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Bethea v. Commonwealth

Supreme Court of Virginia

August 28, 2019





         A jury convicted James Willie Bethea of first-degree murder. On appeal, Bethea challenges that conviction by claiming that the trial court violated the holding of Batson v. Kentucky, 476 U.S. 79 (1986), by permitting the prosecutor to exercise a racially motivated peremptory strike of an African-American juror. The trial court found that the strike was not racially motivated, and the Court of Appeals affirmed, as do we.


         A grand jury indicted Bethea for the first-degree murder of Charles Adkins. Bethea's first trial ended in a mistrial because the jury could not reach a verdict. During the jury selection for Bethea's retrial, the trial court, the Commonwealth, and the defense asked a series of voir dire questions of the jury panel.

         Throughout the questioning by the Commonwealth, the transcript recorded several different types of responses from the 23-member venire panel. The transcript sometimes recorded what appears to be the panel's collective verbal answers, particularly to the prosecutor's general questions that suggested a yes-or-no right answer. See J.A. at 12-13, 16-17, 27-29, 31-32 ("THE JURY PANEL: Yes."); id. at 16-17, 20-21, 27-28, 30, 32, 34 ("THE JURY PANEL: No."). The transcript is unclear, however, whether the court reporter was verifying that she personally had heard an audible "Yes" or "No" from each of the 23 venire members or, perhaps just as likely, that she was simply noting her interpretation of an amalgam of their verbal and non-verbal responses to questions that suggested a particular answer.

         The prosecutor indicated once that jurors had raised their hands to communicate an affirmative answer to a question. See id. at 13 ("Has anyone here served on a jury before? A couple of hands. Keep them up for me for a second."). In several other places, the transcript recorded a non-answer to questions by the prosecutor: "THE JURY PANEL: No response." Id. at 16, 18, 19, 20, 33. And, on several other occasions, no response at all is again recorded for a pending question, but the prosecutor, apparently prompted by a nod or a raised hand, specifically identified a juror who had offered a personal response to the question. See id. at 17, 18, 22, 32-33. At one point during voir dire, the trial court called upon a specific juror by name and asked, "you heard the questions that I asked earlier. I didn't hear you raise your hand or see you raise your hand. Do you have any issues at all that you need to bring forward to the Court?" Id. at 26-27. The transcript thereafter stated, "(No audible response.)." Id. at 27.

         After voir dire, both sides exercised their peremptory strikes. See generally 5 Ronald J. Bacigal, Virginia Practice Series: Criminal Procedure § 16:6, at 479 (2018-2019 ed.) ("In felony cases, the Commonwealth and the defendant have four peremptory challenges each . . . ."). The Commonwealth used two of its four peremptory strikes on African-American jurors. Bethea's trial counsel made a Batson challenge to the Commonwealth's exclusion of both African-American jurors. He stated that he had become "aware of a conversation" between his law partner, "Mr. Leahy," and the prosecutor that had occurred after the first trial. Id. at 37. In this conversation, the prosecutor reportedly relayed to Leahy that "the jury was nine-to-three to convict, and the three people who voted to acquit were black and then something about the Black Lives movement." Id.[1]

         In response, the prosecutor said that, with respect to the stricken juror at issue in this appeal, [2] she had struck the juror because the juror "didn't answer all the questions and she appeared emotional at times." Id. at 38. "And when I asked if everyone would promise to consider all the evidence, and if they would raise their hand to do so," the prosecutor explained, "she didn't raise her hand." Id. Bethea's counsel replied: "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." Id. Bethea's counsel did not, however, contend that the prosecutor was mistaken about the specific voir dire question that she had recalled asking or about the response that she had remembered the juror making to that question.

         During the colloquy with counsel, the trial court stated that it did "recall when [the prosecutor] made the request, when the jury was to raise the hand." Id. at 40. But the court stated that it "did not scan the jury" and "did not see at that time that anybody did not raise their hand." Id. Based upon its own recollection and counsel's arguments, the court denied the Batson motion, holding that the prosecutor's explanations "are race-neutral reason[s] for making these particular peremptory strikes, and I'm going to allow them to go forward as stricken." Id. at 41. The court also observed that, even following the Commonwealth's use of two of its four peremptory strikes on African-American jurors, "[t]here are other African-Americans on the jury." Id. at 40.

