Lightfoot v. Com.

• Citation: 50 Va. App. 723,653 S.E.2d 615
• Decision Date: 11 December 2007
• Docket Number: Record No. 3133-05-2.
• Court: Virginia Court of Appeals
• Parties: Rodney William LIGHTFOOT v. COMMONWEALTH of Virginia.

653 S.E.2d 615

50 Va. App. 723

Rodney William LIGHTFOOT v. COMMONWEALTH of Virginia.

Record No. 3133-05-2.

Court of Appeals of Virginia, Richmond.

December 11, 2007.

Gregory R. Sheldon, Richmond (Bain-Sheldon, P.L.C., on brief), for appellant.

Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ.

ELIZABETH A. McCLANAHAN, Judge.

UPON A REHEARING EN BANC

A jury convicted Rodney William Lightfoot of three counts of robbery, three counts of using a firearm in the commission of a felony, and being armed while entering a bank with the intent to commit larceny. At trial, Lightfoot made a Batson motion in response to the Commonwealth's use of peremptory strikes to remove two African-American women from the venire, which the trial court denied. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Lightfoot contends the court erred in ruling that he failed to establish a prima facie case of purposeful discrimination under Batson. A panel majority of this Court agreed with Lightfoot and reversed the decision of the trial court. We granted a petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

I. BACKGROUND

Three African-Americans, one male and two females, were included in the venire of twenty potential jurors (after three individuals were released for cause). Using two of its four peremptory strikes, the Commonwealth struck the two African-American females from the venire after completion of voir dire. One was Wanda Mead. The record does not reveal the identity of the second African-American female. The African-American male remained on the jury panel.

During voir dire,¹ the Commonwealth asked, inter alia, if any of the potential jurors had friends or relatives who had been charged with crimes in the past. Two individuals on the venire responded affirmatively, Mead and Thomas Ewing, a Caucasian. Mead stated that a family member had been charged with a traffic offense. Ewing explained that his daughter had been charged with a felony. Like Mead, Ewing was subsequently struck by the Commonwealth. Additionally, in response to a follow-up question by the Commonwealth, an unidentified female on the panel indicated familiarity with one of the Commonwealth's witnesses.

A number of potential jurors also gave affirmative responses to questions by Lightfoot's counsel, indicating a potential for bias. Some of those respondents are unidentified from the record. One unidentified individual stated that he or she went to high school with Lightfoot. Mead also revealed at that time she had visited someone in jail or prison.

After voir dire was completed and the parties exercised their peremptory strikes, Lightfoot made a Batson motion on the grounds the Commonwealth had used two of its four strikes to remove two of the three African-Americans. In further support of the motion (apart from simply pointing to these numbers), Lightfoot's counsel asserted that the Commonwealth did not question either of the two African-American women, whom it struck, and that neither of them responded during voir dire to any of the questions posed by the parties' respective counsel or the trial court. Such circumstances, according to Lightfoot, indicated the Commonwealth improperly struck these two African-Americans based on race.

The Commonwealth denied the assertion of Lightfoot's counsel that the two African-American women did not respond to questioning during voir dire, pointing specifically to Mead's affirmative response to the prosecutor's questioning, along with Ewing, resulting in both being struck by the Commonwealth. The trial court agreed with the Commonwealth finding that Lightfoot's counsel was "not correct" in that assertion. The trial court also ultimately agreed with the Commonwealth that Lightfoot had not established a prima facie case of purposeful discrimination under Batson "based on what [his counsel had] articulated."

II. ANALYSIS

A.

