Denaldo Maurice Hill v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
DENALDO MAURICE HILL
v. Record No. 1575-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JULY 18, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
W. Thurston Harville, for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Denaldo Maurice Hill (defendant) was convicted by a jury for
murder, malicious wounding, robbery, abduction, three counts of
use of a firearm during the commission of a felony, possession of
a sawed-off shotgun, and wearing a mask in a public place. On
appeal, defendant complains that the trial court erroneously
concluded that he peremptorily struck a juror in violation of
Batson v. Kentucky, 476 U.S. 79 (1992). We disagree and affirm
the convictions.
Both defendant and the Commonwealth are entitled to a jury
selected free of racial bias and, therefore, race based
peremptory strikes are unconstitutional and impermissible. Id.
at 89; Georgia v. McCollum, ___ U.S. ___, ___, 112 S. Ct. 2348,
2357 (1992). Batson and its progeny have established the
procedures attendant to an allegation of discriminatory jury
selection.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The [aggrieved party] must make a prima facie
showing that the [other party] has exercised
peremptory strikes on the basis of race
[gender]. If this showing is made, the
burden shifts [to such other party] to
articulate a racially [gender] neutral
explanation for striking the jurors in
question. If the court determines that the
proffered reasons are race [gender] neutral,
the [aggrieved party] 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 [gender].
James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398
(1994) (citations omitted); Purkett v. Elem, ___ U.S. ___, ___,
115 S. Ct. 1769, 1770-71 (1995); Robertson v. Commonwealth, 18
Va. 635, 637-38, 445 S.E.2d 713, 714 (1994). If a party
undertakes an explanation of disputed strikes before the trial
court finds a prima facie case of racial discrimination, that
issue is "waived" and becomes "irrelevant." Barksdale v.
Commonwealth, 17 Va. App. 456, 459, 438 S.E.2d 761, 763 (1993)
(en banc) (citation omitted).
'In evaluating the race-neutrality of an
attorney's explanation, a court must
determine whether, assuming the proffered
reasons for the peremptory challenges are
true, the challenges violate the Equal
Protection Clause as a matter of law.' If
not, the 'decisive question' for the trial
judge . . . becomes 'whether counsel's race-
neutral explanation for a peremptory
challenge should be believed,' and, 'once
that has been settled, there seems nothing
left to review.'
Id. at 459-60, 438 S.E.2d at 763 (citation omitted). "A 'trial
court's decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great deference
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on appeal,' which should be disturbed only if 'clearly erroneous.'"
Id. at 460, 438 S.E.2d at 763 (citation omitted). Thus, we must
affirm a decision of the trial court that is supported by credible
evidence. Winfield v. Commonwealth, 12 Va. App. 446, 453, 404
S.E.2d 398, 402 (1991).
Here, defendant, a black male, initially struck three white
females and one white male from the venire. In accord with Batson
protocols, the Commonwealth requested that "defendant state on the
record the reasons for his strikes," and defendant immediately
proceeded with an explanation for each. Thereafter, the trial
court concurred in the Commonwealth's argument that defendant's
"reasons" were "not good enough" to withstand Batson scrutiny and
disallowed the strikes. The selection procedure then began anew
with the reconstituted venire, and defendant's peremptory strikes
were again challenged by the Commonwealth. Defendant once more
offered justification for each strike and all were approved as race
neutral by the court, save Keith Dyer, a white male.
Defendant explained that "Dyer is a school teacher who . . .
was the victim of an assault," and, although "he didn't have to go
to the hospital," had suffered from "a crime of violence." Because
defendant was "on trial for a crime of violence," defendant was
1
"not comfortable taking [a] chance" with Dyer's impartiality. In
response, the Commonwealth acknowledged that this explanation
1
This explanation contrasted with defendant's earlier
comment, during voir dire, that, "Dyer is a schoolteacher
somewhere or another, and he was assaulted. I don't make that
any big deal, Judge, so I don't have a motion."
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"sounds good," but noted that defendant did not remove a "black
female [whose] baby's father was [murdered] . . . two months ago,
three months ago." Finding, therefore, that defendant's facially
race-neutral explanation had not been equally applied to all
venirepersons, the trial court implicitly concluded that it was
pretextual and disallowed the strike.
As a threshold issue, defendant argues that the trial court
did not find a prima facie case of racial discrimination
indispensable to a Batson challenge. However, this procedural
defect was waived when defendant explained his strikes without
first presenting that issue before the court.
Defendant next complains that the trial court erroneously
concluded that defendant's "reasons for his strikes were not
sufficient." However, the record clearly discloses that defendant
did not employ his rationale for the Dyer strike to all
venirepersons. If the reason asserted for a strike is not
consistently applied to all members of a venire, it is not an
acceptable race-neutral explanation. Broady v. Commonwealth, 16
Va. App. 281, 285, 429 S.E.2d 468, 471 (1993).
Thus, the evidence provided ample support to the decision of
the trial court, and, accordingly, we affirm the convictions. 2
Affirmed.
2
For the first time on appeal, defendant also contends that
Batson principles do not apply to a "minority defendant's strikes
of majority jurors." However, an "issue . . . not presented to
the trial court" will not be considered "for the first time on
appeal." Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991); Rule 5A:18.
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