COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bumgardner 

Argued at Richmond, Virginia 

SERGIO EMMANUEL HAYES, A/K/A 

 ANDRE O. JULIAN 

 MEMORANDUM OPINION* BY 

v. Record No. 2529-97-2 JUDGE JERE M. H. WILLIS, JR. 

 SEPTEMBER 22, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Sa'ad El-Amin (El-Amin & Crawford, on brief), 

for appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Sergio Emmanuel Hayes contends that the trial court erred in 

denying his challenge to the Commonwealth's exercise of 

peremptory strikes against four African-American veniremen. See

Batson v. Kentucky, 476 U.S. 79 (1986). We find no reversible 

error and affirm the judgment of the trial court. 

 I. 

 Hayes, an African-American, was charged with abduction, 

carjacking, and use of a firearm in the commission of a felony. 

During jury selection, the Commonwealth peremptorily struck four 

African-Americans from the venire, which consisted of eleven 

whites and nine African-Americans. The resulting jury consisted 

of seven whites and five African-Americans. Hayes moved the 

 

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

designated for publication. 
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trial court to review the Commonwealth's peremptory strikes 

pursuant to Batson. The trial court ruled that Hayes had 

established a prima facie showing and required the Commonwealth 

to explain its reasons for the strikes. The prosecutor replied 

as follows: 

 [T]he Commonwealth's case is based on 

principal in the second degree, so it's sort 

of a technical legal issue, and I want to 

make sure that we have people that appear by 

their occupations, which is all I have to go 

by, appear to have some sort of educational 

background. I've gone through a process of 

elimination -- the people that I happened to 

strike seem -- do not have the educational 

background that the other people have. 

 The prosecutor explained that Alpheus Patterson's employment 

as a toll collector and Myra Bellamy's employment with Good 

Humor/Breyers suggested that they had limited educations. He 

said that he struck Mary Griffin because her employment with a 

nursing home "would not indicate a strong educational 

background," and because she appeared "to be strong willed and 

determined, and that, in my experience, can be dangerous either 

way." He stated that he struck Glynis Gayles because she "was 

looking around the courtroom some" during voir dire, and was 

unemployed "which with all else equal indicates she might not 

have the same educational background." 

 Hayes argued that the education level of the selected white 

jurors was not apparent and could not be inferred reasonably from 

their listed occupations. He noted that the white jurors 

included William Stark, an eighteen-year-old student, and 
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Madeline Brown, a fifty-six-year-old historic tour guide and 

housewife. 

 The trial court denied Hayes' Batson motion and seated the 

jury. During sentencing deliberations, the trial court permitted 

Hayes to record additional facts concerning the composition of 

the jury. In addition to Stark and Brown, the white jurors 

included: (1) Cynthia Fauber, occupation not indicated in the 

record; (2) Fred Finn, a merchant; (3) Jimmy Gray, a maintenance 

worker; (4) Steve Quillman, a non-destructive inspector; and (5) 

Andrew VanDerren, a sales representative.1

 The occupations of 

the African-American jurors were not made a part of the record. 

 II. 

 A. 

 To preserve a defendant's "right to be tried by a jury whose 

members are selected pursuant to nondiscriminatory criteria," the 

parties to a criminal proceeding are prohibited from using 

peremptory challenges to strike prospective jurors "solely on 

account of their race." Batson, 476 U.S. at 85-86, 89. See

Georgia v. McCollum, 505 U.S. 42, 54-55 (1992). 

 When a defendant challenges the prosecution's use of 

peremptory strikes on equal protection grounds, the trial court 

must employ a three-step process to determine whether a Batson

 

 1Hayes asserts that Patsy Dorman, a juror, is white. 

However, the record does not indicate that she is white. At 

trial, defense counsel listed the names of the seven white 

members of the jury. 
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violation has occurred. First, "[the] defendant must . . . 

establish a prima facie showing that the peremptory strike was 

made on the basis of race." Buck v. Commonwealth, 247 Va. 449, 

450-51, 443 S.E.2d 414, 415 (1994) (citation omitted). Once the 

challenger has established a prima facie showing, the proponent 

of the strike must proffer a race-neutral explanation. See id.

at 451, 443 S.E.2d at 415 (citation omitted). 

