                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


BOBBY DEAN RITCHIE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1251-98-4              JUDGE JERE M. H. WILLIS, JR.
                                               JULY 20, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Leslie M. Alden, Judge

          Mark Bodner for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his jury trial convictions of possession of

a controlled drug with the intent to distribute and distribution

of a controlled drug, in violation of Code § 18.2-248, Bobby

Dean Ritchie contends that the trial court erred in sustaining

the Commonwealth's peremptory strike of the only

African-American venireman without receiving a particularized

and racially neutral explanation.   We find no error and affirm

the judgment of the trial court.

     Ritchie is African-American.   The Commonwealth exercised

one of its peremptory strikes to remove from the jury Tricia

Jefferson, the only African-American member of the venire.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Defense counsel objected to the strike, arguing that a

prospective juror may not be removed by peremptory strike solely

on the basis of race.    See Batson v. Kentucky, 476 U.S. 79, 89

(1976).   The Commonwealth's attorney explained that he struck

Jefferson because she was not a landowner and that he would have

struck a white venireman who also was not a landowner, had

defense counsel not previously struck him.

     Where a race-based strike is alleged,

           [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. On appeal, the
           trial court's findings will be reversed only
           if they are clearly erroneous.

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

(1994) (citations omitted).

     The Commonwealth's attorney's explanation that he struck

Jefferson because she was not a landowner in the county is

facially race-neutral.   No evidence suggested that this

explanation was a pretext for removing her because of race.   The

Commonwealth's attorney further explained that he wanted to

strike a white male non-landowner, and would have, had the

defense not struck him first.   "'Unless a discriminatory intent

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is inherent in the prosecutor's explanation, the reason offered

will be deemed race neutral.'"     Purkett v. Elem, 514 U.S. 765,

768 (1995) (citation omitted).    The trial court's finding that

the Commonwealth's race-neutral explanation was bona fide is

entitled to great deference, as the trial court is in the unique

position "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."     Robertson v. Commonwealth, 18 Va.

App. 635, 639, 445 S.E.2d 713, 715 (1994) (citation omitted).

     We affirm the judgment of the trial court.

                                                     Affirmed.




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Benton, J., dissenting.

       On voir dire, Jefferson was one of several venire persons

who indicated that a family member had been the victim of a

crime.    In response to defense counsel's questioning, Jefferson

said "[her] mom had her purse stolen from her office . . . three

or four years ago."   The parties asked no other questions of

her.   The prosecutor used his peremptory challenge to remove

Jefferson, the only African-American person on the venire, and

later justified removing her by stating she was not "a

landowner" in the county.    When asked by the judge, "[w]hat does

that have to do with it?," the prosecutor suggested that

Jefferson's non-landowner status concerned her "interest in what

goes on in Fairfax County."

       Because the prosecutor's exercise of peremptory challenges

is subject to the command of the Fourteenth Amendment, the

Supreme Court has clearly stated that "[t]he prosecutor . . .

[, when called upon to explain this challenge,] must articulate

a neutral explanation related to the particular case to be

tried."    Batson v. Kentucky, 476 U.S. 79, 98 (1986) (footnote

omitted) (emphasis added).    See also Jackson v. Commonwealth, 8

Va. App. 176, 185, 380 S.E.2d 1, 3, aff'd on reh'g en banc, 9

Va. App. 169, 384 S.E.2d 343 (1989).   The reason stated by the

prosecutor for removing Jefferson had no bearing on the case to

be tried, but it has profound implications for systemically

excluding Jefferson and other racial minorities.
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            When any large and identifiable segment of
            the community is excluded from jury service,
            the effect is to remove from the jury room
            qualities of human nature and varieties of
            human experience, the range of which is
            unknown and perhaps unknowable. It is not
            necessary to assume that the excluded group
            will consistently vote as a class in order
            to conclude, as we do, that its exclusion
            deprives the jury of a perspective on human
            events that may have unsuspected importance
            in any case that may be presented.

Peters v. Kiff, 407 U.S. 493, 503-04 (1972) (footnote omitted).

     "The Equal Protection Clause guarantees the defendant that

the State will not exclude members of his race from the jury

venire on account of race, or on the false assumption that

members of his race as a group are not qualified to serve as

jurors."    Batson, 476 U.S. at 86 (citation omitted) (footnote

omitted).   By accepting the reason stated by the prosecutor in

this case, "[t]his Court again sends the message that in

Virginia any reason will suffice to remove African-Americans

from juries so long as the prosecutor does not admit on the

record race as the reason and the trial judge blindly accepts

the prosecutor's assertion that race was not the reason."     Buck

v. Commonwealth, 16 Va. App. 551, 561, 432 S.E.2d 180, 186

(1993) (en banc) (Benton, J., dissenting), aff'd, 247 Va. 449,

443 S.E.2d 414 (1994).   I again dissent.




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