Jackson v. Com.

• Decision Date: 02 May 1989
• Docket Number: No. 1467-86-2,1467-86-2
• Citation: 8 Va.App. 176,380 S.E.2d 1
• Parties: Kenneth Wayne JACKSON v. COMMONWEALTH of Virgina. Record
• Court: Virginia Court of Appeals

Page 1

380 S.E.2d 1

8 Va.App. 176

Kenneth Wayne JACKSON v. COMMONWEALTH of Virgina.

Record No. 1467-86-2.

Court of Appeals of Virginia.

May 2, 1989.

Rehearing En Banc

Granted June 9, 1989.

Lawrence D. Diehl (Marks, Stokes & Harrison, Hopewell, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, BAKER and COLE, JJ.

BENTON, Judge.

In this appeal, Kenneth Wayne Jackson contends that the Commonwealth exercised its peremptory challenges to exclude blacks from the circuit court jury and that the trial court erred in overruling his motion to dismiss the jury. For the reasons which follow, we reverse the convictions and remand the case for a new trial.

Jackson was tried by jury and convicted of both armed robbery of a store clerk and use of a firearm in the commission of the robbery. During the voir dire examination, the judge asked twenty members of the jury panel several questions regarding their abilities to render a fair and impartial verdict. When asked whether they or any member of their immediate families had been the victim of a robbery, four of the persons responded affirmatively. One of the four stated that this circumstance would affect his ability to be fair; he was stricken from the panel and replaced. During voir dire, the Commonwealth's attorney asked only one question of clarification to one of the three persons who previously had responded affirmatively to the judge's question. Defense counsel asked whether any panel members were related to a police officer or would favor the testimony of a police officer over other parties. Defense counsel also asked whether any panel member was employed by or related to an employee of the oil company that owned the store where the robbery occurred.

The Commonwealth's attorney and defense counsel then exercised four peremptory challenges each to strike eight persons from the panel. Jackson, who is black, moved to dismiss the impanelled jury on the ground that the Commonwealth's attorney unlawfully struck three black persons from the panel. Two black persons remained on the jury.

The trial judge inquired as to the Commonwealth's reasons for striking the three black persons from the panel. The following colloquy occurred:

COMMONWEALTH'S ATTORNEY: Judge, as in all strikes from the jury, they are based on subjective factors often, and not on objective factors in that the Commonwealth has four grantory strikes just like the defendant has without any cause whatsoever being shown. There are still blacks remaining on the jury. The Commonwealth could have struck even more blacks. But the Commonwealth chose not to do so. The Commonwealth, in fact, struck a white as well ... Race had absolutely nothing to do with any ...

COURT: Any subjective reasons that you could state along with what you have already said or articulated for the purposes of the record?

COMMONWEALTH'S ATTORNEY: ... I struck Mr. Sammy McQueen who looked to be about the same age as the defendant.

* * * * * *

COURT: All right, were there any others as related to your other two strikes?

* * * * * *

COMMONWEALTH'S ATTORNEY: The addresses, Judge, was [the] next consideration on those other two [jurors].

Defense counsel responded by stating:

I would like to submit to the Court that Mr. McQueen's age is no where near the defendant's age and that the addresses of the parties in question, that the alleged crime or anywhere near [sic] where this man lived at the time or any time prior thereto.

Immediately following defense counsel's response, the trial court overruled Jackson's motion, finding that the Commonwealth "has not systematically excluded members of the defendant's race from the jury panel."

The United States Supreme Court decision, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), provides the framework for disposition of this appeal. In Batson, the Supreme Court reconsidered the rule of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which held that purposeful or deliberate exclusion of blacks from jury participation violates the equal protection clause. Swain, however, held that in the absence of direct evidence of intentional discrimination, discriminatory intent or purpose could be inferred only by proof of a prosecution's systematic use of peremptory challenges to exclude blacks in a series of cases. 476 U.S. at 90-92, 106 S.Ct. at 1719-1720. Recognizing that the Swain rule "placed on defendants a crippling burden of proof," id. at 92, 106 S.Ct. at 1720, the Court in Batson stated: "For evidentiary requirements to dictate that 'several must suffer discrimination' before one could object would be inconsistent with the promise of equal protection to all." Id. at 95-96, 106 S.Ct. at 1722-1723 (citation omitted). The Court thus concluded that 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." Id. at 96, 106 S.Ct. at 1722-1723.

In order to establish a prima facie case, the defendant "must show that he is a member of a cognizable racial group, ... that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race, ... [and] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the ... jury on account of their race." Id. (citations omitted); see also Taitano v. Commonwealth, 4 Va.App. 342, 346, 358 S.E.2d 590, 592 (1987) (applying Batson ). In making a prima facie case, the defendant is entitled to rely on the fact that peremptory challenges permit " 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1722-1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892-893, 97 L.Ed. 1244 (1953)).

Once the defendant makes the requisite showing, the burden shifts to the Commonwealth to come forward with a racially neutral explanation for removing persons of defendant's race from the panel. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The Commonwealth may not rebut the defendant's prima facie case by stating merely that it challenged jurors of defendant's race on the assumption that they would be partial to the defendant based upon their shared race. Id. "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.' " Id. at 98, 106 S.Ct. at 1723-1724 (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972)). "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. (footnotes omitted).

The Commonwealth argues that, as a threshold matter, Jackson failed to establish a prima facie case of purposeful discrimination because two blacks remained on the jury panel following exercise of all peremptory challenges. The record in the present case reveals that the trial court did not specifically rule on whether Jackson had established a prima facie case of purposeful discrimination. Acknowledging generally the Batson decision, the trial court merely inquired into the Commonwealth's attorney's avowed "subjective reasons" for excluding the three black jurors, without either enumerating the Batson criteria or ruling on whether these criteria were met.

In Taitano, this Court left open the question whether the presence of members of defendant's racial group on the jury after exercise of all peremptory challenges precludes a finding of racial discrimination. 4 Va.App. at 347, 358 S.E.2d at 592. In Taitano, the Commonwealth had used all four of its peremptory challenges to strike black males from the jury panel. Id. at 345, 358 S.E.2d [8 Va.App. 182] at 591. Three black females and two black males remained on the panel. Id. This Court assumed, without deciding, that Taitano had established a prima facie case, id. at 347, 358 S.E.2d at 592, but found the Commonwealth's reasons sufficient to rebut a prima facie showing of purposeful discrimination. Id. at 347-48, 358 S.E.2d at 593. In the present case, the Commonwealth urges this Court to adopt the position that where members of a cognizable racial group remain on the impanelled jury, the defendant has failed to establish a prima facie case of racial discrimination. We decline to do so.

In Batson, the Supreme Court did not specify the quantum of proof necessary to establish a prima facie case of purposeful discrimination. In implementing Batson, however, some courts have refused to find purposeful discrimination in cases where blacks remain on the jury after exercise of all peremptory challenges. See, e.g., State v. Moore, 490 So.2d 556, 558-59 (La.Ct.App.1986) (where "the first jury member selected by both the State and defendant was a black man" and "the State accepted [as a juror] a black woman who was then peremptorily challenged by the defendant."); Clay v. State, 290 Ark. 54, 60, 716 S.W.2d 751, 755 (1986) (no prima facie case where several black persons remained on ultimate panel, State had strikes remaining, and no indication of discrimination in record). Other courts have found that striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the jury panel. See, e.g., United States v. Clemons, 843 F.2d 741, 747 (3d Cir.1988) ("mere presence of a single black on the jury would not necessarily prevent a finding of a prima facie case") cert. dismissed, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988); United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987) ("the striking of a single black juror for a racial reason violates the...