Broady v. Com., 1637-91-2

• Decision Date: 27 April 1993
• Docket Number: No. 1637-91-2,1637-91-2
• Citation: 16 Va.App. 281,429 S.E.2d 468
• Parties: Roger Lee BROADY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 468

429 S.E.2d 468

16 Va.App. 281

Roger Lee BROADY v. COMMONWEALTH of Virginia.

Record No. 1637-91-2.

Court of Appeals of Virginia.

April 27, 1993.

Connie Louise Edwards, Jarratt, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, MOON and ELDER, JJ.

MOON, Judge.

Roger Lee Broady, appellant, seeks reversal of his convictions of robbery and statutory burglary. On appeal, he contends that (1) the Commonwealth improperly exercised its peremptory strikes; (2) the trial judge should have recused himself because appellant had been previously convicted of stealing the judge's automobile; (3) the court improperly determined that there was probable cause to arrest appellant; (4) the court improperly permitted a juror to sit on the jury; (5) the co-defendant should have been permitted to testify as to the potential taint of a juror; (6) the evidence was insufficient to prove the appellant guilty of the crimes of robbery and burglary; (7) the jury was improperly instructed; and (8) the court erred in refusing to set aside the jury's verdict. We reverse and remand the robbery conviction because the Commonwealth did not rebut the presumption that its peremptory strikes were racially motivated. We reverse and dismiss the statutory burglary conviction because there was no evidence that entry was accompanied by a breaking.

Shortly before 3:00 p.m. on the afternoon of March 31, 1991, Mr. and Mrs. Lee were entering their room at the Holiday Inn in Emporia, Virginia. As they were doing so, appellant and a companion walked into the room immediately after the Lees. After the Lees told the men to leave the room, appellant grabbed for the room key. The two men backed Mr. Lee up between the two beds. When Mrs. Lee went to help her husband, appellant grabbed her purse. It fell to the bed, and both she and appellant scrambled for it. Appellant ran out of the room with the purse. Mrs. Lee chased him and appellant tossed the purse to his accomplice. The accomplice immediately threw it back to appellant, who "fumbled" it. When Mrs. Lee tried to pick up her purse, appellant pushed Mrs. Lee six to eight feet onto the hood of her vehicle. Appellant retrieved the purse and ran around the building toward the back parking lot.

The police were called to the Holiday Inn at approximately 2:59 p.m. The Lees gave the police a description of one "fairly tall and skinny" black male with a short mustache and wearing a maroon or burgundy jacket. The second description was that of a shorter black male with a "rat's tail" in his hair and wearing a gray or tan leather jacket. They were both described as wearing jeans. The Lees also pointed in the direction in which the two men had fled.

In a wooded area behind the Holiday Inn, about three or four minutes after they had received the call, the police saw appellant and another man walking out of the woods. The two men fled from the police back into the woods, where they were apprehended 150 yards from the Holiday Inn within fifteen to twenty minutes. The two men were wearing burgundy and tan jackets, respectively, as described, and appellant had a "rat's tail" hairstyle. They were handcuffed and returned to the Holiday Inn for identification.

A jury found appellant guilty of robbery and fixed his sentence at ten years in the penitentiary. The jury also found appellant guilty of statutory burglary and fixed his sentence at twelve months in jail and a fine of $1,000.

I. Peremptory Strikes of the Commonwealth

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), declares that racially motivated peremptory strikes are unconstitutional and impermissible. See Winfield v. Commonwealth, 12 Va.App. 446, 448, 404 S.E.2d 398, 400 (1991), aff'd on reh'g en banc, 14 Va.App. 1049, 421 S.E.2d 468 (1992). The Commonwealth here used each of its four strikes to remove black jurors. After the peremptory strikes on each side, the resulting panel had six whites and six blacks. Appellant, who is an African-American, made a Batson challenge and the court asked the Commonwealth to articulate its reason for the strikes.

The Commonwealth stated that it struck the three black men because of their age. The Commonwealth thought that jurors in the same age group as appellant might be more sympathetic to him. At the time of trial, appellant was twenty-five and the three black men struck were twenty-two, twenty-nine, and thirty-three, respectively. The fourth black, a female, was struck because the Commonwealth remembered that she or a member of her family had been a defendant in either a civil or criminal action that involved the Commonwealth attorney's office. The Commonwealth attorney thought she might have "some, perhaps unconscious prejudice toward [his] office."