The United States Supreme Court held in Batson that 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 of the United States Constitution." Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). Under Batson's three-step test, a defendant asserting such a violation initially "must show that the individual `is a member of a cognizable racial group,' Yarbrough v. Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309 (2001), cert. denied, 535 U.S. 1060, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002) (quoting Batson, 476 U.S. at 96, 106 S.Ct. at 1723), and `make a prima facie showing that the peremptory strike was made on racial grounds.' Jackson, 266 Va. at 436, 587 S.E.2d at 542." Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412 (2006). "[If] a prima facie case is put before the court, the burden shifts to the prosecution `to produce race-neutral explanations for striking the juror.' The defendant can then argue that the prosecution's explanations were purely a pretext for unconstitutional discrimination. Jackson, 266 Va. at 436, 587 S.E.2d at 542." Id. Under each of Batson's three steps, however, the "burden of persuasion `rests with, and never shifts from, the opponent of the strike.'" Johnson v. California, 545 U.S. 162, 170-71, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995)).²

The trial court's finding in the instant case that Lightfoot failed to establish a prima facie case of racial discrimination³ under step one of Batson "is entitled to great deference" on appeal. Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 (2000) (applying deferential standard of review to Batson's step one determination (citing Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21)).⁴ Therefore, this finding will not be reversed unless we determine it is "clearly erroneous." James v. Commonwealth, 247 Va. 459, 462, 442 S.E.2d 396, 398 (1994) (citing Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)); see United States v Escobar-de Jesus, 187 F.3d 148, 164 (1st Cir.1999) ("[T]he district court's ruling [under step one of Batson] on this fact-sensitive question must be upheld unless it is clearly erroneous."), cited with approval in Johnson, 259 Va. at 674, 529 S.E.2d at 781; United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989) (applying clearly erroneous standard to step one determination).

"To establish a prima facie case, the defendant must ... `identify facts and circumstances that raise an inference that potential jurors were excluded based on their race.'" Juniper, 271 Va. at 407, 626 S.E.2d at 412 (quoting Yarbrough, 262 Va. at 394, 551 S.E.2d at 309); see Johnson, 545 U.S. at 168, 125 S.Ct. at 2416 ("First, the defendant must make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" (quoting Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721) (emphasis added)). This means the defendant may not rely on "some magic number or percentage to trigger a Batson inquiry." Jackson v. Commonwealth, 8 Va.App. 176, 182-84, 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) ("The Supreme Court's mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to the specific numbers or percentages that will constitute or refute a prima facie case."), cited with approval in Johnson, 259 Va. at 674, 529 S.E.2d at 781. Consequently, the "[m]ere exclusion of members of a particular race by using peremptory strikes `does not itself establish ... a prima facie case under Batson.'" Juniper, 271 Va. at 407, 626 S.E.2d at 412 (quoting Yarbrough, 262 Va. at 394, 551 S.E.2d at 309). "[S]o too, the mere inclusion of [a particular race] on a jury does not automatically preclude a finding of a prima facie case...." Jackson, 8 Va.App. at 183, 380 S.E.2d at 5. In other words, the trial court must make a "case-by-case determination whether the facts and any other relevant circumstances raise an inference of discrimination." Id. at 183, 380 S.E.2d at 5.

B.

In this case, we cannot say the trial court was clearly erroneous in its determination that Lightfoot failed to establish a prima facie case under Batson — i.e., finding that the relevant facts and circumstances did not give rise to an inference the Commonwealth was engaged in purposeful racial discrimination when it struck the two African-American women.

(i) Mead

As to Mead, the record amply supports the trial court's ruling. Lightfoot identified no facts or circumstances for the strike from which a discriminatory motive could be inferred. Indeed, the only reason apparent from the record for striking Mead is the same race-neutral reason that would explain the strike of Ewing, a Caucasian. They were the only two potential jurors who responded affirmatively when the Commonwealth asked if anyone on the venire had friends or relatives who had been charged with crimes in the past. In addition, Mead stated during defense counsel's voir dire that she had visited someone in jail or prison. It is well established that a court considering a Batson motion at step one "may consider apparent reasons for the challenges discernible on the record, regardless of whether those reasons were the actual reasons for the challenge." United States v. Stephens, 421 F.3d 503, 515 (7th Cir.2005) (citation omitted). "This consideration of `apparent reasons' is in fact nothing more than a consideration of `all relevant circumstances' when determining whether an inference of discrimination is established." Id...