*1 Richmond FREDERICK BUCK GEORGE VIRGINIA COMMONWEALTH OF No. 0593-90-2 Decided June
Counsel Morchower, John W. Luxton G. Luxton & (Anthony Spencer; brief), on Whaley, respondent-appellant. Martin,
Kathleen B. Assistant General Sue Attorney (Mary Terry, General, brief), on Attorney for petitioner-appellee. EN BANC
UPON REHEARING Opinion from a Buck
BAKER, J.
(appellant) appealed
Frederick
George
*2
(trial court) that
County
Court of Chesterfield
of the Circuit
judgment
intent to dis
of cocaine with
for
his conviction
possession
approved
re
considered this appeal
that first
A
majority
panel
tribute.
trial court for such
the case to the
and remanded
the judgment
versed
advised. See Buck
was
as the Commonwealth
further action
We
(1992).
granted
In this appeal, issue; therefore, the facts relevant to forth only we set is not an tion two exercising per- explanation the issue whether entire neutral. The racially portion was strikes of black jurors emptory is as follows: of the jurors to selection relating of the transcript Honor, for one the bench we approach RAND: Your MS. minute? COURT: Yes.
THE held out of conference is bench following NOTE: hearing jury:
BENCH CONFERENCE: the first strike challenge RAND: I want to
MS. clarify to ask for the Commonwealth took and Commonwealth Ms. Bowen. striking the reason for reasons, Judge. a number of were MR. VON SCHUCH:There Compared relative youth juror. reason was the The first are in their rest, of the rest of them and most she’s only children was that she had no thing The second thirties and forties. to the sheet.1 Most of the other do children. have according that, I conscious of because this case where the parents children, children, older be more particularly might susceptible to the Commonwealth’s of view in terms of this point being distribution case. drug circumstances,
Under those I felt that she was appropriate strike.
I would to the Court that out there were a total of three point two, blacks on the The Commonwealth struck jury. leaving on the Ms. Blizzard. I
MS. RAND: didn’t realize there was a third one.
What was the on the other one?
THE COURT: The second strike?
MR. VON SCHUCH: Mr. Wright?
THE COURT: Yes. Yes, sir,
MR. VON SCHUCH: because he came into the court with the other jurors to be dressed for appeared the occa- sion. He came in State wearing Virginia Varsity jacket; has a address. Petersburg in that Living part county, Petersburg has a significant drug Based on his problem. and the appearance location, address I that he would be thought tolerant of this type of offense.
THE COURT: Ms. Rand? MS. RAND: concern My was that the are not represen- tative of the There were population. three blacks on the panel. one, We now have only I would think more rea- significant sons than what given should be shown. Well,
THE COURT: tactics, the reasons are reasons for trial and the Commonwealth that race represents was not a considera- tion in of the reasons that any he stated and that come across to me.
jurors “do not have children.” 18, 1990, the record was corrected to read as shown here. original transcript reported This was that Ms. Bowen “had children” erroneously reported and at a and that most of the other hearing held on October of trial tactics. There is basis are reasons legitimate
They
to strike someone for reasons
those, and counsel’s decision
of that I think
view of the
and because
testimony,
affect their
reasonably
strikes were
I find that the Commonwealth’s
to the Court’s ruling.
I note your exception
made and
issue in this case is controlled
selection
We find that
Commonwealth, 14 Va. App.
v.
decision
our en banc
Winfield
holding
which affirmed
(1992),
panel
Affirmed. X, Willis, X, con Coleman, X, Moon, C.J.,* Fitzpatrick, Bray, curred.