 "At this [second] step of the inquiry, 

the issue is the facial validity of the 

prosecutor's explanation. Unless a 

discriminatory intent is inherent in the 

prosecutor's explanation, the reason offered 

will be deemed race neutral." 

Purkett v. Elem, 514 U.S. 765, 768 (1995) (quoting Hernandez v. 

New York, 500 U.S. 352, 360 (1991) (plurality opinion)). 

 Finally, "the trial court must consider the basis of the 

challenges, the reasons proffered for the strikes, and any 

argument presented that such reasons, even if race-neutral, are 

pretextual, to determine whether the challenger has met his 

burden of proving purposeful discrimination in the selection of a 

jury panel." Chandler v. Commonwealth, 249 Va. 270, 277, 455 

S.E.2d 219, 223 (1995) (citation omitted). 

 A "trial court's decision on the ultimate 

question of discriminatory intent represents 

a finding of fact of the sort accorded great 

deference on appeal," and this decision will 

not be reversed unless clearly erroneous. 

This standard of review logically recognizes 

the trial court's unique opportunity to 

observe and evaluate "the prosecutor's state 

of mind based on demeanor and credibility" in 

the context of the case before the court. 
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Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713, 

715 (1994) (citations omitted). 

 B. 

 The trial court's denial of Hayes' motion was not clearly 

erroneous. The trial court correctly found that Hayes had 

established a prima facie showing of racial discrimination and 

required the Commonwealth to explain its peremptory strikes. The 

prosecutor explained that the case involved difficult legal 

concepts and that he exercised his strikes based upon the venire 

members' demeanor and apparent level of education. The trial 

court concluded that the reasons offered by the prosecutor were 

race-neutral and should be believed. 

 Occupation, education and demeanor during voir dire are 

proper race-neutral considerations in exercising peremptory 

strikes. See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402 

S.E.2d 196, 205-06 (1991); Goodson v. Commonwealth, 22 Va. App. 

61, 81, 467 S.E.2d 848, 858 (1996). The prosecutor justified his 

strikes of Griffin and Gayles noting, in part, their demeanor 

during voir dire. A prosecutor's use of peremptory challenges is 

not so circumscribed as to require seating persons expressing a 

"strong will" or displaying a penchant for idle gazing. The 

quest for a jury free from the taint of racial or gender 

discrimination does not require a party to abandon subjective 

criteria in exercising peremptory strikes. Indeed, "the approach 

best expressed by the familiar phrase '[t]here but for the grace 
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of God go I' remains a standard and permissible justification for 

peremptory strikes." United States v. McMillon, 14 F.3d 948, 953 

(4th Cir. 1994). See also Batson, 476 U.S. at 99 n.22. 

 The prosecutor explained that based on the information 

available to him, the struck veniremen appeared to be less 

educated than the other members of the venire. The selected 

white jurors included a mechanic, an inspector, a sales 

representative, a historic tour guide, a student and a merchant. 

 While we cannot say that these pursuits necessarily require a 

higher level of education than a position in a toll collection 

booth or an ice cream facility, or that the struck jurors were 

less educated than the selected jurors, neither can we say that 

the prosecutor's opinion that this was the case was unreasonable. 

See Winfield v. Commonwealth, 12 Va. App. 446, 452-53, 404 

S.E.2d 398, 402 (1991), aff'd en banc, 14 Va. App. 1049, 421 

S.E.2d 468 (1992). 

 Hayes bears the burden of showing that the prosecutor's 

facially neutral "reasons were merely pretextual and that race 

was the real reason for the strike." McMillon, 14 F.3d at 953. 

See Robertson, 18 Va. App. at 638, 445 S.E.2d at 715. He 

produced no evidence to that effect. Based upon its observation 

of the venire during voir dire and its view of the prosecutor's 

credibility and demeanor, the trial court determined that the 

prosecutor's reasons for the strikes were race-neutral and 

believable. The record supports this conclusion. 
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 The judgment of the trial court is affirmed. 

 Affirmed.