COMMONWEALTH OF VIRGINIA
JULY 20, 1999
Record No. 1251-98-4
BOBBY DEAN RITCHIE
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Present: Judges Benton, Willis and Senior Judge
Argued at Richmond, Virginia
MEMORANDUM OPINION* BY JUDGE JERE M.
H. WILLIS, JR.
Mark Bodner for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his jury trial convictions of
possession of a controlled drug with the intent to distribute and
distribution of a controlled drug, in violation of Code
? 18.2-248, Bobby Dean Ritchie contends that the trial
court erred in sustaining the Commonwealth’s peremptory strike of
the only African-American venireman without receiving a
particularized and racially neutral explanation. We find no error
and affirm the judgment of the trial court.
Ritchie is African-American. The Commonwealth
exercised one of its peremptory strikes to remove from the jury
Tricia Jefferson, the only African-American member of the venire.
Defense counsel objected to the strike, arguing that a
prospective juror may not be removed by peremptory strike solely
on the basis of race. See Batson v. Kentucky, 476
U.S. 79, 89 (1976). The Commonwealth’s attorney explained that he
struck Jefferson because she was not a landowner and that he
would have struck a white venireman who also was not a landowner,
had defense counsel not previously struck him.
Where a race-based strike is alleged, [a]
defendant must first establish a prima facie
showing that the peremptory strike was made on the basis of race.
At that point, the burden shifts to the prosecution to produce
explanations for striking the juror which are race-neutral. Even
if race-neutral, the reasons may be challenged by the defendant
as pretextual. Finally, the trial court must decide whether the
defendant has carried his burden of proving purposeful
discrimination by the prosecutor in selecting the jury panel. On
appeal, the trial court’s findings will be reversed only if they
are clearly erroneous.
Buck v. Commonwealth, 247 Va. 449,
450-51, 443 S.E.2d 414, 415 (1994) (citations omitted).
The Commonwealth’s attorney’s explanation that
he struck Jefferson because she was not a landowner in the county
is facially race-neutral. No evidence suggested that this
explanation was a pretext for removing her because of race. The
Commonwealth’s attorney further explained that he wanted to
strike a white male non-landowner, and would have, had the
defense not struck him first. "’Unless a discriminatory
intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.’" Purkett v. Elem,
514 U.S. 765, 768 (1995) (citation omitted). The trial court’s
finding that the Commonwealth’s race-neutral explanation was bona
fide is entitled to great deference, as the trial court is
in the unique position "to observe and evaluate ‘the
prosecutor’s state of mind based on demeanor and credibility’ in
the context of the case then before the court." Robertson
v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713, 715
(1994) (citation omitted).
We affirm the judgment of the trial court.
Benton, J., dissenting.
On voir dire, Jefferson was one
of several venire persons who indicated that a family member had
been the victim of a crime. In response to defense counsel’s
questioning, Jefferson said "[her] mom had her purse stolen
from her office . . . three or four years ago." The parties
asked no other questions of her. The prosecutor used his
peremptory challenge to remove Jefferson, the only
African-American person on the venire, and later justified
removing her by stating she was not "a landowner" in
the county. When asked by the judge, "[w]hat does that have
to do with it?," the prosecutor suggested that Jefferson’s
non-landowner status concerned her "interest in what goes on
in Fairfax County."
Because the prosecutor’s exercise of peremptory
challenges is subject to the command of the Fourteenth Amendment,
the Supreme Court has clearly stated that "[t]he prosecutor
. . . [, when called upon to explain this challenge,] must
articulate a neutral explanation related to the particular
case to be tried." Batson v. Kentucky, 476 U.S.
79, 98 (1986) (footnote omitted) (emphasis added). See also
Jackson v. Commonwealth, 8 Va. App. 176, 185, 380 S.E.2d
1, 3, aff’d on reh’g en banc, 9 Va. App. 169, 384 S.E.2d
343 (1989). The reason stated by the prosecutor for removing
Jefferson had no bearing on the case to be tried, but it has
profound implications for systemically excluding Jefferson and
other racial minorities.
When any large and identifiable segment of the
community is excluded from jury service, the effect is to remove
from the jury room qualities of human nature and varieties of
human experience, the range of which is unknown and perhaps
unknowable. It is not necessary to assume that the excluded group
will consistently vote as a class in order to conclude, as we do,
that its exclusion deprives the jury of a perspective on human
events that may have unsuspected importance in any case that may
Peters v. Kiff, 407 U.S. 493, 503-04
(1972) (footnote omitted).
"The Equal Protection Clause guarantees
the defendant that the State will not exclude members of his race
from the jury venire on account of race, or on the false
assumption that members of his race as a group are not qualified
to serve as jurors." Batson, 476 U.S. at 86 (citation
omitted) (footnote omitted). By accepting the reason stated by
the prosecutor in this case, "[t]his Court again sends the
message that in Virginia any reason will suffice to remove
African-Americans from juries so long as the prosecutor does not
admit on the record race as the reason and the trial judge
blindly accepts the prosecutor’s assertion that race was not the
reason." Buck v. Commonwealth, 16 Va. App. 551, 561,
432 S.E.2d 180, 186 (1993) (en banc) (Benton, J.,
dissenting), aff’d, 247 Va. 449, 443 S.E.2d 414 (1994). I
* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.