         The case proceeded to trial, with the Commonwealth presenting evidence of "Bethea's DNA" on the victim's "fingernails," the victim's blood stain on the floor mat of "Bethea's vehicle," and a pattern of "inconsistent statements" made by Bethea to an investigator. Appellant's Br. at 5. In his case-in-chief, Bethea only called his wife to the witness stand to support his alibi defense. The jury found Bethea guilty of first-degree murder and sentenced him to life imprisonment.

         Nearly seven months after the trial, Bethea's counsel moved the court to set aside the verdict based upon his earlier Batson challenge. At a hearing on the motion, Bethea's counsel conceded that "[t]he Commonwealth gave a race-neutral reason, Your Honor." J.A. at 60. The problem, counsel argued, was that the prosecutor's recollection was mistaken about the question that she had asked and to which the juror had not responded: "The Commonwealth, at the time, said, 'And when I asked if everyone would promise to consider all the evidence and if they would raise their hand to do so, she didn't raise her hand.'" Id. "Now that question was not asked," Bethea's counsel asserted, "and that response was not called for." Id. at 60-61. Bethea's counsel acknowledged, however, that "during voir dire the Commonwealth did ask for a show of hands but it was to a different question regarding motive." Id. at 61. The question regarding motive asked jurors to raise their hand if "anyone here . . . has a problem with th[e] law" that does not require the Commonwealth to prove motive for murder. Id. The transcript reflected "[n]o response" to that question. Id. at 20.

         Bethea's counsel affirmatively conceded that, at the time of his Batson motion, he had not objected to the Commonwealth's peremptory strike on the ground that the prosecutor's recollection was mistaken. "We the defense did not object to this at the time . . . . [W]e didn't stand up and say well, Your Honor, that question was never asked." Id. at 66. As counsel viewed it, "if the defense had objected and said Your Honor, that question was never asked," counsel "suspect[ed] the Commonwealth's response would have been at that time yes, it was." Id. at 67.

         Bethea's counsel argued that "there are only two possibilities" for why the transcript did not reflect the prosecutor's proffered race-neutral reason - either the prosecutor had made a mistake and "didn't remember properly what happened," or her proffered reason had "deliberately misrepresented the facts to the [c]ourt." Id. at 66-67. Bethea's counsel then emphatically stated: "I would like to state that in both the motion and in the argument today the defense was very careful in the words it used, went out of the way with great lengths with the way we phrased that, to avoid as much as possible implying any deliberate fraud." Id. at 73. "In the motion," Bethea's counsel told the trial court, "you will not see words like misrepresentation or false[hood] even though misrepresentation or a falsehood could be innocently made just as well as deliberately made. The defense didn't even want to come anywhere close to implying that." Id.

         In response, the Commonwealth argued that ambiguities in the transcript made it difficult to respond to Bethea's argument because it "ignores . . . the non-verbal context in which these questions were asked." Id. at 70. The transcript, the Commonwealth further argued, did not refute the prosecutor's recollection that the juror had not specifically responded to all of the questions. In one of the questions from the prosecutor, she had asked the jurors for a show of hands if they had a "problem" with their duty to "follow the law" and not to require the Commonwealth to "prove something the law says we don't have to prove." Id. at 20. She subsequently asked whether the jurors were "comfortable considering circumstantial evidence." Id. at 31. The Commonwealth, in response to Bethea's motion to set aside the verdict, explained what the transcript had not fully disclosed:

What is lost in this latter portion of the transcript is the context in which the question was asked. The Commonwealth, having already asked members of the panel to raise their hands in response to a question, raised her own hand in a demonstrative way and the jurors followed suit. There was more than one occasion during the course of voir dire where the members raised their hand, despite only one instance being clear through the transcript. And it was in response to just such a question when all the panel members, save for [the stricken juror], responded with raised hands. The transcript does not and cannot reflect this fact.

Id. at 52-53 (emphases added).

         The Commonwealth also placed great weight on the response that Bethea's counsel had given to the trial court at the time that the prosecutor had proffered a race-neutral reason for striking the juror. Counsel's response, the Commonwealth summarized, was not that the prosecutor "didn't ask her to raise her hand or she didn't raise her hand" to a particular question. Id. at 71. Counsel instead responded, "I don't think that amounts to anything," id. at 38, which the Commonwealth interpreted as an implied concession to the prosecutor's "assertion that the juror didn't raise her hand," id. at 71. After hearing these arguments, the trial court succinctly held that "the Commonwealth did give a race-neutral reason at that point. . . . [I]n the context of a trial and from all that was offered and argued at that time, I decided to deny the [Batson challenge to the] strike and I deny the motion in regard to that at this time as well." Id. at 76.