Barrow, X, dissenting. Commonwealth, 14 Va. established
The rule
does not address the issue
banc),
(en
effective
555 of this evidence exists. The prosecutor, view one Only permissible the truth of the another. Assuming prose- while one did saying thing, whether, law, as a matter of his we must decide cutor’s explanation, actions, rebuts the show- prima his by contradicted explanation, facie 959 F.2d Bishop, intent. See United States v. of discriminatory ing 820, 1992). Cir. (9th 827 A of not addressed careful reading This question Winfield. decisions reveals in both the en banc and the panel
majority opinions issue; to this the dissents address it. See no reference absolutely only 1049, 468; 421 v. at S.E.2d at App. Va. 446, Commonwealth, (1991). 12 Va. S.E.2d 398 App. dissent, with the cannot define the rule of A in disagreeing majority, it decision. However be to infer from a dis- tempting may a majority not in a such inferential majority sent that which is expressed opinion, cannot be binding. reasoning precedentially not Stare decisis does foreclose review of an issue addressed on its merits in a decision. Corrections v. Virginia Department prior of 254, 262, 439, 316 S.E.2d 227 Va. order to Crowley, (1984). provide stability, uniformity, predictability legal system, “ stare decisis assures the of . . . founded application ‘principles ” law rather than in the individuals.’ v. proclivities Payne of Tennessee, 808, J., 853 (1991) (Marshall, dissenting) (quot- 254, v. de- Vasquez Hillery, (1986)). Only majority ing rule cision elevates a the mere an legal beyond proclivities Kimura, Note, A individual. See Ken Model the Inter- Legitimacy 1593, Decisions, 77 Cornell L. Rev. 1596 n.15 pretation Plurality A dissent the dissenter’s view a (1992). represents only majority decision. of this issue
Consideration
dissenting opinions Winfield
best,
the reasonable
delib
permits,
majority
inference
chose not to address the issue. A later decision of this court
erately
this conclusion. See
v.
supports
Broady
has, however,
by panels
intent
do not overcome the
prima
showing
discriminatory
facie
when
to members of one race and not to another. Id. at
applied
(8th
also United States v. 873 F.2d 1139-40 Cir. (8th 1989); Commonwealth, 176, 186-87, 1, 6-7, v. Jackson Va. 380 S.E.2d App. banc, en S.E.2d 343 A (1989). prosecutor’s aff'd disclaimer of racial discrimination is not of whether the dispositive were, of discrimination has been overcome. If it prima showing facie denial of a would suffice. See prosecutor’s discriminatory purpose Batson v. Alexander v. Kentucky, (1986) (quoting Louisiana, 625, 632 Even if 405 U.S. (1972)). prosecutor’s explana truthful, if tion is the criterion used eliminates mem from bers of the defendant’s race but not members of another jury, criterion, the race who meet the same fails to rebut of discrimination. in this Consequently, prose presumption actions, not, cutor’s contradicted his does a matter as explanation, law, overcome the intent. showing discriminatory reason, For I reverse the defendant’s conviction and re this would therefore, trial;2 I mand the matter for a new dissent.
Benton, J., dissenting.
“More than a
Strauder v. West
100 U.S.
century ago
Virginia,
[in
States
decided that the State
303 (1879)],
Supreme
[United
Court]
denies a
defendant
of the laws when it
him
equal protection
puts
black
on trial before a
from which members of his race have been pur
v.
“It
excluded.” Batson
476 U.S.
posefully
Kentucky,
(1986).
is worth
after
close of the
remembering
years
[Civil]
‘[128]
War . . and
.
[113]
years
after
Strauder,
racial and other
forms
of dis
life, in the
crimination still remain a fact of
administration of
as
justice
”
J.,
in our
as a whole.’
Id. at 106-107
society
(Marshall,
concurring)
Mitchell,
Rose v.
558-59
Oblivious to
(1979)).
