THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton,
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
D. ALSTON, JR. JUDGE
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.
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.
initial venire panel of prospective jurors was comprised of
30 individuals. After the trial court granted several strikes
for cause, 23 individuals remained. 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
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. 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.
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.
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.
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."
on appellant's charges was held and ultimately the jury
convicted appellant, and this appeal followed.
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.
The Origins and Fundamental Aspects of the Jury
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
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."
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.
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.
Discrimination in Jury Selection and the Early Efforts at
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").
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
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
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.
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 ...