         Bethea appealed to the Court of Appeals on two separate grounds, one of which addressed the Batson issue. The Court of Appeals observed that Bethea had "initially challenged the peremptory strike in the trial court based on a proffer of a hearsay statement purportedly made by the prosecutor to [defense counsel's law partner]." Bethea v. Commonwealth, 68 Va.App. 487, 502 n.7 (2018). The Court of Appeals did not analyze the issue, however, because Bethea had "provided no evidence supporting this hearsay allegation and [did] not rely on it on appeal." Id. Instead, the Court of Appeals responded to Bethea's argument

that the fact that the prosecutor did not actually ask the venire members to "raise their hands" if they "promised to consider all of the evidence," in direct contradiction of her representation to the trial court, plainly shows that the race-neutral reasons were pretextual. He suggests that the reason given concerning the question was pretextual and thus the other reasons given were by extension also pretextual. However, the appellant's argument discounts the fact that a prosecutor may be both mistaken and genuine. An inaccuracy such as the one in this case is relevant to determining the prosecutor's credibility but does not as a matter of law compel the conclusion that the reason given is pretextual.

Id. at 501-02 (emphasis added) (alterations and footnotes omitted). The Court of Appeals further explained:

The prosecutor's representation that she instructed the venire members to raise their hands if they promised to consider all the evidence was inaccurate. The record shows that she had in fact asked them to respond with a "yes" to the question of whether they would focus on the evidence presented to them and asked them to raise their hands in response to a different question. However, the represented question was sufficiently similar to the question asked and was race-neutral. In the context of these facts, the race-neutral reasons given were not pretextual as a matter-of-law.
Additionally, the trial court's implicit determinations, both before and after the inaccuracy was discovered, that the prosecutor was credible in giving the race-neutral reasons was not clear error. No evidence in the record demonstrates that the trial court erred in deciding that the prosecutor did not purposefully discriminate based on race in striking the juror from the jury panel. The prosecutor represented that the venire member did not raise her hand when asked if she "promised to consider all of the evidence," but as was later discovered, the prosecutor actually asked similar questions that involved how the prospective jurors would view the evidence. The prosecutor also asked the prospective jurors to raise their hands if they had "a problem" applying legal rules limiting the amount of evidence that the Commonwealth was required to present.

Id. at 502-03 (alteration omitted). The Court of Appeals affirmed Bethea's conviction, and this appeal followed.


         We granted this appeal on a single assignment of error:

The Court of Appeals erred when it found that, in response to a timely Batson challenge, the Commonwealth's proffered race-neutral reason for striking a black juror was not pretextual as a matter of law, and thus affirmed Appellant's conviction. Specifically, the Court of Appeals erred when it affirmed the trial court's denial of Appellant's motion to set aside the verdict and declare a mistrial because the Commonwealth's reason for the strike was the juror's failure to respond in a manner never requested to a question the Commonwealth never asked.

Appellant's Br. at 2 (emphases added).


         We first address whether Bethea's assignment of error properly frames the issue on appeal. At the time of the Batson challenge, Bethea's counsel stated that he was "watching" the juror throughout voir dire. J.A. at 38. Despite this attention, Bethea's counsel never suggested that the prosecutor was mistaken about the juror failing to raise her hand in response to the question that the prosecutor had recalled asking. During argument on his motion to set aside the verdict, Bethea's counsel conceded this waiver: "We the defense did not object to this at the time . . . . [W]e didn't stand up and say well, Your Honor, that question was never asked." Id. at 66.

         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.

         In Virginia, objections to the seating of jurors must be asserted "[p]rior to the jury being sworn." Code § 8.01-352(A). Untimely objections are generally waived. A trial court has the authority to grant leave to make untimely objections, see id., but only if the court's sound discretion warrants doing so. The statute also emphasizes that either a timely objection or an untimely objection permitted by leave of court is necessary for the court to grant a motion "setting aside a verdict or granting a new trial." Code § 8.01-352(B). Even then, however, the objecting party must prove that the "irregularity was intentional" or that it would "probably cause injustice" to one of the parties. Id.