and to current
this Court
reality,
history
1049,
The record in this case established that the did not ask a prosecutor chal- his single question jurors prior exercising peremptory to strike two of the three African-Americans on the lenges jury panel. Indeed, the stated that is satisfied Commonwealth prosecutor “[t]he with the and then to remove the African-Americans proceeded panel,” conduct, from the account of his the stated jury. giving prosecutor Bowen, African-American, he struck Constance an because of her rel- ative and because she had no children. Bowen was youth twenty-eight strike, however, The did not a years age. prosecutor twenty-three Likewise, old white female with no children. the year juror prosecutor did not strike a childless white male The record juror. proved stated criteria were not the reasons for the strikes and that the racial discrimination in engaged prosecutor unambiguous apply- the criteria that he he asserted used. ing condemned, As behavior has been overtly bigoted universally ‘
exclusions continue to occur acts more subtle. through today ‘Perhaps [, discrimination takes a form more subtle than before it is [racial] but] Mitchell, 443 U.S. less real Rose v. not or pernicious.” Still, well as (1979). simple- the Constitution bars as “sophisticated Wilson, 268, Lane v. minded modes of discrimination.” him concerning the trial had before the data (1939). judge Although made no trial further remaining jurors, inquiry white Likewise, a did not state even in per- trial judge prosecutor. ’ ‘be trial tactic that he found to ‘legitimate’ fashion the functory salient The does disclose what majority furthered the strike. lead it to conclude that trial judge’s finding supported facts record. some basis (1) Richard T. because Wright stated struck prosecutor University a State wearing Virginia varsity jacket
Wright on a dress in to serve believed was not which appropriate prosecutor which, address, (2) a mailing had Wright Petersburg jury, said, “a signif- lived near with city suggested Wright thus, and, narcotic use. be tolerant of icant would drug problem” However, the no he considered why provided to wear jacket bearing it for a objectionable prospective juror African-American University, State logo Virginia predominately *7 Council in Chesterfield See Norris v. State County. located university 1368, Educ., (E.D. Va.), sub nom. 327 F. 1370 Higher Supp. aff’d of Norris, 404 & College Mary William Board Visitors of of of a an choice of cloth- (1971). is not unusual Obviously, jacket U.S. 907 a in December. The rational explanation for to wear ing juror Wright’s per- on record is that to objected apparent conceived, op- that was university historically ceived affiliation with erated, See and State law for African-Americans. by maintained Norris, 327 F. at 1370. Supp. demonstrates residence also objection Wright’s
The prosecutor’s First, was assertion that Wright discrimination. prosecutor’s in the area Chesterfield as a because he lived of juror objectionable of facial validi- City Petersburg that was near the lacks County simply concerning The statement record ty. prosecutor’s proved shows was incorrect. The list of members jury panel address Wright’s address, mailing not a Petersburg has a Richmond Wright mailing address, Had the trial but looked as stated by prosecutor. stated reason the list he would have been aware that prosecutor’s invalid. address, Moreover, Petersburg mailing even if had a Wright for nor non-racial neither rational provided
559 County in southern Chesterfield lives that a who his assertion person toler office is Petersburg post through mail delivery receives County, lived in Chesterfield All of the use. ant of narcotic suggestion The held. the trial was where jurisdiction that Wright’s he believed because Wright that he struck the trial judge use of narcotic be tolerant” “would address indicated Wright mailing because made that assumption The prosecutor reeks of race prejudice. the area of the Wright delivery designation placed Wright’s postal African-American population.3 that has a large near County city is replete in the United States race discrimination The history the badge of color with used to mark people of devices with examples discrimi- which been the vehicle long have of slavery. Stereotypes nation is conveyed. were,
Residence,
As
badge.
study
acts as an ethnic
as it
often
centers,
showed, residence,
in urban
especially
after
has
study
-
accurate, in-
of race more
most accurate
can be the
predictor
See,
Kain,
deed,
Race and
e.g.,
than social class.
Influence
in Housing
Housing Policy,
Segregation
Income on Racial
-
Racial
(1986); Note
and Federal
Policy
Desegregation
Patterns
Housing
Communities: Societal
in Residential
Diversity
Ordinance”,
S.
Inclusionary
a “Racial
and a Proposal for
re-
commentator
(1990). As one
Cal. L. Rev.
1167-69
marked,
remained
“[Ojne
has
caste system
legacy
[racial]
-
Rights
Comment
Individual
intact: the urban
largely
ghetto.”
Housing,
The Problem Fair
Realities:
Demographic
(1988).
N.W.L. Rev.
1992). The
(9th Cir.
F.2d
United States v.
Bishop,
from
the use
of African-Americans
juries
exclusion
purposeful
than overt
nor less
is neither unique
pernicious
residential stereotypes
“[Wjhere
as a surrogate
residence is utilized
forms of discrimination.
— as,
instance,
for insensitivity
a short hand
for racial
stereotypes
—
*8
of the
of
guarantees
equal
violence
its invocation runs afoul
The reason the given by prosecutor, in, would be (not near) but with a city “drug problem” lived near use, means both irrational and a convenient to narcotic is sympathetic that a irrational to suggest which to mask racial bias. It is simply by 1990 U.S. Census Population by Race, Dept. of Commerce, Census Bureau. is tolerant of narcotic use person because that is simply person “[l]iving that is near a with a part county” city “drug [a] problem.” the invocation of
Ultimately,
residence both reflected and con-
veyed
ingrained
Government
deeply
pernicious stereotypes.
acts based on such
are
prejudice
stereotypical thinking
pre-
of acts
the
cisely
type
prohibited by
clause
equal protection
the Constitution.
