                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued by teleconference


FLOYD WHITE, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0292-01-2              JUDGE JERE M. H. WILLIS, JR.
                                             FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Walter W. Stout, III, Judge

          C. David Whaley (Anthony G. Spencer;
          Morchower, Luxton & Whaley, on brief), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Floyd White, Jr. was convicted in a jury trial of:    (1)

aggravated malicious wounding, in violation of Code § 18.2-51.2;

(2) malicious wounding, in violation of Code § 18.2-51; (3)

possession of a firearm by a convicted felon, in violation of Code

§ 18.2-308.2; and (4) feloniously discharging a firearm in public,

in violation of Code § 18.2-280.   On appeal, he contends that the

trial court erred:   (1) in disallowing counsel's examination of

prospective jurors as to their impartiality; (2) in denying his

Batson motion as untimely made; (3) in unfairly prejudicing him by

erroneous evidentiary rulings; (4) in giving a jury instruction

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that was unsupported by the evidence; (5) in allowing improper

argument by the Commonwealth; and (6) in refusing to declare a

mistrial.    White also contends that the Commonwealth failed to

prove beyond a reasonable doubt that he committed the offenses.

Because the trial court erred in refusing to conduct a Batson

review following timely motion by White, we reverse and remand for

a new trial if the Commonwealth be so advised.

                            I.   BACKGROUND

        On June 3, 1999, White, a convicted felon, purchased a .380

caliber pistol with the assistance of his girlfriend, Artisha

Mayo.    Later that day, he, Mayo, and Jacoby Anderson drove

around the City of Richmond in his Dodge minivan.     While driving

north on Chamberlayne Avenue, White saw Derrick Smith in the

passenger seat of a car that was passing in the opposite

direction.    White made a U-turn and began to follow the other

vehicle toward downtown Richmond.

        Smith and the driver of the other car, Warren Nightingale,

stopped at a traffic light at the intersection of Broad and

First Streets.    Approaching the intersection, White instructed

Anderson to switch places with Mayo, who was sitting in the

front passenger seat, and to get the gun.     Anderson loaded the

.380 caliber pistol and grabbed his own .38 caliber pistol.

        When they arrived at the intersection, White put the

minivan in park and Anderson handed him the .380 pistol.       White

then leaned the gun on the windowsill of the driver's door and

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told Anderson to shoot.   White and Anderson fired shots at

Smith.   Both Smith and Nightingale were hit.   As a result of the

shooting, Smith has been unable to walk and is confined to a

wheelchair.

     Evidence of the foregoing events sufficiently supports

White's convictions.

                             II.    ANALYSIS

     On appeal White assigns error on seven grounds.     Because we

find the evidence sufficient but reverse his convictions and

remand the case back to the trial court for refusing to conduct

a Batson review, all the other issues are moot.    However, we

direct the trial court and counsel's attention to Code

§ 8.01-358 and Rule 3A:14.

     In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme

Court held that the Equal Protection Clause prohibited the

prosecutor's exercise of peremptory jury challenges for the

purpose of excluding potential jurors on account of race.     The

Court stated:

           Although a prosecutor ordinarily is entitled
           to exercise permitted peremptory challenges
           "for any reason at all, as long as that
           reason is related to his view concerning the
           outcome" of the case to be tried, United
           States v. Robinson, 421 F. Supp. 467, 473
           (Conn. 1976), mandamus granted sub nom.
           United States v. Newman, 549 F.2d 240 (2d
           Cir. 1977), the Equal Protection Clause
           forbids the prosecutor to challenge
           potential jurors solely on account of their
           race or on the assumption that black jurors
           as a group will be unable impartially to

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               consider the State's case against a black
               defendant.

Id. at 89.      In arriving at its decision, the Supreme Court

declined "to formulate particular procedures to be followed upon

a defendant's timely objection to a prosecutor's challenges."

Id. at 99.      Instead, it left to the lower courts the adoption of

timeliness rules. 1

        In Virginia, "a party must raise a Batson challenge prior

to the time the jury is sworn and the remaining venirepersons

are excused."       Lewis v. Commonwealth, 25 Va. App. 745, 748, 492

S.E.2d 492, 493 (1997).       However, "a Batson motion is not waived

by the defendant's failure to raise it prior to swearing of the

jury.       Rather, Code § 8.01-352 allows a Batson motion to be made

after the jury is sworn, but only with leave of the court."       Id.

at 749, 492 S.E.2d at 493 (citation omitted).

        The record shows that after peremptory strikes were made,

White challenged two of the Commonwealth's peremptory strikes as

being impermissibly motivated by racial considerations, in

violation of Batson.        The following dialogue occurred:

               MR. HENDERSON [White's Attorney]:   May we
               approach?

               THE COURT:   Yes.



        1
       The Court stated, "[i]n light of the variety of jury
selection practices in our state and federal trial courts, we
make no attempt to instruct these courts how best to implement
our holding today." Batson, 476 U.S. at 99 n.24.


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          MR. HENDERSON: Motion. I would like to at
          this time raise a Batson on the objection to
          two of the strikes that Ms. Reiner made
          . . . .

          And I state to the court that based on their
          responses that they made, there was no
          reason stated which would be a valid reason
          for the striking of them. They were struck
          for no other reason than they were black.

          THE COURT: Motion comes after the strikes
          are made and under the case law it is too
          late for the Court to rule. Overruled and
          note your exception.

This ruling was error.   Following this exchange, the jury panel

was sworn and the stricken veniremen were excused.

     While the evidence at trial sufficiently supports White's

convictions, the trial court erred in refusing to conduct a

Batson review upon White's timely motion.   Therefore, we reverse

the convictions and remand the case for a new trial if the

Commonwealth be so advised.

                                         Reversed and remanded.




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