Moats v. Com.

• Decision Date: 23 April 1991
• Docket Number: No. 1427-89-3,1427-89-3
• Citation: 12 Va.App. 349,404 S.E.2d 244
• Parties: Leif Eric MOATS, s/k/a Lief Eric Moats v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 244

404 S.E.2d 244

12 Va.App. 349

Leif Eric MOATS, s/k/a Lief Eric Moats v. COMMONWEALTH of Virginia.

No. 1427-89-3.

Court of Appeals of Virginia.

April 23, 1991.

Sa'ad El-Amin, for appellant.

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

Present: COLEMAN, KEENAN and MOON, JJ.

MOON, Judge.

The appellant, Lief Eric Moats, was convicted by a jury of first degree murder, robbery, and the use of a firearm in the commission of murder, for which he was sentenced to life, forty years, and two years imprisonment, respectively. On appeal, he argues that his convictions should be reversed because: (1) the jury panel before which he was tried contained no African-Americans; (2) the trial court denied his request to be permitted to impeach the prosecution's witnesses with prior juvenile convictions; (3) the trial court refused to suppress evidence obtained in a search of his home and car even though relevant facts had been excluded from the affidavit; and (4) the evidence was insufficient for the court to grant instructions on first and second degree murder and to support a conviction of first degree murder. Finding no reversible error, we affirm the convictions.

On appeal, we construe the evidence in the light most favorable to the Commonwealth, granting to it all inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On December 5, 1988, Leo Coolidge was found dead in the Mt. Sidney Food Market, a convenience store he operated. He was shot in the back three times with .38/. 357 caliber bullets. Eric Moats admitted to Devon Smith that he and his two brothers, Stacy and Kim, went to the Mt. Sidney Food Market and robbed and killed Coolidge. Before the robbery, appellant showed Smith a pistol he kept under the seat of his car. Appellant told Smith that he and Stacy Moats went into the convenience store while his brother, Kim Moats, waited outside in the car. Appellant stated that he took approximately $200 from Coolidge. During the robbery, Coolidge reached under the counter and appellant shot him in the back three times.

Some time after the robbery but before Christmas, appellant tried to sell a . 38 caliber handgun to Roger Keener. Keener testified that he and the appellant test-fired the gun into a fencepost. The ballistic characteristic of the slugs removed from the fencepost matched those found in the body of the victim. Keener's account was corroborated by Jeffrey Argenbright, who was present during the attempted sale.

Devon Smith was a friend of the Moats brothers. Notwithstanding the friendship, he went to the police and offered assistance in their investigation of the murder of Coolidge in the hope of obtaining leniency for his mother who had been arrested on charges of distribution of cocaine.

Appellant first asserts that it was error for the trial court to refuse to quash venire panel because of the absence of African-Americans on the jury panel. To prevail on this issue, the appellant "must demonstrate purposeful or deliberate exclusion of blacks from jury service on the basis of race. Such discrimination 'may not be assumed or merely asserted' but must be proved." Watkins v. Commonwealth, 229 Va. 469, 492, 331 S.E.2d 422, 438 (1985) (quoting Swain v. Alabama, 380 U.S. 202, 203, 85 S.Ct. 824, 826, 13 L.Ed.2d 759 (1965)). In the Watkins case, as in this case, the defendant was African-American, the victim was white, and all members of the jury were white. The Court stated: "[A] black defendant is not constitutionally entitled to a jury containing members of its own race." Id., 229 Va. at 492, 331 S.E.2d at 438.

"A defendant does have a constitutional right, however, to be tried by jury members selected pursuant to neutral and non-discriminatory guidelines." Gray v. Commonwealth, 233 Va. 313, 335, 356 S.E.2d 157, 169, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). An accused makes out a prima facie case of racial discrimination by "[a] showing of a substantial disparity between the proportion of eligible [blacks] in the county's population and their proportion on juries ... coupled with positive proof of racial discrimination or with a showing that the selection process left open an opportunity for discrimination." Spratley v. Paderick, 528 F.2d 733, 734 (4th Cir.1975).