(citations omitted).
Bishop, “Where the . . . is an obvious mask prosecutor’s explanation for race-based has not met his burden challenge, under Batson.” Clark, (7th F.2d Splunge 1992). Cir. The record established that is Wright forty-six years has sixteen age, years education, and has two children eleven and twelve. Based on the ages asserted, incorrect, albeit prosecutor’s Bowen explanation striking (that childless), she was should young Wright logically have been a desirable member. jury
The and Bowen prosecutor’s assumption Wright would be tol- erant of use was no more than a drug for racial stereo- “surrogate F.2d at Bishop, 959 826. The trial said that the types.” judge prosecu- tor’s decision was “reasons that by affect prompted [those person’s] testimony.” view[s]
But the role of trial assessing mo- prosecutor’s tive only kicks in once a race-neutral justification has been of- Here, fered. ... was tainted justification by impermissible generalizations and their regarding environment. groups The trial determinations judge’s credibility therefore are not in We need not reach the issue question. whether sham; rather, was honest or merely we conclude that, sincere, even it was assuming government’s explanation ‘ is not sufficient to Batson because ‘a in- satisfy discriminatory tent is inherent in the prosecutor’s explanation.” Id. at 827.
The strikes used to exclude African-Americans from the were and, moreover, based on to be invalid premises proved upon premises to African-Americans but not to the white applied members of the tactic that panel. is obvious from the strike and the reason advanced condemned is one that Batson.
561
“|T]he
.
defendant’s
challenge[
not .
.
may
prosecutor
]
—
—
would
judgment
they
on the
or his intuitive
race
assumption
Batson, 476
of their shared race.”
to the defendant because
be partial
does not
clear in
command that the prosecutor
at 97. Batson is
its
U.S.
‘
mo-
that he had a
denying
discriminatory
meet his burden ‘merely by
individual selections.”
faith in
“affirming]
good
making
tive or
[his]
Louisiana,
625, 632
Alexander v.
405 U.S.
By dispositive accepting record, Court, as it did in has al- basis in fact or in the this of a to avoid the mandate of Batson use lowed F.2d at 826. This Court 959 “discriminatory proxy.” Bishop, reason will suffice to sends the that in message Virginia any again does African-Americans from so as long remove juries trial the record race as the reason and the judge blindly not admit on not the assertion that race was reason. That accepts contravenes the our socie- heterogeneous message principle “[i]n militate as well as constitutional considerations against ty policy . a court of law turn divisive . . that assumption justice upon of birth . . . .” Ristaino v. of skin the accident pigmentation [or] Ross, (1976). n.8
‘
in the Federal and State Constitutions
‘The
trial
guarantees
jury
reflect a
about the
in which law should be
way
profound judgment
Louisiana,
enforced and
administered.” Duncan v.
391 U.S.
justice
(1968).
When
and identifiable
is ex-
any large
segment
community
service,
cluded from
the effect is to remove from the
jury
jury
room
of human nature and varieties of human
qualities
experi-
ence,
It
of which is unknown and
unknowable.
range
perhaps
is not
to assume that the excluded
will consist-
necessary
group
do,
conclude,
vote as a class in order to
as we
that its exclu-
ently
on human events that may
sion
of a
perspective
deprives
case that
bemay
have unsuspected importance
any
presented.
(1972) (footnote omitted). “It
Peters v.
503-04
Kiff,
discrimination
would seem
self-evident
equally
appearance
it is the
court
is
since
procedure
especially reprehensible,
complete
—
antithesis of the court’s reason for
to insure
being
equality
treatment and evenhanded
State v.
522 So. 2d
Slappy,
justice.”
denied,
(Fla.)
(1988).
cert.
“Discrimination within the
“In view of the heterogeneous of our re- population public for our criminal and the spect justice system rule of law will be *10 if we ensure that no citizen strengthened from ser- jury disqualified Batson, vice because of his race.” 476 U.S. at This decision 99. not has Buck of a only to a fair trial but has also inflicted deprived right harm the excluded Bowen and upon jurors, Wright.
Racial in discrimination selection of not jurors harms accused whose life or are liberty summoned to they try. Compe- tence to serve as on an juror ultimately assessment of depends individual to qualifications ability consider evi- impartially dence at a trial. A presented race “is unrelated person’s to simply Strauder, therefore, his fitness as a As juror.” as long ago Court that recognized in denying person participation jury race, service on account of his the State dis- unconstitutionally criminated excluded against juror.
