Faison v. Hudson

• Decision Date: 17 April 1992
• Docket Number: No. 910968,910968
• Citation: 243 Va. 397,417 S.E.2d 305
• Court: Virginia Supreme Court
• Parties: William Ivory FAISON, et al. v. Gail M. HUDSON, Administrator of the Estate of Ulus Grant Hudson, Jr., Deceased. Record

Page 305

417 S.E.2d 305

243 Va. 397

William Ivory FAISON, et al. v. Gail M. HUDSON, Administrator of the Estate of Ulus Grant Hudson, Jr., Deceased.

Record No. 910968.

Supreme Court of Virginia.

April 17, 1992.

Trent S. Kerns, Richmond (Bradford T. Johnson, Kerns & Kastenbaum, on briefs), for appellants.

Larry A. Pochucha, Richmond (Dennis W. Dohnal, Bremner, Baber & Janus, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

In this appeal, we determine whether the peremptory striking of a black person from the jury panel violated the rule first pronounced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and extended to civil litigation in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Other issues relate to jury instructions and to the admissibility of a witness's prior consistent statement.

I

Gail M. Hudson, administrator of the estate of her deceased husband, Ulus Grant Hudson, Jr. (the Administrator), brought a wrongful death action against William Ivory Faison and Faison & Faison Hauling, Inc. (collectively, Faison). The Administrator alleged that Hudson's death was caused by Faison's negligent operation of a motor vehicle.

On October 17, 1989, a dump truck operated by Faison collided with an automobile driven by Hudson, resulting in Hudson's death. The collision occurred at the intersection of Nine Mile Road and Airport Drive in Henrico County when Hudson made a left turn in front of Faison's approaching truck. There was testimony that each operator had proceeded on a green traffic light.

A jury returned a verdict in favor of the Administrator in the amount of $410,000, and the trial court entered judgment on the verdict. Faison appeals.

II

The Administrator is a white person; William Ivory Faison is a black man. During jury selection, 13 veniremen were qualified for the jury panel. Twelve were white; one venireman, Dorothy Gregg, was black. Before the jury was sworn and the remaining veniremen were excused, Faison objected to the Administrator's use of a peremptory strike to remove Gregg from the panel. ^* Faison contended at trial, as he does on appeal, that the striking of Gregg was racially motivated and in contravention of Batson.

When the trial court asked counsel for the Administrator to respond to Faison's objection, counsel stated that he did not think that the ruling in Batson, a criminal case, applied to a civil case. The Administrator's counsel also stated the following:

In addition, I would advise the Court that there were neutral reasons for striking that juror, one being her age of 43 being exactly the same age as the defendant in this case.

Additionally, in terms of attitude, demeanor, it was just the collective impression of [co-counsel] and myself that other jurors would be better suited to try this case. Her occupation as well was another factor, as a radiologist technologist at [the Medical College of Virginia].

In overruling Faison's objection, the trial court opined as follows:

Well, I don't think that you have given me a racially neutral reason. However, as the law stands now, as I understand it, Batson has not been extended to civil cases and I don't feel that at this time I can have any control over that, but I will for the record find that there's not a racially neutral explanation [for striking this venireman].

(Emphasis added.)

In Batson, the Supreme Court held, inter alia, that the equal protection clause forbids a prosecutor to challenge a potential juror, by exercising a peremptory strike, solely on account of the juror's race or on the assumption that black jurors as a group will be unable impartially to consider a state's case against a black defendant. 476 U.S. at 89, 106 S.Ct. at 1719; accord Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Edmonson, decided after the trial of the present case, the Supreme Court extended the Batson holding to civil cases. 500 U.S. at ----, 111 S.Ct. at 2080, 114 L.Ed.2d 660. The Court stated its ruling as follows:

We must decide ... whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors.

Id. In light of Edmonson, therefore, the trial court erroneously ruled that Batson did not apply in the present case.

The Administrator contends, nonetheless, that the trial court's ruling should be affirmed because (1) the Batson procedural requirements were not followed, and (2) the trial court's finding that the Administrator failed to advance racially neutral reasons for excluding juror Gregg is not supported by the record.

A

With respect to the procedural contention, the Administrator claims that "at the time of Faison's motion there was no evidence before the court which would establish a prima facie case of jury discrimination nor did Faison direct the court's attention to such evidence." Quoting Batson, the Administrator asserts that, in order to establish a prima facie case of discrimination, the moving party must:

first ... show that he is a member of a cognizable racial group ... and that the [opposition] 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 [opposition] used that practice to exclude the veniremen from the petit jury on account of their race.

476 U.S. at 96, 106 S.Ct. at 1723 (citations omitted).

Under the circumstances in the present case, we do not think that Batson required the trial court to make an explicit finding that Faison had established a prima facie case of discrimination. Implicit in the trial court's ruling that counsel had not stated "a racially neutral explanation" was a finding that Faison had established a prima facie case. Moreover, we agree that Faison presented sufficient facts to establish a prima facie case of discrimination. Faison is a black man, and the Administrator removed from the venire the only member of Faison's race. Additionally, Faison was entitled to rely on the fact, which cannot be disputed, that peremptory challenges constitute a practice that permits " 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)).

Furthermore, when the Administrator's counsel undertook to articulate reasons for striking Gregg without first raising the procedural issue whether a prima facie case had been established, the issue was waived and became irrelevant. See United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989) (court would not address question whether defendant established prima facie showing when prosecutor articulated reasons for peremptory strikes). For these reasons, we reject the Administrator's procedural contention.

B

Next, we consider whether the record supports the trial court's finding that the Administrator's counsel failed to advance racially neutral reasons for striking Gregg. 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. See, e.g., Stockton v. Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 206, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991); Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990); Spencer v. Commonwealth, 238 Va. 563, 572, 385 S.E.2d 850, 855 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989).

More on point to the issue presented, the Supreme Court in Batson stated that a trial court has "the duty to determine if the defendant has established purposeful discrimination." 476 U.S. at 98, 106 S.Ct. at 1724. Additionally, because "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. n. 21.

Giving the trial court's finding in the present case the appropriate deference, we cannot say that the court abused its discretion or committed manifest error in finding for the record that the Administrator had not given racially neutral reasons for striking Gregg. In view of that finding and of Edmonson, we hold that the trial court erred in allowing the challenged peremptory striking of Gregg. In light of this holding, the other issues raised by Faison in this appeal may arise upon retrial, and, therefore, we will consider them here.

III

Charles W. Layne was called as a witness for the Administrator. At the time of the accident, he was employed as an attendant at a gasoline station located on the southwest corner of the intersection in question. According to Layne, immediately prior to the accident, he was pumping gasoline into Karen Troutman's automobile which was located on the outside portion of the gas pump island. Layne testified that, when he heard the Hudson and Faison vehicles collide, he looked up and noticed that the traffic light controlling the Hudson vehicle was yellow.

Troutman, called as a witness for Faison, testified that her automobile was located on the inside of the gas pump island. She also testified that...