Carter v. Com.

• Decision Date: 16 March 1993
• Docket Number: No. 1634-91-2,1634-91-2
• Parties: Stanley Michael CARTER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 34

428 S.E.2d 34

16 Va.App. 118

Stanley Michael CARTER v. COMMONWEALTH of Virginia.

Record No. 1634-91-2.

Court of Appeals of Virginia.

March 16, 1993.

Bruce M. Steen, Charlottesville (J. Lloyd Snook, III, McGuire, Woods, Battle & Boothe, Snook & Haughey, on briefs), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: MOON, ELDER and FITZPATRICK, JJ.

FITZPATRICK, Judge.

I.

Appellant, Stanley Michael Carter, was convicted by a jury of: (1) robbery in violation of Code § 18.2-58; (2) forcible sodomy in violation of Code § 18.2-67.1; (3) statutory burglary in violation of Code § 18.2-90; and (4) three counts of rape in violation of Code 18.2-61. ¹ Appellant argues that the trial court erred by overruling his Batson-based constitutional challenge to the Commonwealth's selection of the petit jury, and that the trial court erred by submitting to the jury three separate rape indictments where the facts established that the three acts of forcible intercourse took place at the same location and with the same victim within a three hour time period. We disagree and affirm his convictions.

II. JURY SELECTION--BATSON CHALLENGE

Appellant's trial counsel asked potential jurors whether the respective races of the complaining witness (who is White) and appellant (who is African-American) would affect their ability to render a fair and impartial verdict. Each member of the jury panel answered these questions in the negative. After voir dire, counsel made their peremptory strikes. The Commonwealth's attorney used three of his four peremptory challenges to strike African-Americans from the panel. Appellant's counsel objected to the Commonwealth's use of its peremptory challenges to strike the three African-Americans (Blakey, Childress and Jones), contending that the strikes violated the constitutional standard established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Three African-Americans remained on the jury panel. ² Upon hearing the objection, the trial judge asked the Commonwealth's attorney to state his reasons for the strikes.

The Commonwealth responded:

Judge, with Ms. Blakey, she lives, according to the jury list, at 900 South First Street. We have evidence that the defendant was at least staying at 900 or 90 South First Street.... The second reason is I am quite confident that we have prosecuted some of Ms. Blakey's relatives, they may not be her close relatives, but at least in the range of cousins, for some crimes.

With Gregory Childress, ... we have recently, last term of jury, prosecuted one of his co-workers, the case of Commonwealth v. Sylvester Bright. There is another reason, Lieutenant Jones ... knows Gregory Childress and he told me that we would not want him on the jury, period, and I respect Lieutenant Jones' opinion very much. He himself happens to be black, for whatever that's worth.... He did not give a reason. He just said, we don't want him on the jury, and I have respect for his opinion. That coupled with the fact that we have recently prosecuted one of his co-workers.

With Charles E. Jones ... he has been prosecuted by our office for assault and battery and also Lieutenant Jones said we do not want him on the jury, and I respect Lieutenant Jones' opinion. That's the reason, at least two reasons with each of those people. That has nothing to do with their race.

The trial judge overruled appellant's motion to deny the strikes or to continue the case until a new jury could be impanelled. The judge explained his ruling as follows:

As I understand the Supreme Court's decision, the defendant is entitled to raise the issue, the Commonwealth then has the burden to articulate the reason, or justification, that is neutral. The Commonwealth, I think, has met its burden and then the burden shifts to the defendant to show that is a pretext. I am somewhat concerned that given the number of available strikes, seventy-five percent were directed to black members of the jury. I, however, understand, based on the Supreme Court's decision, that once a legitimate reason is articulated I am bound, unless there is something more by way of evidence to show that there is a mere pretext to deny the defendant's motion.

To me it's a close question when there are available four strikes to the Commonwealth and three of the four strikes exercised are of the black race, however, if I understand the cases correctly they require something more. I admit it is close but at least in my understanding of the Supreme Court's ruling I am going to deny the defendant's motion.

Appellant objected to the judge's ruling, arguing that the Commonwealth's explanations were a mere pretext. This issue was properly preserved for appeal. The jury was sworn and the trial of the case proceeded.

On appeal, appellant argues that his equal protection rights were violated by the prosecutor's use of peremptory challenges to strike persons of appellant's race from the petit jury. We disagree.

The principle that the Equal Protection Clause of the fourteenth amendment precludes a prosecutor from excluding otherwise qualified and unbiased persons from the jury solely on the basis of their race is a well-established part of our constitutional jurisprudence. See Powers v. Ohio, 499 U.S. 400, ----, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 89, 106 S.Ct. at 1718; Swain v. Alabama, 380 U.S. 202, 203-05, 85 S.Ct. 824, 826-27, 13 L.Ed.2d 759 (1965). ³ A prosecutor violates a defendant's equal protection rights by using peremptory challenges in a racially discriminatory manner. In such cases, the initial burden is on the defendant to establish a prima facie case of purposeful or deliberate discrimination. A defendant "may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723. ⁴

To establish a prima facie case:

[T]he 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.

. . . . .

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.... [T]he prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race.... Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections." ... The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.

Id. at 96-98, 106 S.Ct. at 1723-24 (citations and footnotes omitted).

"Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Id. at 98 n. 21, 106 S.Ct. at 1725 n. 21; accord Hernandez v. New York, 500 U.S. 352, ----, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991); Winfield v. Commonwealth, 14 Va.App. 1049, 1049-50, 421 S.E.2d 468, 469 (1992) (en banc). "A trial court, unlike an appellate court, has the opportunity to see and hear the actors. Consequently, we consistently have given deference to a trial court's findings during jury voir dire, and we will not disturb those findings on appeal absent a showing of manifest error or abuse of discretion." Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305, 308 (1992) (emphasis added).

At the conclusion of every Batson challenge, the trial judge has the "duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24. ⁵ It would be helpful for appellate review if the trial judge made specific findings on the record as to: (1) whether the defendant has established a prima facie case of purposeful discrimination; (2) whether the Commonwealth's race-neutral explanation in support of its decision to strike is credible, relates to the parties and case before the court and is sufficient to rebut the defendant's prima facie case; and, if so, (3) why the defendant has not met his or her subsequent burden of showing that the explanations are a mere pretext.

Although the trial judge did not make the specific finding that appellant made out a prima facie case of purposeful discrimination, he did require the Commonwealth to provide race-neutral explanations for the use of the peremptory strikes. Therefore, by implication, the trial judge must have found that the appellant had met his initial burden. The Commonwealth explained the strike of Ms. Blakey on the basis that she lives on the same street as appellant and possibly in the same block. In addition, the Commonwealth was confident that their office had prosecuted some of Ms. Blakey's relatives. Nothing in the record indicates that these explanations were a mere pretext. We find that these reasons are...