To satisfy Batson, "[t]he Commonwealth attorney must articulate a neutral explanation related to the particular case to be tried." Taitano v. Commonwealth, 4 Va.App. 342, 346, 358 S.E.2d 590, 592 (1987).

Batson places upon the trial courts the burden of weighing the explanations tendered by prosecutors justifying their use of peremptory strikes, assessing their genuineness, and determining whether they bespeak discriminatory motives. The explanations are typically offered under the pressures of the courtroom. The trial judges, in weighing them, have the opportunity of observing their proponents, of hearing rebuttal by the defense, and of considering the general circumstances of the case. On appeal, we should apply the accepted standards of review, and should uphold the trial court's decision if it is supported by credible evidence.

Winfield, 12 Va.App. at 453, 404 S.E.2d at 402.

However, when it is further demonstrated that facially non-racial reasons are applied systematically to blacks but not whites, the Commonwealth has not overcome the presumption that the strikes were racially motivated. See Reynolds v. Benefield, 931 F.2d 506, 512 (8th Cir.1991); Walton v. Caspari, 916 F.2d 1352, 1361-62 (8th Cir.1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1337, 113 L.Ed.2d 268 (1991). See also United States v. Johnson, 873 F.2d 1137, 1139-40 (8th Cir.1989). Jackson v. Commonwealth, 8 Va.App. 176, 186-87, 380 S.E.2d 1, 67 (1989), aff'd on reh'g en banc, 9 Va.App. 169, 384 S.E.2d 343 (1989).

Here, after the Commonwealth's attorney's explanation and the court's ruling, defense counsel protested that three white men of the same apparent age as appellant were not struck. On defense motion, after argument that the age test had not been applied to white jurors who appeared to be in the same age group, the judge sent the sheriff to determine the ages of the white jurors. The court reported the sheriff's findings: "[Juror] Soles is shown as twenty-one, [Juror] Phillips fooled you, he is thirty seven. Mr. Powell is twenty three."

We recognize that the prosecution may have had some other "race-neutral" reasons for not striking one or more of the white jurors, even though they were the same age. See United States v. Alston, 895 F.2d 1362, 1366-67 (11th Cir.1990). However, after the Commonwealth has asserted a facially race-neutral reason to strike, but has only struck jurors of one race and the reason asserted for the strike is equally applicable to other members of the venire of a different race, the reason asserted is not a satisfactory race-neutral explanation for the Commonwealth's strikes.

Here, appellant pointed out to the trial judge that some white venire members were close in age to the appellant and even ascertained their ages for the record. However, the court did not make further inquiry of the Commonwealth's motivation for its strikes. As a result, the record does not show satisfactory race-neutral reasons for the strikes, if such existed, and does not overcome the presumption of racial motivation for striking only black jurors.

We hold the Commonwealth should have been required to explain its reasons for striking black jurors and not white jurors of the same age in order to overcome the presumption that the strikes were racially motivated. Because this was not done, we hold that the record does not support a finding that the peremptory strikes were made for race-neutral reasons. Therefore, we reverse the robbery conviction and remand to the trial court.

II. Recusal of the Trial Judge

We consider the recusal issue because it may arise again upon retrial. Appellant made a motion prior to the commencement of the case requesting that the trial judge recuse himself as the appellant had previously been convicted of grand larceny of the judge's motor vehicle.

The trial judge denied appellant's motion of recusal based on these articulated reasons:

(A) He had no personal recollection of the individual that had been convicted of the larceny of his vehicle except that his surname was Broady, but for defense representations.

(B) He could not identify the individual involved in the larceny, and his only involvement in the prior proceeding was as owner of the vehicle, as he did not witness the taking.

(C) He did not participate in the prior proceeding as either judge or witness.

(D) The prior proceeding was resolved by a negotiated plea agreement before another judge.

(E) The matters set to be heard were to be heard by a jury which would resolve all issues of fact and would recommend sentencing.

(F) He, as presiding judge, would be primarily dealing with the law in these matters which is determined regardless and irrespective of the identity of the defendant.

(G) The fact that he was the victim of a prior act would not, in his opinion, prevent him from acting fairly and impartially.

"[W]hether a trial judge should recuse himself or herself is measured by whether he or she harbors 'such bias or prejudice as would deny the defendant a fair trial,' and is a matter left to the reasonable discretion of the trial court." Welsh v. Commonwealth, 14 Va.App. 300, 315, 416 S.E.2d...