‘Batson’ challenge properly rejected in murder case

Where counsel made a Batson challenge after the Commonwealth used a peremptory strike to excuse an African-American juror from defendant Bethea’s retrial on a first-degree murder charge, the lower courts correctly determined the strike was not racially motivated. Defendant’s conviction is affirmed.

‘Crucial concession’

The prosecutor gave a race-neutral reason for exercising the challenge: the juror appeared emotional and did not raise her hand when the prosecutor asked the jury during voir dire to raise their hands to indicate their promise to consider all of the evidence.

Post-trial, defense counsel argued that prosecutor was mistaken “about the question that she had asked and to which the juror had not responded[.]” But counsel conceded that was not the basis for his Batson motion at trial.

“That is a crucial concession. If Bethea had made a specific and contemporaneous objection to the prosecutor’s mistake, the trial court could have asked the court reporter to read back the real-time transcription to determine whether, if at all, the reporter had recorded the relevant non-verbal hand gestures and to clarify which, if any, of the questions linked up with the prosecutor’s recollection of the juror’s failure to raise her hand.

“The trial court also could have called the juror out for additional voir dire questioning to determine whether she had understood the previous questions and had accurately communicated her responses. Any of these actions by the trial court — if it had known that they were necessary — could have completely defeated or, for that matter, conclusively proved, Bethea’s Batson challenge.

“Moreover, if the prosecutor had been convinced during this process that her recollection was wrong, she might have simply withdrawn the peremptory strike altogether. None of these actions were considered or taken, however, because Bethea’s counsel never contemporaneously objected to the prosecutor’s peremptory strike on the ground that the prosecutor had mistakenly recollected voir dire.”

Procedural default

“Procedural-default principles require that the argument asserted on appeal be the same as the contemporaneous argument at trial. … Virginia’s procedural-default principles apply to Batson challenges in the same way that they apply to other trial objections. …

“In this case, at the time of the Batson challenge, the prosecutor recalled a specific voir dire question (‘if everyone would promise to consider all of the evidence’) producing a specific response (a non-verbal ‘no’) from a noticeably emotional juror. …

“Bethea’s counsel argued that this explanation was pretextual by claiming that ‘I don’t think that amounts to anything, Your Honor. I mean, I was watching her. I didn’t see her getting particularly emotional during the voir dire. I was scanning the jury for people to raise their hands. I don’t know what that amounts to.’ …

“Hearing just this response, it would not have been clear to the trial court that it should have sequestered this juror for further questioning. Accepting the prosecutor’s recollection as true — a reasonable assumption absent a contest over its accuracy — there would be little reason for the trial court to seat a juror who would not ‘promise to consider all of the evidence[.]’ …

“But the opposite would be true if Bethea’s counsel had specifically asserted that the prosecutor’s explanation was pretextual because she had not asked that question and because the juror had not responded to that unasked question with a non-verbal ‘no.’ If the trial court had heard this assertion, it is likely that the court would have engaged the Batson challenge differently.”

Affirmed.

Bethea v. Commonwealth. Record No. 180527 (Kelsey; Powell, joined by Mims, dissenting) Aug. 28, 2019 (Court of Appeals). Peter Owen Francescon, John Andrew Taylor for Appellant. Katherine Quilan Adelfio, Mark Rankin Herring for the Commonwealth. VLW 019-6-068, 38 pp.