                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges McCullough and Decker
UNPUBLISHED


              Argued at Chesapeake, Virginia


              NORMAN LEO MADISON
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 2226-13-1                               CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                  OCTOBER 7, 2014
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                              Johnny E. Morrison, Judge

                                W. McMillan Powers, Assistant Public Defender (Office of the
                                Public Defender, on brief), for appellant.

                                Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Norman Leo Madison (“appellant”) appeals his conviction of assault and battery of a law

              enforcement officer, in violation of Code § 18.2-57, following a jury trial in the Circuit Court of the

              City of Portsmouth (“trial court”). He contends the trial court erred by denying his challenge to the

              Commonwealth’s use of peremptory strikes to remove four African-American members of the

              venire. He specifically contends that the Commonwealth’s articulated justification for removing

              four African-American members of the venire was a pretext for unconstitutional discrimination.

                                                            I. BACKGROUND

                      The underlying facts of appellant’s conviction are not at issue. Appellant’s sole assignment

              of error relates to his contention that the trial court erred by denying his challenge to the




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth’s use of peremptory strikes to remove four African-American members of the

venire.1

           At trial, during voir dire, the Commonwealth exercised its peremptory strikes to remove

Regina Potts, Jesse Council, Vivian White, and Janice Whitehead, all of whom are

African-American. Appellant challenged the Commonwealth’s peremptory strikes pursuant to

Batson v. Kentucky, 476 U.S. 79 (1986).2 Appellant asserted that, “Of the jurors struck by [the

Commonwealth,] it appears they’re all African-American. None of them seemed to answer any

questions that would make them appear to be detrimental to the Commonwealth’s case.” The

trial court found that appellant made a prima facie showing of purposeful discrimination under

Batson. The trial court then afforded the Commonwealth an opportunity to provide a

race-neutral reason for its peremptory strikes. The Commonwealth explained that it struck Potts

and Council because of their prior experience with law enforcement.3 The trial court accepted

the Commonwealth’s explanation as sufficiently race-neutral as to not be purposefully

discriminating, observing, “We’ll leave those two [strikes].”

           With respect to the Commonwealth’s peremptory strikes to remove Whitehead and

White, the Commonwealth explained that it possessed no basis for striking any remaining

members of the venire. In the absence of a compelling reason to strike any of the remaining




           1
        On May 16, 2014, in a per curiam order, this Court directed the parties to address
whether consideration of appellant’s assignment of error was barred pursuant to Buck v.
Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994), and its progeny.
           2
         Batson, 476 U.S. at 89 (excluding a potential juror solely on the basis of the juror’s race
is purposeful discrimination and a violation of the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution).
           3
        During voir dire, both Potts and Council indicated that an immediate family member
had been arrested or convicted of an offense.

                                                 -2-
veniremen, the Commonwealth stated it selected White and Whitehead solely because their

names appeared at the bottom of the alphabetical list of the venire members.4

        The trial court accepted the Commonwealth’s explanation as race-neutral, noting, “All

right. I’m going to let it go.” In response, appellant stated, “Just note my objection for the

record, Your Honor.”

        At trial, the jury found appellant guilty of assault and battery of a law enforcement

officer, in violation of Code § 18.2-57. The trial court imposed the jury’s recommended

sentence of two years’ incarceration.

                                           II. ANALYSIS

        Appellant asserts that the Commonwealth’s proffered explanation for the exercise of its

peremptory strikes to remove four African-American persons from the venire was a pretext for

racial discrimination. Accordingly, appellant asserts the trial court erred by overruling his Batson

challenge to the Commonwealth’s use of its peremptory strikes to remove four African-American

individuals from the venire.

        “In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court held that

excluding a potential juror solely on the basis of the juror’s race is purposeful discrimination and a

violation of the Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution.” Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). As this

Court held in Lightfoot v. Commonwealth, 50 Va. App. 723, 653 S.E.2d 615 (2007):

                Under Batson’s three-step test, a defendant asserting such a violation
                initially must show that the individual is a member of a cognizable
                racial group, and make a prima facie showing that the peremptory
                strike was made on racial grounds. [If] a prima facie case is put
                before the court, the burden shifts to the prosecution to produce
                race-neutral explanations for striking the juror. The defendant can
                then argue that the prosecution’s explanations were purely a pretext

        4
         The Commonwealth told the trial court, “Your Honor, there was no other basis that I
had for striking any of the jurors, so I started from the bottom and worked my way up.”
                                                   -3-
                for unconstitutional discrimination. Under each of Batson’s three
                steps, however, the burden of persuasion rests with, and never shifts
                from, the opponent of the strike.

Lightfoot, 50 Va. App. at 727, 653 S.E.2d at 617-18 (internal citations and quotations omitted).

        In Buck v. Commonwealth, 247 Va. 449, 451, 443 S.E.2d 414, 415 (1994), the accused, an

African-American man, challenged the Commonwealth’s use of its peremptory strikes to remove

two African-American members of the venire. The Commonwealth explained to the trial court that

it struck one African-American woman because of her marital status, and one African-American

man because of his manner of dress and his place of residence. Before the trial court determined

whether the Commonwealth’s articulated justification for the strikes was race-neutral, it provided

Buck the opportunity to explain why he believed the Commonwealth’s reasons were pretextual.

Buck stated, “My concern was that the jurors are not representative of the population. There were

three blacks on the panel. We now only have one, and I would think more significant reasons than

what was given should be shown.” Id. at 452, 443 S.E.2d at 416. However, on appeal, Buck

asserted that the Commonwealth’s explanations for its peremptory strikes were pretextual because

they were inconsistently applied, based on a mistake of fact, and based on improper generalizations.

        The Supreme Court held that Buck failed to present the same arguments to the trial court

that he presented on appeal. The Court held:

                Nothing in [Buck’s] statement informed the trial court that Buck
                believed that the reasons advanced were pretextual because they
                were inconsistently applied, nor did Buck’s statement advise the
                court that the reasons were based on a mistake concerning an
                address, an improper assumption of toleration for drug-related
                crimes, or erroneous inferences drawn from the wearing of an
                athletic jacket.

Id. As a consequence of Buck’s failure to present to the trial court the same arguments he raised on

appeal, the Court applied Rule 5:25 to bar its consideration of Buck’s assertion of trial court error.

Id. at 452-53, 443 S.E.2d at 416.


                                                  -4-
        Here, appellant did not assert to the trial court, as he does for the first time on appeal, that

the Commonwealth’s explanation for striking four African-American members of the venire was a

pretext for racial discrimination. After the trial court accepted the Commonwealth’s explanation for

its peremptory strikes as race-neutral, appellant was required to show to the trial court that the

Commonwealth’s “explanations were purely a pretext for unconstitutional discrimination.”

Lightfoot, 50 Va. App. at 727, 653 S.E.2d at 618. However, in response to the Commonwealth’s

explanation for its peremptory strikes, appellant stated only, “Just note my objection for the record,

Your Honor.” Appellant is barred from asserting, for the first time on appeal, that the trial court

erred by overruling his Batson challenge because the Commonwealth’s explanation for its

peremptory strikes was merely a pretext for racial discrimination.

        Because appellant failed to present to the trial court the argument he makes for the first time

on appeal, the Court will not consider his assignment of trial court error. Rule 5A:18 (“No ruling of

the trial court . . . will be considered as a basis for reversal unless an objection was stated with

reasonable certainty at the time of the ruling . . . .”). Accordingly, we affirm the judgment of the

trial court convicting appellant of assault and battery of a law enforcement officer, in violation of

Code § 18.2-57.

                                                                                                Affirmed.




                                                   -5-
