Taitano v. Com.

• Decision Date: 07 July 1987
• Docket Number: No. 0032-86-1,0032-86-1
• Citation: 358 S.E.2d 590,4 Va.App. 342
• Court: Virginia Court of Appeals
• Parties: James Edward TAITANO v. COMMONWEALTH of Virginia. Record

Page 590

358 S.E.2d 590

4 Va.App. 342

James Edward TAITANO v. COMMONWEALTH of Virginia.

Record No. 0032-86-1.

Court of Appeals of Virginia.

July 7, 1987.

Paul M. Lipkin (Robert H. Anderson, Jr., Mary G. Commander, Goldblatt, Lipkin, Cohen, Anderson & Legum, P.C., Norfolk, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLE and HODGES, JJ.

COLE, Judge.

James Edward Taitano was tried by a jury and convicted of first-degree murder and the use of a firearm in the commission of a felony. He contends on this appeal that the conviction should be reversed because (1) the Commonwealth's peremptory challenges were racially motivated in violation of his sixth and fourteenth amendment rights, and (2) the Commonwealth's failure to furnish an alleged exculpatory statement of one of its witnesses violated his due process rights. Finding no error, we affirm.

I. Peremptory Challenges

In the course of impaneling the jury, the Commonwealth used its four peremptory challenges to strike four black males from the panel. Taitano used his four peremptory challenges to strike three white males and one white female. The resulting panel consisted of six white males, one white female, two black males, three black females, and one alternate, a white male. After the selection of the jury and before opening statements, Taitano, a black male, moved the court to dismiss the jury and impanel a new jury on the ground that the peremptory challenges made by the Commonwealth were racially motivated. His motion was overruled. ¹ Defendant renewed his motion after trial and prior to sentencing. An evidentiary hearing was held on June 4, 1985, at which time the Commonwealth attorney explained his reasons for peremptorily striking the four black males. He struck two men because they lived in high crime areas and were approximately the same age as the defendant. A third juror was struck because he lived approximately eight blocks from where the defendant was arrested, he was about the same age as the defendant, he had been struck from a jury the week before, and he came to court that day dressed as if he were going to work at the shipyard. The Commonwealth attorney used his final strike to eliminate from the panel a man whose personal appearance concerned him, and who lived less than two blocks from where the defendant was arrested and near members of defendant's family. The trial court concluded that the Commonwealth's strikes were not racially motivated and denied Taitano's motion for a new trial.

Taitano's first contention is that the trial court erred in overruling his motion for a new trial. We disagree. On appeal of a criminal conviction this court must view the evidence in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. Crumble v. Commonwealth, 2 Va.App 231, 233, 343 S.E.2d 359, 361 (1986). A conviction will be affirmed unless it appears from the evidence that it is plainly wrong or without evidence to support it. Sutphin v. Commonwealth, 1 Va.App. 241, 243, 337 S.E.2d 897, 898 (1985).

The question whether the Commonwealth's peremptory strikes were racially motivated is controlled by the decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the court reaffirmed the principle first recognized in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), that the equal protection clause is violated by the purposeful or deliberate exclusion of blacks from jury participation. The Batson decision, however, rejected the evidentiary requirement set forth in Swain, which required a defendant to show a history of systematic use of peremptory challenges to exclude blacks. In Batson the Court held that a defendant could establish a prima facie case of purposeful discrimination in the selection of petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's own trial. 106 S.Ct. at 1722.

Under Batson, a defendant may make out a prima facie case of purposeful discrimination by showing that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 1721. To establish a prima facie case, the defendant must first 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 may rely on the fact that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Id. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). Finally, the defendant must show that these facts, together with any other relevant circumstances, raise an inference that the prosecutor used peremptory challenges to exclude jurors on account of their race. Id.

Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result."

Id. 106 S.Ct. at 1721 (citations omitted).

For purposes of this appeal we assume, without deciding, that Taitano made out a prima facie case of purposeful discrimination by the Commonwealth. ² The Commonwealth attorney, however, provided racially neutral explanations for his peremptory strikes. To satisfy Batson, the Commonwealth attorney's explanation need not rise to the level justifying exercise of a challenge for cause. It is not enough, however, for the Commonwealth attorney to merely state that he challenged jurors of the defendant's race on the assumption that they would be partial to the defendant because of their shared race. Batson, 106 S.Ct. at 1723. Nor may the Commonwealth attorney rebut the defendant's prima facie case by making general assertions either denying that he had a discriminatory motive or "affirming his good faith in individual selections." Id. (citations omitted). The Commonwealth attorney must articulate a neutral explanation related to the particular case to be tried.

In the instant case, the Commonwealth attorney articulated clear and specific non-racial reasons for striking each juror. With respect to each of the jurors struck, the Commonwealth attorney stated that he was concerned because they lived near the defendant or near the scene of the crime, or in areas of "high crime" generally. The Commonwealth attorney also considered the age, dress, and demeanor of the prospective jurors in exercising his peremptory challenges. These specific, neutral reasons are sufficient to rebut a prima facie case of purposeful discrimination. Cf. United States v. Mathews, 803 F.2d 325, 329-30 (7th Cir.1986); People v. Simpson, 121 A.D.2d 881, 881-82, 504 N.Y.S.2d 115, 117 (1986); Bueno-Hernandez v. State, 724 P.2d 1132, 1135 (Wyo.1986). The Commonwealth attorney did not simply make general assertions denying any discriminatory motive. Cf. Clark v. City of Bridgeport, 645 F.Supp. 890, 898 (D.Conn.1986). The jury panel selected consisted of seven white jurors and five black jurors. Furthermore, the case itself presented no racial issues. Both the defendant and the victim were black, as were the eyewitnesses who testified at trial. Cf. Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144, 151 (1986). We find no error in the trial court's holding that the peremptory challenges were not racially motivated.

II. Discovery Issue

Prior to trial, Taitano made a motion for discovery, requesting, inter alia, "all information of whatever form, source, or nature which tends to exculpate the defendant either through indication of his innocence or the potential impeachment of any government witnesses, which the Commonwealth or its agents has or knows about." In response to this request the Commonwealth attorney stated that "[n]o evidence exists to exculpate the defendant as the person who killed James Perkins Pope."

The appellant contends that the Commonwealth attorney had in his possession a statement containing exculpatory evidence given by Keith H.W. Preston to the Norfolk police one day after the shooting of James Pope, and that the failure to give him the statement was a violation of his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Taitano first discovered the existence of Preston's statement when they were both inmates in the Norfolk jail after Taitano's trial, while Taitano was awaiting sentencing. On June 27, 1985, he filed a motion for a new trial, stating that he had discovered new and material evidence since the trial; that the evidence was so material that it would probably produce a different result; and that the Commonwealth had in its possession knowledge that there was a witness who gave a statement to the Commonwealth which impeached the key witness for the prosecution. The trial judge scheduled a hearing on the motion on July 23, 1985, which was continued to December 19, 1985, to allow time for the trial transcript to be prepared.

Taitano does not dispute the fact that Preston's statement, standing alone, is inculpatory and not exculpatory. He contends that a reading of Preston's statement together with the testimony of a key Commonwealth witness, Martin Griffin, creates doubt as to the ability of Griffin to have seen what he claims to have seen if Preston's version of the events is correct. He argues that Griffin's testimony was the key to the Commonwealth's case and had he been able to challenge Griffin's credibility with these additional contradictions, the jury...