Batson, (citations at omitted). 476 U.S. The exclusion of Bowen them, from the Wright “is a brand affixed practically upon law, Strauder, assertion of their 100 U.S. at inferiority.” 308.
Moreover, the Court has Supreme recognized great societal harm that results from this practice.
The harm from selection discriminatory jury extends beyond inflicted on the defendant and the excluded to touch the en- juror tire community. Selection procedures exclude purposefully black from persons undermine confidence juries in public fairness of our system Discrimination justice. within judi- cial system is most it because is “a stimulant to that pernicious race which is an prejudice citi- impediment securing [black which the law aims equal justice to secure to all zens] others.”
Batson, Strauder, 308). 87-88 at
Because the underlying offered for the two explanations striking and, African-American find no legitimate in the record support facts, erred in indeed, the trial to the are contrary reasons I For the based. racially were not explanations here, dissent to stated in my and for the reasons stated have 469-76, 1050-62, I would reverse at 421 S.E.2d 14 Va. App. trial. remand for a new conviction and
I dissent. J.,
Koontz, dissenting. this conclusion that appeal from the majority’s dissent I respectfully in our en banc decision is controlled by (1992). On the facts present S.E.2d in view, inherent the prosecu- intent is discriminatory my African-American jurors the two striking tor’s explanations such, the prima do not rebut these As explanations question. facie these jurors. intent discriminatory striking showing an African- basis to strike discern no valid non-racial I can children old and has no is twenty-eight years American woman who years of another race who is twenty-three a woman striking while *11 non-racial I can discern no valid no children. Similarly, old and has State Var- a wearing Virginia to an African-American juror objection have the Although prosecutor to a court proceeding. sity jacket for these jurors, provided a non-racial striking had explanation Moreover, him. Under such trial none from required none. the circumstances, nor the trial judge’s neither the sincerity of our concern in this appeal. determination are matters credibility short, this by not address the issue presented appeal. does in the selection jury pro- condemnation of racial discrimination
The in or our of this Court this not a matter in by judges cess is dispute in absoluteness of that con- are in total agreement cases. We prior dissent- from the scholarly demnation. The evident struggle, separate Elder, not, Benton, is Barrow and written by Judges ing opinions Rather, be, we of that condemnation. need not to ensure the viability of the find an balance between protection struggle appropriate segment of members of an identifiable constitutional rights and a standard selection jury process our heterogeneous society of the not sacrifice the stability judicial review that does appellate fostered, deference to is in large part, by according great system the trial determinations made credibility by of fact and findings court.
I make no here to articulate how that balance is to be attempt achieved in case. I write every separately only that a emphasize to Batson v. re- challenge pursuant Kentucky, 79 (1986), the trial court by review quires meaningful explanations given when members of the accused’s race are by prosecutor protected excluded from service in a case. Where the record does jury particular the conclusion that a review of the support meaningful prosecu- court, tor’s was conducted the trial prima facie of racial discrimination in the selection man- showing process minimum, a reversal and for new trial. At a dates remand a meaning- ful review explanation given for requires a member of one race to a objectionable equally applied member of another race.
In the the record does not a conclusion that present support the trial court conducted a review of the Batson meaningful accused’s conyiction I claim. would reverse the and remand for a Accordingly, new trial. X,
Elder,
dissenting.
The
finds
Court’s
Hernandez
majority
Supreme
holding
York,
v.New
I. in Batson v. holding Kentucky, (1986), requires claims that a has used three-step process evaluating per- *12 in a manner violative of the Protection emptory challenges Equal Clause:
First, the must make a facie defendant prima showing has exercised on the basis of prosecutor peremptory challenges Second, made, race. if the has been the burden requisite showing shifts to the to articulate a race-neutral for prosecutor
565 the trial court must deter- striking jurors Finally, question. mine the defendant has carried his burden of proving whether discrimination. purposeful
Hernandez,
It
clear
omitted).