         Procedural-default principles require that the argument asserted on appeal be the same as the contemporaneous argument at trial. See, e.g., Riner v. Commonwealth, 268 Va. 296, 325 (2004) (holding that an appellant waived a challenge to double-tiered hearsay by failing to specifically object to the trial court's incomplete ruling as to only one of the two tiers of hearsay).[3] Specificity and timeliness undergird the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to resonate with simplicity: "Not just any objection will do. It must be both specific and timely - so that the trial judge would know the particular point being made in time to do something about it." Dickerson v. Commonwealth, 58 Va.App. 351, 356 (2011) (emphases in original) (citation omitted); see also Palmer v. Atlantic Coast Pipeline, LLC, 293 Va. 573, 579 (2017) (stating that the contemporaneous-objection rule requires "reasonable certainty at the time of the ruling" and "exists to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials" (citations omitted)).

         Consequently, neither an appellant nor an appellate court should "put a different twist on a question that is at odds with the question presented to the trial court." Commonwealth v. Shifflett, 257 Va. 34, 44 (1999). Specific, timely objections are required because they are often resolved, either because the trial court intervenes with a corrective ruling that accommodates the asserted interests of both sides or because opposing counsel gives a winning explanation that moots the objection altogether. See Scialdone v. Commonwealth, 279 Va. 422, 437 (2010) (explaining that a specific, contemporaneous objection "must be made at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error" and that "a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding" (emphases added) (alteration and citations omitted)).

         Virginia's procedural-default principles apply to Batson challenges in the same way that they apply to other trial objections. See Buck v. Commonwealth, 247 Va. 449, 452 (1994) ("At trial, however, [the defendant] did not make the [Batson] arguments which he makes here.").[4] To be sure, in the Batson context, federal courts applying their own contemporaneous-objection rule have held that "a lawyer must challenge an adversary's use of peremptory challenges before the completion of jury selection, in part so that the court can (i) contemporaneously assess the adversary's conduct; and (ii) remedy any improper conduct without having to repeat the jury selection process." United States v. Franklyn, 157 F.3d 90, 97 (2d Cir. 1998) (emphasis in original). This rule has a highly practical application:

Given the often subtle reasons for the exercise of peremptory challenges, a court's determination of whether a prosecutor has used them in a discriminatory fashion will often turn on the judge's observations of prospective jurors and the attorneys during voir dire and an assessment of their credibility. It is nearly impossible for the judge to rule on such objections intelligently unless the challenged juror either is still before the court or was very recently observed.

Weeks v. New York, 273 F.3d 76, 90 (2d Cir. 2001) (emphasis in original) (citation omitted), abrogated on other grounds by National R.R. Passenger v. Morgan, 536 U.S. 101, 107-13 (2002). This reasoning closely parallels the views expressed by our Court of Appeals two decades ago:

"The trial court is uniquely positioned to evaluate the circumstances in each case and to exercise its discretion" in deciding whether to reseat persons improperly struck from the jury panel or to discharge the venire and select a jury from a new panel. A trial court's exercise of discretion may be improperly cabined, however, if the challenge is made after the jury is sworn and the remaining venirepersons are discharged. At that point, the court cannot reseat a juror improperly stricken, and discharging the venire and beginning the process of jury selection anew may be compelled under the circumstances. Such a result will generally serve neither the public policy Batson seeks to advance, nor the fair administration of justice.

Lewis v. Commonwealth, 25 Va.App. 745, 751 (1997) (citation omitted).[5]

         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. J.A. at 38. 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." Id.

         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," id. 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.

         Defending his admitted failure to contemporaneously assert that the prosecutor had a mistaken recollection of the voir dire, Bethea's counsel contends on appeal that his response to the prosecutor's proffered race-neutral reason was merely "ambiguous" and that his statements did not imply that he was "familiar with the question to which [the juror] failed to raise her hand." Reply Br. at 4-5 (quoting Appellee's Br. at 19-20). "This is mere speculation on the part of the Commonwealth," Bethea's counsel argues. Id. at 5. His "ambiguous statements," counsel maintains, did "not constitute [an] implicit acceptance that what the prosecutor said was true . . . . To be conclusive, it must be unambiguous." Id. at 7. Bethea's counsel implicitly concludes that we should consider the merits of his argument on appeal based upon not only his post-trial argument in support of his Batson motion but also his contemporaneous argument at trial.

         We are unpersuaded by Bethea's attempt to combine his contemporaneous argument at trial with his post-trial argument. He argued at trial that the Commonwealth's race-neutral explanation was irrelevant, but then, seven months after trial, he argued for the first time that the prosecutor's explanation was highly relevant because it was based upon a mistaken recollection of the voir dire exchange. These arguments are ...

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