                       COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


HAYWOOD MARCUS ROBINSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1011-01-2                JUDGE ROBERT J. HUMPHREYS
                                             SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          William P. Irwin, V (Bowen, Bryant,
          Champlin & Carr, on brief), for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Jennifer R. Franklin, Assistant Attorney
          General, on brief), for appellee.


     Haywood Marcus Robinson appeals his convictions, after a jury

trial, for murder, malicious wounding, breaking and entering with

intent to commit robbery or murder, and use of a firearm to commit

murder and malicious wounding.   Robinson contends that the trial

court erred in finding the prosecutor enunciated race-neutral

bases for its use of peremptory strikes for five black members of

the venire.    For the reasons that follow, we affirm Robinson's

convictions.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
     Robinson raised a Batson motion after the Commonwealth

utilized each of its five peremptory challenges to strike five of

the eight black jurors who were part of the 23-member venire.

Specifically, Robinson stated, "the record will reflect the

defendant is black.    Eight of the twenty-three prospective jurors

are black.    All five of the Commonwealth's strikes are used to

strike blacks."

     The trial court stated that it did not "believe" Robinson had

asserted a sufficient prima facie case of discrimination but,

nevertheless, it directed the Commonwealth to state its rationale

for each of the strikes.    After the Commonwealth stated its

rationale for the strikes, the trial court denied Robinson's

motion.   Robinson raised no objection to the court's ruling, nor

did he further argue the issue.

     On appeal, Robinson contends the trial court erred in

overruling the Batson motion.    We disagree.

     We recognize the well-reasoned rule that a defendant is

constitutionally entitled to a jury panel whose members have been

selected on a racially nondiscriminatory basis.    Batson v.

Kentucky, 476 U.S. 79, 85-86 (1986).     Indeed,

             [i]n Batson, the Supreme Court stated the
             requirements for establishing a prima facie
             case of purposeful discrimination in the
             selection of a petit jury. The Court held
             that to establish such a prima facie case[:]

             "the defendant first must show that he is a
             member of a cognizable racial group . . .
             and that the prosecutor has exercised

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             peremptory challenges to remove from the
             venire members of the defendant's race.
             Second, the defendant is entitled to rely on
             the fact, as to which there can be no
             dispute, that peremptory challenges
             constitute a jury selection practice that
             permits 'those to discriminate who are of a
             mind to discriminate.' . . . Finally, the
             defendant must show that these facts and any
             other relevant circumstances raise an
             inference that the prosecutor used that
             practice to exclude the veniremen from the
             petit jury on account of their race."

Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780

(2000) (quoting Batson, 476 U.S. at 96).

     Thus,

             [a] defendant must first establish a prima
             facie showing that the peremptory strike was
             made on the basis of race. At that point,
             the burden shifts to the prosecution to
             produce explanations for striking the juror
             which are race-neutral. Even if
             race-neutral, the reasons may be challenged
             by the defendant as pretextual. Finally,
             the trial court must decide whether the
             defendant has carried his burden of proving
             purposeful discrimination by the prosecutor
             in selecting the jury panel.

Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415

(1994) (citations omitted).

     Contrary to the implication raised by Robinson, the mere fact

that the prosecution has excluded African-Americans by using

peremptory strikes does not itself establish a prima facie case

under Batson.    Batson, 476 U.S. at 96.   Instead, a defendant must

identify facts and circumstances that raise an inference that

potential jurors were excluded based on their race.    Id.


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     We first note the apparent conflict in the trial court's

ruling concerning whether Robinson established a prima facie case

of discrimination.   The trial court initially stated that it

"believed" Robinson had failed to assert the appropriate prima

facie showing of purposeful discrimination.   Nevertheless, the

trial court continued the analysis as if Robinson had established

a prima facie case, by shifting the burden of production to the

Commonwealth, requiring it to state its rationale for the manner

in which it exercised its peremptory challenges.   In light of this

facially conflicting analysis, we assume, without deciding, that

Robinson established a prima facie case of purposeful

discrimination under Batson and address the merits of his claim on

appeal.

