Christina Maria Keene v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
CHRISTINA MARIA KEENE
MEMORANDUM OPINION * BY
v. Record No. 0618-94-3 JUDGE LARRY G. ELDER
JULY 5, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Lawrence D. Gott (Office of the Public Defender,
on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Christina Maria Keene (appellant) appeals her convictions
for involuntary manslaughter in violation of Code § 18.2-36 and
reckless driving in violation of Code § 46.2-864. Appellant
contends that the trial court erred in (1) sustaining the
Commonwealth's Batson challenge, thereby allowing black juror
Adams to be seated as part of the jury panel; and (2) overruling
appellant's motion to strike juror Childress for cause. Because
the trial court committed no error, we affirm appellant's
convictions.
On July 3, 1993, appellant accidentally caused the vehicle
she was operating to crash through the wall of a hotel room at
the Stratford Inn in Danville, striking and killing one the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
room's occupants. On February 2, 1994, appellant, who is black,
was tried by a jury on charges of involuntary manslaughter and
reckless driving. Before the jury was empaneled, appellant made
motions to strike two venirepersons, but the trial court
overruled the motions. Appellant was convicted on both counts.
First, we hold that the trial court did not err in refusing
to allow appellant to peremptorily strike juror Adams from the
venire. A peremptorily-stricken juror's rights may be asserted
by the defendant or the Commonwealth. Georgia v. McCollum, __
U.S. __, 112 S. Ct. 2348, 2359 (1992); Robertson v. Commonwealth,
18 Va. App. 635, 637 n.2, 445 S.E.2d 713, 714 n.2 (1994). As it
is the juror's rights that are being protected, it is of no
import that appellant and Adams were both black. See Currin v.
State, 638 N.E.2d 1319 (Ind. App. 1994); see generally McCollum,
__ U.S. at __, 112 S. Ct. at 2357 (1992).
In order to establish a Batson challenge,
the [Commonwealth] must make a prima facie showing that
the [defendant] has exercised peremptory strikes on the
basis of race. Powers v. Ohio, [499 U.S. 400, 409],
111 S. Ct. 1364, 1370 (1991). If this showing is made,
the burden shifts to the [defendant] to articulate a
racially neutral explanation for striking the jurors in
question. Batson, 476 U.S. 96-97, 106 S. Ct. at
1722-23. If the court determines that the proffered
reasons are race-neutral, the [Commonwealth] should be
afforded an opportunity to show why the reasons, even
though facially neutral, are merely pretextual and that
the challenged strikes were based on race. United
States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991)
[subsequent history omitted]. But, ultimately, the
trial court must determine whether the [Commonwealth]
has carried [its] burden of proving purposeful
discrimination. Batson, 476 U.S. at 98. On appeal,
the trial court's findings will not be reversed unless
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they are clearly erroneous. Hernandez v. New York, 500
U.S. 352, 369, 111 S. Ct. 1859, 1871 (1991).
James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398
(1994). A trial court's decision disposing of a Batson issue is
accorded great deference and should not be disturbed on appeal if
supported by credible evidence. Broady v. Commonwealth, 16 Va.
App. 281, 285, 429 S.E.2d 468, 471 (1993).
In this case, when appellant "undertook to articulate
reasons for striking [Adams] without first raising the procedural
issue of whether a prima facie case had been established, the
issue was waived and became irrelevant." Barksdale v.
Commonwealth, 17 Va. App. 456, 459, 438 S.E.2d 761, 763 (1993)(en
banc).
The trial court ordered additional voir dire to be conducted
after juror Adams was the only one questioned about her possible
sympathy for appellant. We find nothing in the record to
indicate that Adams' responses were any more "pro-Commonwealth"
than the other venirepersons who were questioned. The trial
court heard and observed each venireperson state that appellant's
youth would not engender sympathy for appellant. In light of
these circumstances, we cannot say that the trial court was
clearly erroneous in deciding that appellant did not offer a
race-neutral reason for striking Adams from the panel.
Second, we hold that the trial court did not err in refusing
to strike juror Childress for cause. "An accused is . . .
entitled to an impartial jury under the Virginia Constitution as
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a matter of legislative mandate, and by the Rules of the Virginia
Supreme Court." Reynolds v. Commonwealth, 6 Va. App. 157, 164
n.2, 367 S.E.2d 176, 179 n.2 (1988)(citation omitted); Code
§ 8.01-358; Rule 3A:14. As we have stated,
when making determinations as to the qualifications of
jurors, the trial judge is vested with great
discretion. Because of the trial judge's presence at
the trial, the trial judge is in a unique position to
observe the demeanor of the challenged juror and to
evaluate all aspects of her testimony. The trial
judge's discretion in these matters will not be
overturned "unless we say . . . that it was erroneous."
Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 390, 349
S.E.2d 903, 908 (1986)(citation omitted).
In this case, juror Childress stated that she viewed the
accident scene the day after the accident occurred, approximately
seven months before appellant's trial began. Childress' visit to
the accident scene was not an attempt to receive evidence, nor is
there any indication that she conveyed her knowledge of the
accident scene to her fellow jurors during voir dire, trial, or
deliberations. Because Childress was not yet a juror in
appellant's trial, no improper motivation can be ascribed to her,
and nothing in the record indicates that familiarity with the
accident scene affected Childress or was communicated to her
fellow jurors. See, e.g., McGuire v. Howard, 203 Va. 965, 969,
128 S.E.2d 281, 284 (1962). Compare Litz v. Harman, 151 Va. 363,
144 S.E. 477 (1928). Finally, the trial judge satisfied himself
during voir dire that Childress could "hear the case and consider
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only the evidence disclosed at trial as the basis of [her]
verdict." Foley v. Commonwealth, 8 Va. App. 149, 154, 379 S.E.2d
915, 918, aff'd on reh'g en banc, 9 Va. App. 175, 384 S.E.2d 813(1989).
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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