby was the only one of those 

people who gave any kind of response to any 

of the questions asked by anybody. He said, 

A, that he had been charged with something, 

and, B, that he had previously served on a 

civil jury. The other two, Ms. Harris and 

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Mr. Miles, gave no responses, during voir 

dire or otherwise. 

 Before the trial judge could respond, the prosecutor 

volunteered race-neutral reasons for striking the three jurors. 

After being provided race-neutral explanations, the trial judge 

ruled as follows: 

 The Court will rule on the motion as 

follows. First of all, the Court does not 

believe a prima facie case was established 

under Batson. A prima facie case is 

established by exclusion plus other facts 

and circumstances. Even if a prima facie

case has been established, the party making 

the strikes has stated race neutral reasons 

for the strikes, so the motion will be 

denied. 

A prospective juror may not be peremptorily removed from a 

jury panel solely on the basis of race. Batson, 476 U.S. at 89. 

In order to properly raise a challenge to a Batson violation 

[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. 

Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 

(1994). 

 To establish a prima facie case of purposeful 

discrimination under Batson, 

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"the defendant first must show that he is a 

member of a cognizable racial group . . . 

and that the prosecutor has exercised 

peremptory challenges to remove from the 

venire members of the defendant's race. 

Second, the defendant is entitled to rely on 

the fact, as to which there can be no 

dispute, that peremptory challenges 

constitute a jury selection practice that 

permits 'those to discriminate who are of a 

mind to discriminate.' . . . Finally, the 

defendant must show that these facts and any 

other relevant circumstances raise an 

inference that the prosecutor used that 

practice to exclude the veniremen from the 

petit jury on account of their race." 

Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 

(2000) (quoting Batson, 476 U.S. at 96). 

 The defendant has the burden of 

producing a record that supports a prima

facie case of purposeful discrimination. 

The fact that the prosecution has excluded 

African-Americans by using peremptory 

strikes does not itself establish such a 

prima facie case under Batson. A defendant 

also must identify facts and circumstances 

that raise an inference that potential 

jurors were excluded based on their race. 

The composition of the jury that ultimately 

is sworn is a relevant consideration in 

reviewing a Batson challenge. 

Id. at 674, 529 S.E.2d at 780-81 (citations omitted) (emphasis 

added). 

 Because the record in Johnson contained details about the 

jury's racial composition, the Supreme Court was able to rely, 

in part, on the fact that "[t]he jury selected in this case was 

comprised overwhelmingly of African-Americans" when it affirmed 

the trial court's ruling that the appellant failed to establish 

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a prima facie case of purposeful discrimination. Id. at 674, 

529 S.E.2d at 781. 

 Here, appellant failed to produce a complete record to 

support a prima facie case of purposeful discrimination. 

Although the record shows that the Commonwealth used three of 

its four peremptory strikes to remove African-American jurors, 

the record fails to show the racial composition of the venire or 

of the jury sworn, which may, for all we know, have all been 

African-American. Without such information, appellant has 

failed to establish a prima facie case of purposeful 

discrimination. Cf. Faison v. Hudson, 243 Va. 397, 402, 417 

S.E.2d 305, 308 (1992) (finding in civil trial that plaintiff 

presented sufficient facts to establish prima facie case of 

discrimination where record showed that the defendant struck 

from the venire the only African-American); Linsey v. 

Commonwealth, 17 Va. App. 47, 50, 435 S.E.2d 153, 154 (1993) 

(finding prima facie case established where stricken juror was 

only African-American on the venire of twenty, where that juror 

did not respond to any questions and where all five white 

members of the venire who did not respond were not stricken). 

 Because appellant failed to provide a record of the racial 

composition of the venire or the jury and because he failed to 

identify other facts and circumstances sufficient to raise an 

inference that potential jurors were excluded based on race, the 

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trial court did not err in finding that appellant failed to 

establish a prima facie case of purposeful discrimination. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.

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