COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

DENALDO MAURICE HILL 

v. Record No. 1575-94-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA JULY 18, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Alfred W. Whitehurst, Judge 

 W. Thurston Harville, for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney General 

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

brief), for appellee. 

 Denaldo Maurice Hill (defendant) was convicted by a jury for 

murder, malicious wounding, robbery, abduction, three counts of 

use of a firearm during the commission of a felony, possession of 

a sawed-off shotgun, and wearing a mask in a public place. On 

appeal, defendant complains that the trial court erroneously 

concluded that he peremptorily struck a juror in violation of 

Batson v. Kentucky, 476 U.S. 79 (1992). We disagree and affirm 

the convictions. 

 Both defendant and the Commonwealth are entitled to a jury 

selected free of racial bias and, therefore, race based 

peremptory strikes are unconstitutional and impermissible. Id.

at 89; Georgia v. McCollum, ___ U.S. ___, ___, 112 S. Ct. 2348, 

2357 (1992). Batson and its progeny have established the 

procedures attendant to an allegation of discriminatory jury 

selection. 

 

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

designated for publication. 
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 The [aggrieved party] must make a prima facie

showing that the [other party] has exercised 

peremptory strikes on the basis of race 

[gender]. If this showing is made, the 

burden shifts [to such other party] to 

articulate a racially [gender] neutral 

explanation for striking the jurors in 

question. If the court determines that the 

proffered reasons are race [gender] neutral, 

the [aggrieved party] should be afforded an 

opportunity to show why the reasons, even 

though facially . . . neutral, are merely 

pretextual and that the challenged strikes 

were based on race [gender]. 

James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 

(1994) (citations omitted); Purkett v. Elem, ___ U.S. ___, ___, 

115 S. Ct. 1769, 1770-71 (1995); Robertson v. Commonwealth, 18 

Va. 635, 637-38, 445 S.E.2d 713, 714 (1994). If a party 

undertakes an explanation of disputed strikes before the trial 

court finds a prima facie case of racial discrimination, that 

issue is "waived" and becomes "irrelevant." Barksdale v. 

Commonwealth, 17 Va. App. 456, 459, 438 S.E.2d 761, 763 (1993) 

(en banc) (citation omitted). 

 'In evaluating the race-neutrality of an 

attorney's explanation, a court must 

determine whether, assuming the proffered 

reasons for the peremptory challenges are 

true, the challenges violate the Equal 

Protection Clause as a matter of law.' If 

not, the 'decisive question' for the trial 

judge . . . becomes 'whether counsel's raceneutral explanation for a peremptory 

challenge should be believed,' and, 'once 

that has been settled, there seems nothing 

left to review.' 

Id. at 459-60, 438 S.E.2d at 763 (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 
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on appeal,' which should be disturbed only if 'clearly erroneous.'" 

Id. at 460, 438 S.E.2d at 763 (citation omitted). Thus, we must 

affirm a decision of the trial court that is supported by credible 

evidence. Winfield v. Commonwealth, 12 Va. App. 446, 453, 404 

S.E.2d 398, 402 (1991). 

 Here, defendant, a black male, initially struck three white 

females and one white male from the venire. In accord with Batson

protocols, the Commonwealth requested that "defendant state on the 

record the reasons for his strikes," and defendant immediately 

proceeded with an explanation for each. Thereafter, the trial 

court concurred in the Commonwealth's argument that defendant's 

"reasons" were "not good enough" to withstand Batson scrutiny and 

disallowed the strikes. The selection procedure then began anew 

with the reconstituted venire, and defendant's peremptory strikes 

were again challenged by the Commonwealth. Defendant once more 

offered justification for each strike and all were approved as race 

neutral by the court, save Keith Dyer, a white male. 

 Defendant explained that "Dyer is a school teacher who . . . 

was the victim of an assault," and, although "he didn't have to go 

to the hospital," had suffered from "a crime of violence." Because 

defendant was "on trial for a crime of violence," defendant was 

"not comfortable taking [a] chance" with Dyer's impartiality.1

 In 

response, the Commonwealth acknowledged that this explanation 

 

 1This explanation contrasted with defendant's earlier 

comment, during voir dire, that, "Dyer is a schoolteacher 

somewhere or another, and he was assaulted. I don't make that 

any big deal, Judge, so I don't have a motion." 
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"sounds good," but noted that defendant did not remove a "black 

female [whose] baby's father was [murdered] . . . two months ago, 

three months ago." Finding, therefore, that defendant's facially 

race-neutral explanation had not been equally applied to all 

venirepersons, the trial court implicitly concluded that it was 

pretextual and disallowed the strike. 

 As a threshold issue, defendant argues that the trial court 

did not find a prima facie case of racial discrimination 

indispensable to a Batson challenge. However, this procedural 

defect was waived when defendant explained his strikes without 

first presenting that issue before the court. 

 Defendant next complains that the trial court erroneously 

concluded that defendant's "reasons for his strikes were not 

sufficient." However, the record clearly discloses that defendant 

did not employ his rationale for the Dyer strike to all 

venirepersons. If the reason asserted for a strike is not 

consistently applied to all members of a venire, it is not an 

acceptable race-neutral explanation. Broady v. Commonwealth, 16 

Va. App. 281, 285, 429 S.E.2d 468, 471 (1993). 

 Thus, the evidence provided ample support to the decision of 

the trial court, and, accordingly, we affirm the convictions.2

 Affirmed. 

 

 2For the first time on appeal, defendant also contends that 

Batson principles do not apply to a "minority defendant's strikes 

of majority jurors." However, an "issue . . . not presented to 

the trial court" will not be considered "for the first time on 

appeal." Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 

S.E.2d 630, 631 (1991); Rule 5A:18.