"Actually, whether the presence of a few [blacks] on a venire containing many names is evidence tending to prove or disprove racial discrimination depends upon the proportion of [blacks] and whites who are qualified for jury service.... Fairness in selection does not require proportionate representation of race upon a jury venire."

Hairston v. Peyton, 268 F.Supp. 229, 232 (W.D.Va.1967) (quoting Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953)).

"Assessing the fairness and reasonableness of a group's representation requires a comparison between the percentage of the 'distinctive group' on the qualified jury wheel and the percentage of the group among the population eligible for jury service in the division." United States v. Rodriguez, 776 F.2d 1509, 1511 (11th Cir.1985) . The Commonwealth has stipulated that Augusta County is four percent black and that no blacks were called for jury duty. The record establishes that "almost one hundred" potential jurors were called. Of this original number, one African-American, Mr. Vaughn, was summoned. Mr. Vaughn was on vacation at the time and was excused from jury service at his own request. The record fails to establish the total population of Augusta County, which would be necessary to make a meaningful statistical comparison to determine the probability that this outcome was due to random chance. Appellant elicited testimony that it was common for felony cases in Augusta County to be tried by all white juries; however, appellant failed to offer numerical evidence to indicate the proportion of African-Americans that historically have served as jurors in Augusta County.

Under similar circumstances, courts have sustained verdicts returned by all white juries. See Robertson v. Riddle, 404 F.Supp. 1388 (W.D.Va.1975); Gray, 233 Va. at 335-38, 356 S.E.2d at 169-71; Watkins, 229 Va. at 491-92, 331 S.E.2d at 438-39. Courts regularly uphold convictions where the disparity between African-Americans in the population and those serving on juries exceed the difference found in this case. See United States v. Tuttle, 729 F.2d 1325 (11th Cir.1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985); United States v. Pepe, 747 F.2d 632, 648-49 (11th Cir.1984); see generally Rodriguez, 776 F.2d at 1511 ("Although precise mathematical standards are not possible, this circuit has consistently found that a prima facie case of underrepresentation has not been made where the absolute disparity between the percentages does not exceed ten percent").

Assuming for argument's sake that appellant's evidence was sufficient to establish a substantial disparity, the record contains no evidence of intentional racial discrimination or that the selection process left open the opportunity for such discrimination. Code § 8.01-345 is made applicable to the selection of criminal juries by Code § 19.2-260. Code § 8.01-345 requires that "jury commissioners shall utilize random selection techniques, either manual, mechanical or electronic, using a current voter registration list and ... other such lists as may be designated and approved by the chief judge of the circuit, to select jurors ... to be placed on the master jury list." The evidence adduced shows that jury commissioners never hand-picked jurors. The jury selection process in Augusta County is done by random computer selection from the voter registration list. The voter registration list does not indicate the race of the prospective jurors and jury commissioners have no way of knowing the race of prospective jury members until they arrive. Code § 8.01-345 sets out the procedure for jury selection and no evidence suggests that this selection process was not followed. Based on this evidence, appellant has failed to show intentional racial discrimination or that the juror selection process left open this opportunity. For these reasons, we hold that appellant's evidence was insufficient to establish a prima facie case of racial discrimination.

Appellant contends that he was denied his right to confront witnesses because he was not permitted to use juvenile convictions for impeachment purposes. The "defendant's right of confrontation is paramount to the State's policy of protecting juvenile offenders, so that the right effectively to cross-examine a witness to show bias, a specific attack on the credibility, outweighs any embarrassment to the witness resulting from a disclosure of his juvenile court record." Fulcher v. Commonwealth, 226 Va. 96, 99, 306 S.E.2d 874, 876 (1983) (emphasis added) (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). However, a court...