ited of education. Va. S.E.2d Whether the and education correlation prosecutor’s employment not the was accurate or a basis for legitimate selecting jury issue. Clearly, goal a well-educated obtaining permissible one that is all of the race-neutral. facially stated strikes were race- facially reasons making peremptory *13 In defense counsel did not make any
neutral Winfield, representations. to rebut the articu- or offer evidence any prosecutor’s representations The trial found the representations. lated race-neutral facially and under the facts credible explanation prosecutor’s to overturn that finding no basis which legal upon we found on appeal. the decisive challenge inquiry, question
In the typical peremptory for a peremp- will be whether counsel’s race-neutral much be believed. There will seldom be should tory challenge issue, and the best evidence often will on that bearing evidence ... challenge. who exercises attorney be the demeanor of state of mind based on demeanor of the prosecutor’s [E]valuation lies within a trial “peculiarly judge’s province.” and credibility Witt, v. Hernandez, at 365 (quoting Wainwright 412, 428 (1985)). 429 S.E.2d v. Broady to the fact the trial court’s attention the defense called attorney
(1993), strikes race-neutral reason for peremptory that the articulated facially There, we said to African-Americans. exclusively was being applied rea- race-neutral facially the Commonwealth has asserted a that “after as- of one race and the reason has struck jurors son to strike but members of the veni- to other applicable serted for the strike equally race- race, satisfactory asserted is not a the reason re of a different 285, 429 strikes.” Id. at for the Commonwealth’s neutral explanation non- demonstrated that facially it is further S.E.2d at 471. “[W]hen whites, the but not to blacks reasons are applied systematically the strikes has not overcome presumption Commonwealth 931 F.2d Reynolds Benefield, Id. (citing were motivated.” racially Cir. 1991)). 506 (8th Notice in Buck and Judicial Neutrality
B. Race fail- that, the defense attorney’s based on I with the majority agree for the strike the record basis any pretextual establish on ure to clearly woman, the trial judge’s of the African-American evi- credible race-neutral is supported of that venireman was strike for striking reasons However, the articulated dence. should be reviewed by other issues that male raise African-American as fol- his reason for that strike explained this Court. The prosecutor lows:
Yes, sir,
the other came into
court with
because he
He came in wearing
for the occasion.
not to be dressed
appeared
Liv
address.4
Petersburg
has a
Varsity jacket;
State
Virginia
has a significant drug
county, Petersburg
in that
part
ing
location, 1
the address
Based on his
appearance
problem.
offense.
tolerant of this kind of
he would be
thought
refers to the
State
*14
jacket clearly
mention
the Virginia
varsity
The
is
to a
whose student body predom
connection
university
venireman’s
Higher
African-American.
Council
See Norris v. State
inately
of
1368,
Educ.,
(E.D.
sub
Board
Va.),
1370
nom.
327 F. Supp.
of
aff’d
Norris,
4 listing actually The venire shows address to be Richmond. between
notice of the fact that the distance
Louisa Court House and
short).
is
and trial courts rou
County
relatively
Appellate
Goochland
of census
to determine the racial
take
notice
tinely
judicial
figures
Univ.,
See
v. Alabama State
Craig
of various
make-up
populations.
(M.D.
1978),
451 F.
1208-09
Ala.
The trial found tactics,” consideration,” “race was not a and that reasons for trial However, the Court of were made.” as “reasonably strikes for the Ninth Circuit United States emphasized Bishop, Appeals motive assessing the role of trial judge *15 has been offered. in once a race-neutral justification kicks Here, im- was tainted justification by as we have explained, and their en- regarding groups permissible generalizations therefore determinations credibility The trial judge’s vironment. need not reach the issue whether pros- are not in We question. rather, sham; we was honest or a ecutor’s explanation merely sincere, that, it was the government’s conclude even assuming to Batson because “a dis- is not sufficient satisfy explanation in the intent is inherent criminatory prosecutor’s explanation.” Hernandez, 1992) F.2d Cir. (9th in reasoning Bishop The Ninth Circuit’s 360) omitted). citations (other this case. as applied persuasive Hernandez C. The Majority;s Misapplication of to be due misplaced reliance on Hernandez appears The majority’s Hernandez, between the two cases. In to the distinctions significant these a race-neutral basis for peremp- ... offered prosecutor [t]he rested the challenges strikes. As tory explained by prosecutor, . . . bilingual jurors. Latinos or to exclude on the intention neither divided for these challenges basis articulated The prosecutor’s conduct voir during classes: those whose into two jurors potential in accepting difficulty him have they might dire would persuade testimony rendition of Spanish-language the translator’s for doubt. who no such reason gave those potential Hernandez, the gave In Hernandez, prosecutor U.S. at 353. to have been a race what why appeared as valid facially explanation — — in its was race-neutral language based reason or ethnic was offered such explanation No application. — contrast, in