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Stevens v. Commonwealth

Court of Appeals of Virginia

May 7, 2019



          J. Barry McCracken, Assistant Public Defender, for appellant.

          Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judge Alston and Senior Judge Frank Argued at Norfolk, Virginia



         John Paris Stevens ("appellant") appeals his convictions for robbery, burglary of a bank while armed, and use of a firearm in the commission of a felony, asserting that the Circuit Court of the City of Norfolk ("trial court") erred by sustaining the Commonwealth's "reverse-Batson challenge" (hereinafter "McCollum challenge") to one of his peremptory strikes. For the reasons stated below, we disagree and affirm his convictions.


         On May 29, 2015, appellant entered a bank in the City of Norfolk, and after threatening a teller with a firearm, demanded cash from the teller. The teller complied, and appellant left the bank with a substantial amount of money. Appellant was indicted by a grand jury a few months later, and his case was set for a jury trial.

         The initial venire panel of prospective jurors was comprised of 30 individuals. After the trial court granted several strikes for cause, 23 individuals remained.[2] The parties then exercised their peremptory strikes. After the Commonwealth struck multiple African-American jurors, appellant challenged the strikes pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) (hereinafter "Batson challenge"). The trial court overruled appellant's Batson challenges, stating that the Commonwealth had "articulated [] racially neutral reason[s] in terms of trial strategy."[3]

         Defense counsel had used all five peremptory strikes on Caucasian jurors. The Commonwealth objected to these strikes through a McCollum challenge, stating that "they're all white individuals, some of whom said nothing when they were questioned, or virtually nothing." Defense counsel immediately tendered a race-neutral explanation for each strike. At issue in this appeal is counsel's explanation regarding Juror #1.[4] Regarding Juror #1, defense counsel stated

[w]e got nothing. We got no response from her whatsoever. We saw her sitting. She seemed to be paying attention, looking, listening to what everyone was saying and those kind of things. But mostly we struck number 1 because we couldn't get a read on her one way or the other. In terms of the scientific evidence question, she just did not respond. So we had some things we liked about some other folks, but we didn't know anything about her, so we struck her because of her lack of a response.

         The Commonwealth responded that multiple prospective African-American jurors had exhibited the same behavior, and asserted that defense counsel's race-neutral explanation for the strike was pretextual.

         Defense counsel further explained that he struck Juror #1 because

[t]he demeanor issue was a lack of any kind of response to any of the questions that we asked. I didn't see any facial expressions or anything of that nature. I got to say she seemed to be paying attention, but I just couldn't tell, because I couldn't get a read on her. She didn't respond one way or another to any of the questions that we were asking. When other folks responded, her demeanor was unreadable. Couldn't tell one way or the other if she was engaged or not engaged. She seemed to be paying attention because her eyes were open. She was awake. She was moving her head around and looking at things, but judge, I just could not tell if she was really engaged in the process or not because of a lack of response.

         After considering the arguments, the trial court ruled that defense counsel's strike of Juror #1 was improper and restored Juror #1 to the venire panel. The trial court reasoned "that none of the questions were directed to her specifically" and that "she did not give nonverbal queues [sic] by her demeanor."[5]

         A trial on appellant's charges was held and ultimately the jury convicted appellant, and this appeal followed.

         Before we turn to an analysis of appellant's arguments, a thorough review of Batson's historical underpinnings and progeny, as well as its importance in safeguarding the fairness of the jury trial, is warranted.

         A. The Origins and Fundamental Aspects of the Jury Trial

         No comprehensive discussion of the circumstances relating to the underpinnings of a fair criminal jury trial can begin without understanding its foundations. The right to a trial by jury in a criminal proceeding finds its roots in early English common law. See Swain v. Alabama, 380 U.S. 202, 212-14 (1965); see also 4 William Blackstone, Commentaries, *349 (recognizing that "[t]he right of trial by jury . . . is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter"). As with many other rights and provisions derived from English customs, the Framers of the Constitution placed paramount importance on the individual's right to a trial by a jury of his peers. See Crawford v. Washington, 541 U.S. 36, 67 (2004).[6]

         The Sixth Amendment provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime" occurred. U.S. Const. amend. VI. Attorneys engage in a process called voir dire, essentially translated as "to speak the truth," wherein potential jurors are questioned about their ability to be fair and impartial. In Virginia, Code § 19.2-262 provides that a jury in a felony trial shall be comprised of 12 people, selected from a venire panel of "not less than 20."