     The prosecutor first explained that she struck two of the

venire members due to their criminal records.   This Court has held

that striking potential jurors because they have a criminal record

is an objective, race-neutral reason.   See Langhorne v.

Commonwealth, 13 Va. App. 97, 107, 409 S.E.2d 476, 482 (1991). 1

     Further, we have recognized that striking a venireman because

he or she lives near the scene of the crime, as long as the

purpose is based upon a rational, race-neutral explanation, is a

clear, specific non-racial reason for striking the potential


     1
       Indeed, Robinson conceded during oral argument that the
prosecutor properly struck from the panel the members who had
criminal records.

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juror.   See Taitano v. Commonwealth, 4 Va. App. 342, 347, 358

S.E.2d 590, 592-93 (1987) (holding that the prosecutor's concern

with the fact that the jurors lived near the defendant or near the

scene of the crime, or in areas of "high crime," as well as his

consideration of their age, dress, and demeanor, was a

sufficiently race-neutral explanation).   Here, the prosecutor

stated that she struck a third member of the venire because of the

venire-woman's residence near the crime scene.   In particular, the

prosecutor struck her due to the violent nature of the crime and

the potential for her to be intimidated in reaching a finding

concerning the murder of one of her neighbors.

     Moreover, we have found that striking jurors because they

exhibit certain negative body language can also be an adequate,

race-neutral explanation in the appropriate circumstances.   See

Goodson v. Commonwealth, 22 Va. App. 61, 81, 467 S.E.2d 848, 858

(1996) ("Age, education, employment, and demeanor during voir dire

may constitute race-neutral explanations for a peremptory

strike."); see also Robertson v. Commonwealth, 18 Va. App. 635,

640, 445 S.E.2d 713, 716 (1994).   The prosecutor explained that

she chose to strike the remaining two venire members because of

the negative body language they exhibited during her presentation

and voir dire of the venire.

           A "trial court's decision on the ultimate
           question of discriminatory intent represents
           a finding of fact of the sort accorded great
           deference on appeal," and this decision will
           not be reversed unless clearly erroneous.

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          This standard of review logically recognizes
          the trial court's unique opportunity to
          observe and evaluate "the prosecutor's state
          of mind based on demeanor and credibility"
          in the context of the case then before the
          court.

Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting

Robertson, 18 Va. App. at 639, 445 S.E.2d at 715).   Accordingly,

we find that the trial court's decision on the ultimate decision

of discriminatory intent in this matter was not "clearly

erroneous".

     In addition, as stated above,

          [i]n determining whether the Commonwealth's
          use of peremptory strikes is racially
          motivated, "the trial court must consider
          the basis of the challenges, the reasons
          proffered for the strikes, and any argument
          presented that such reasons, even if
          race-neutral, are pretextual, to determine
          whether the challenger has met his burden of
          proving purposeful discrimination in the
          selection of a jury panel."

Goodson, 22 Va. App. at 81, 467 S.E.2d at 858 (quoting Chandler

v. Commonwealth, 249 Va. 270, 277, 455 S.E.2d 219 (1995)).

Thus, Robinson's argument that the trial court improperly ended

its determination without considering whether the prosecutor's

reasons were pretextual is without merit.

     Indeed, once the prosecutor produced evidence of

race-neutral rationale, Robinson remained charged with the

burden of proving "that these facts and any other relevant

circumstances raise[d] an inference that the prosecutor used

[the stated] practice to exclude the veniremen . . . on account

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of their race."   Batson, 476 U.S. at 96.   Robinson raised no

such allegation and/or evidence of pretext.   Thus, the trial

court did not commit error in failing to consider the issue.

See Riley v. Commonwealth, 21 Va. App. 330, 464 S.E.2d 508

(1995) (holding that a trial court must specifically rule on a

defendant's allegation of pretext, when such an argument is

raised).

     Based upon the above, we will not disturb the trial court's

finding that the prosecutor's explanations for striking the five

potential jurors were race-neutral, and we affirm Robinson's

convictions.

                                                          Affirmed.




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