this reasons case stated this Court. case before State University with Virginia was affiliated that the venireman — no nexus to this reasons with are generic address Petersburg had that, virtue of had shown If the prosecutor trial. specific State with Virginia address and affiliation juror’s prospective or bias about this knowledge particular he had some University, dealer whose drug primary door to a known i.e., he lived next a race-based what is facially State University, market was Virginia basis for making as a race-neutral become acceptable reason would in Hernandez. This is what occurred exactly strike. the peremptory Hernandez, it in as did Furthermore, suggested Court Supreme in deciding rule to Batson, employ is no all-encompassing that there its facts. be on cases, judged particular each case must these but that said: Court challenge reason for a peremptory that a race-neutral In holding race, more diffi- we do not resolve the than means a reason other of race the concept the breadth with which question cult We would face for equal protection purposes. be defined should his peremptory if the had justified case different quite he did not want Spanish- with challenges be, ethnic groups for certain It well speaking jurors. like communities, language, a particular that proficiency
some for race under an color, surrogate be treated as a skin should analysis. equal protection
Hernandez, at 371. racial stereotypes for surrogate is utilized as residence [Wjhere
— instance, to violence as, insensitivity for a shorthand [in — the runs afoul of its invocation this case drug-related crimes] The difference between of guarantees equal protection. hand, the one and the case on present [and Hernandez Winfield] — other, valid on the is the difference between reason whether — is, short, and a racial ... It the difference or stereotype. and between what the Constitution what it does not. permits F.2d at 826. Bishop, the
In this the made no to connect attempt prospec- prosecutor to the facts of the case. The strike was tive residence juror’s simply man affiliated with an to an African-American who was applied and whose address was allegedly African-American university African-American to a Because these predominantly city. proximity the with facts and the associated alleged “drug problem” Un- the trial found strike City Petersburg, judge permissible. “African-Americans, their crime and vio- fortunately, neighborhoods, — lence all become rise to tenacious amalgamated, giving stereotypes innocent and unintentional but nonetheless. They perhaps, stereotypes in the reit- are and must remain unwelcome courtroom.” Id. 828.1 erate that does not mean that an African-American associ- my position African-American an and in a ated with institution living predomi- African-American can never be nantly neighborhood peremptorily Quite struck in the trial of an African-American. it means that simply, Hernandez, under and there in order to such strike Batson justify be a those in the must relevance of facts showing par- specific ticular tried. case being
II. In between summary, Hernandez distinctions Winfield are clear. In case based his strikes present he on what to be the educational level of perceived potential and made that the race the individuals. decision knew before Defense counsel in made no that the rea- establish attempt sons were a for a The trial given racially motivated strike. pretext credible, found the nothing prosecutor’s explanation record indicated that this incredible. Con- inherently this Court affirmed the trial court in accordance with the sequently, standard of review and the of Batson and long-established holdings Hernandez, Court the trial Supreme judge’s upheld Hernandez. credibility finding regarding strikes on what peremptory appeared reason, to have been a race-based because the his prosecutor supported *17 es- voir dire. These during clearly statements by questions questions that, (ethnic) his have had a racial tablished although approach his rationale for strikes to Latinos and appearance, applied equally us, contrast, In the case before non-Latinos. prosecutor’s expla- African-American was that he nation for male venireman striking an a affiliation with wearing jacket indicating predominantly African-American had an address in close university allegedly Thus, no race- African-American predominantly city. proximity Conse- neutral reason was advanced for strike of this venireman. this case must be reversed remanded. quently, in decision this case in no conflicts with the My way general princi- i.e., in enunciated that deference must be ple given trial stated judge’s finding regarding credibility prosecutor’s race-neutral reason for We have never said striking potential juror. defer that we will to the trial without judge’s findings meaningful ap- review. we should have drawn the distinc- pellate Perhaps Winfield However, tion I have made in this the fact that view of opinion. defense in that case did not facial- attorney challenge race-neutral reasons and that the trial chose to believe the ly Nevertheless, we did not find it to do so. we prosecutor, necessary have since refined and explained proper application Winfield Carter and Broady, both of which taken in this support approach dissent. reasons,
For the I would reverse and remand for a foregoing new trial if the Commonwealth be so advised.