Bethea v. Commonwealth

Decision Date20 February 2018
Docket NumberRecord No. 2014-16-4
Parties James BETHEA, s/k/a James Willie Bethea v. COMMONWEALTH of Virginia
CourtVirginia Court of Appeals

Peter Francescon (J. Andrew Taylor ; Boyce, Leahy & Francescon, Lawyers, on brief), Manassas, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Beales and Decker


James Willie Bethea appeals his conviction for first-degree murder. He challenges his conviction based on a peremptory strike of a venire member and on alleged juror misconduct. For the reasons that follow, we affirm the conviction.


In September 2015, the appellant was tried by a jury for first-degree murder. The trial resulted in a mistrial because the jury could not reach a verdict. In April 2016, the appellant was retried by a different jury. The Commonwealth presented evidence that Charles Adkins (the victim) was killed in his home. In addition, the Commonwealth introduced evidence that the appellant's DNA was found underneath the victim's fingernails and that some of the victim's blood was found in the appellant's vehicle.1

After two days of deliberations, the jury found the appellant guilty of first-degree murder. The trial court sentenced him to life in prison in accordance with the jury's recommendation.


The appellant argues that the trial court erred by denying his motion to set aside the verdict and declare a mistrial because the Commonwealth's peremptory strike of a venire member was impermissibly racially motivated. He also suggests that the court erred by refusing to declare a mistrial due to alleged juror misconduct.

A. Peremptory Strike of Venire Member

The appellant contends that the Commonwealth's proffered race-neutral reasons for peremptorily striking an individual from the jury panel were pretextual. The Commonwealth responds that the record supports the trial court's credibility finding and that the reasons for the strike were race-neutral.

During voir dire , the prosecutor asked the members of the venire if they would "decide this case based on what we present to you" and "focus on the evidence that we give to you." The panel responded "yes" to both questions. The prosecutor also asked if the panel members were "comfortable considering circumstantial evidence," and they responded affirmatively. When she asked whether "anyone ... [thought] that, if we can't tell you the motive, that means there's reasonable doubt," they responded no. The prosecutor then instructed the prospective jurors to raise their hands if they had "a problem" applying legal rules limiting the amount of evidence that the Commonwealth was required to present. The transcript reflects that the panel had "[n]o response."

The Commonwealth peremptorily struck an African–American member of the venire.2 The appellant challenged the Commonwealth's strike, suggesting that it was based on race and violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (recognizing that excluding a potential juror solely based on race is unconstitutional). The appellant was African–American, and the victim was not. The appellant's counsel told the court that he was "aware of a conversation between" the prosecutor and defense counsel from the first trial. He reported that the former defense counsel "was told" by the prosecutor that at the appellant's first murder trial, "the jury was nine-to-three to convict, and the three people who voted to acquit were black and then something about the Black Lives movement." After these representations, the trial court informed the prosecutor that she "need[ed] a race-neutral reason" for striking the venire members.

With regard to the relevant venireman, the prosecutor stated that the person was struck from the panel because she "didn't answer all the questions and appeared emotional at times." The prosecutor added that when she "asked if everyone would promise to consider all of the evidence, and if they would raise their hand[s] to do so, [the prospective juror] didn't raise her hand." The prosecutor reiterated that she asked if "everyone promise[d] to consider all of the evidence in this case, circumstantial and otherwise, and everyone on the panel raised their hand except" the prospective juror at issue. In response, appellant's counsel rejected the Commonwealth's characterization of the venire member as visibly "emotional." He also stated, "I was watching her," and "I was scanning the jury for people to raise their hands."

The judge added that he remembered the prosecutor asking the members of the venire to raise their hands. The judge noted, "I did not scan the jury, but I did not see at that time that anybody did not raise their hand." He then asked if the challenged venire member "nod[ded]." The prosecutor did not respond to the question regarding whether the prospective juror nodded, instead reiterating that "[s]he didn't raise her hand." The trial court held that the Commonwealth provided race-neutral reasons, and it allowed the peremptory strike. Neither the appellant's counsel nor the trial court recognized at that time that the prosecutor's argument in response to the Batson challenge did not restate the questions that she had asked the venire panel during voir dire with complete accuracy.

Following the jury verdict, the appellant filed a motion to set aside the verdict and to declare a mistrial, in part due to the "improper striking of black jurors during jury selection." At that time, the appellant specifically raised a discrepancy between the questions asked by the Commonwealth's attorney during voir dire and the question that she represented she had asked during voir dire when she responded to the appellant's challenge to the peremptory strike under Batson. Counsel also noted that the jurors were not asked to raise their hands if they promised to consider all of the evidence. The Commonwealth responded that the transcript did not reflect several instances when the jury panel members raised their hands, including when the prosecutor asked the panel members if they would consider the circumstantial evidence and "raised her own hand in a demonstrative way." The court denied the motion.3

The appellant argues on appeal that one of the reasons that the Commonwealth gave the trial court for striking the venire member—that she did not raise her hand when asked if she "promise[d] to consider all of the evidence"—was clearly pretextual. He suggests that the reason was pretextual because the prosecutor did not actually ask this question. The most similar questions asked by the prosecutor were whether the venire members would "decide this case based on what we present," would "focus on the evidence that we give," and were "comfortable considering circumstantial evidence." The prosecutor also asked the prospective jurors to raise their hands if they had "a problem" applying legal rules limiting the amount of evidence that the Commonwealth was required to present.

The appellant's assignment of error is founded on the well-recognized principle that the Constitution of the United States "forbids striking even a single prospective juror for a discriminatory purpose." Foster v. Chatman, ––– U.S. ––––, ––––, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) ). "As the United States Supreme Court held in Batson, the peremptory exclusion of a potential juror based solely on the juror's race ‘is purposeful discrimination and a violation of the Equal Protection Clause of the Fourteenth Amendment....’ " Hopkins v. Commonwealth, 53 Va. App. 394, 397–98, 672 S.E.2d 890, 892 (2009) (quoting Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003) ).

Indeed, "[t]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States." Pena–Rodriguez v. Colorado, ––– U.S. ––––, ––––, 137 S.Ct. 855, 859, 197 L.Ed.2d 107 (2017) (quoting McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964) ). "[D]iscrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice,’ damaging ‘both the fact and the perception’ of the jury's role as ‘a vital check against the wrongful exercise of power by the State.’ " Id. (first quoting Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979) ; and then quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1371, 113 L.Ed.2d 411 (1991) ).

The Supreme Court of the United States has provided "a three-step process for determining when a strike is discriminatory," in violation of the Fourteenth Amendment. Foster, ––– U.S. at ––––, 136 S.Ct. at 1747 (citing Batson, 476 U.S. 79, 106 S.Ct. 1712 ); see also Lightfoot v. Commonwealth, 50 Va. App. 723, 727, 653 S.E.2d 615, 617–18 (2007) (en banc ) (discussing Batson 's"three-step test"). "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race...." Foster, ––– U.S. at ––––, 136 S.Ct. at 1747 (quoting Snyder, 552 U.S. at 476, 128 S.Ct. at 1207 ). "[S]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question...." Id. (quoting Snyder, 552 U.S. at 476–77, 128 S.Ct. at 1207 ); see also Lawlor v. Davis, 288 Va. 223, 230, 764 S.E.2d 265, 274 (2014) ("Once a defendant makes a prima facie case, the burden shifts to the Commonwealth ‘to produce race-neutral explanations for striking the juror.’ " (quoting Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412 (2006) ) ). "[T]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Foster, ––– U.S. at ––––, 136 S.Ct. at 1747 (quoting Sn...

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