         During voir dire, the parties and the trial judge both question the venire of prospective jurors, and the parties strike prospective jurors "for cause" if "the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1984); see also Code § 8.01-358; Rule 3A:14. Then, the parties exercise their peremptory strikes to remove individuals from the venire that they believe will be biased toward or less sympathetic to their case. Peremptory strikes also find their origins in English law. See 4 Blackstone, supra, at *336, *348 (quoting a 1531 statute which stated that "no person, arraigned for felony, can be admitted to make any more than twenty peremptory challenges"). A peremptory strike is utilized "not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise." Swain, 380 U.S. at 219.

         Voir dire undeniably constitutes a vitally important component of the jury system. That vital component, however, has long been prone to certain abuses, some so severe that they threatened to permanently taint the fabric of our nation's judicial system, and risked irreversibly undermining public confidence in its fairness. Today, our judicial system embraces the fundamental principle that the accused has "the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Batson, 476 U.S. at 85-86 (citing Martin v. Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 339, 344-45 (1879)); see also Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting) (recognizing that an individual's race "simply is unrelated to his fitness as a juror"). The juror discrimination test enunciated in Batson - the Batson challenge - is an important, prophylactic safeguard. However, it took a number of legal developments to establish it.

         B. Discrimination in Jury Selection and the Early Efforts at Eradication

         While society clings to the notion that "[o]ur Constitution is colorblind, and neither knows nor tolerates classes among citizens," Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), it is imperative that we acknowledge our country's past horrific conduct and contempt towards African Americans. See, e.g., Virginia v. Black, 538 U.S. 343, 352-57 (2003) (noting that various forms of violence, including flogging, murder, and cross burning, were utilized as methods to intimidate African-Americans who sought integration and participation in the political process); Loving v. Virginia, 388 U.S. 1, 11 n.11 (1967) (recognizing that the statutory "prohibit[ion against] only interracial marriages involving white persons," while permitting African Americans and other "nonwhite[s]" to "intermarry without statutory interference," "demonstrate[d] that the racial classifications" were unconstitutional "measures designed to maintain White Supremacy"); Brown v. Bd. of Educ., 347 U.S. 483, 490 (1954) (observing that "[e]ducation of [African Americans in the South] was almost nonexistent . . . [and] was forbidden by law in some states").

         Even after the end of the Civil War, the ratification of the Civil War Amendments, and the efforts of Reconstruction, African-Americans regularly experienced extensive forms of hateful discrimination, both abstract and direct. Southern state legislatures, refusing to accept the outcome of the Civil War, engineered vast schemes of laws and regulations that hindered the advancement of the African-American people. Today, we colloquially refer to these as Jim Crow laws - discriminatory tactics specifically designed to minimize the status of the African-American people in nearly all areas of society, most notably the "separate but equal" concept applied to public facilities, transportation, and schools. See Boynton v. Virginia, 364 U.S. 454, 462-63 (1960) (holding that segregation in public bus terminals is unlawful); Brown, 347 U.S. at 495 (holding that segregation in public education is unconstitutional); Simkins v. City of Greensboro, 246 F.2d 425, 426 (4th Cir. 1957) (per curiam) (enjoining segregation of a public golf course); Willis v. Pickrick Rest., 231 F.Supp. 396, 401-02 (N.D.Ga. 1964) (enjoining restaurant owner from refusing service to African-Americans). Another way of thwarting the rights of African-Americans was to preclude them from serving on juries.

         In 1879, shortly after the end of Reconstruction and at the dawn of the Jim Crow era, an African-American man named Taylor Strauder challenged his murder conviction, asserting a violation of his Fourteenth Amendment right to equal protection after an all-white jury had sentenced him to death. Strauder v. West Virginia, 100 U.S. 303, 304 (1880). West Virginia by statute had established that "[a]ll white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided." 1872-73 W.Va. Acts 102. Because no other statute existed governing the composition of juries, this allowed only for the possibility of an all-white male jury in every criminal trial. See Strauder, 100 U.S. at 305. Suspecting that the jury's racial homogeneity had unfairly deprived him of a fair trial, Strauder appealed the matter to the United States Supreme Court, which granted certiorari.

         In its analysis in Strauder, the Supreme Court directly addressed the Fourteenth Amendment's purpose and intent, holding that "[i]t was designed to assure to the [African-American] race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government . . . whenever it should be denied by the States." Id. at 306. In identifying those protections, the Court determined that the Fourteenth Amendment granted African-Americans a "positive immunity," which it defined as, "the right to exemption from unfriendly legislation against them distinctively . . . implying inferiority in civil society." Id. at 307-08.

         Based upon that standard, the Court concluded that the blatantly discriminatory nature of the West Virginia statute "amount[ed] to a denial of the equal protection of the laws to [an African-American] man when he is put upon trial for an alleged offence against the State." Id. at 310. Strauder represented a pivotal first step in "the Court's unceasing efforts to eradicate ...

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