UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NADINE Y. THIGPEN, individually and
as Personal Representative of the
Estate of Rahsaun Richardson,
Plaintiff-Appellant,

v.
                                                                 No. 98-1487
MARY SHIELDS, Individually and as
an officer of the Prince George's
County Police Department; PRINCE
GEORGE'S COUNTY, MARYLAND;
DAVID B. MITCHELL, Chief,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-827-PJM)

Argued: May 4, 1999

Decided: June 8, 1999

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Nancy Chang, CENTER FOR CONSTITUTIONAL
RIGHTS, New York, New York, for Appellant. Jay Heyward Creech,
Upper Marlboro, Maryland, for Appellees. ON BRIEF: Kimani Paul-
Emile, Laura Davis, CENTER FOR CONSTITUTIONAL RIGHTS,
New York, New York, for Appellant. Sean D. Wallace, Upper Marl-
boro, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiff contests the district court's denial of her Batson v.
Kentucky, 476 U.S. 79 (1986), challenge to jury selection. In her first
appeal we concluded that the district court had not provided sufficient
reasons for rejecting the Batson claim. On remand, after stating addi-
tional reasons, the court held to its decision. The plaintiff then filed
a second appeal. We now affirm.

I.

Nadine Thigpen brought a civil rights action over the fatal shooting
of her son by Cpl. Mary Shields, a Prince George's County police
officer. During jury selection, Shields used peremptory challenges to
strike from the panel two African-American women and a man of
unidentified race. Thigpen protested on Batson grounds, and the dis-
trict court rejected this claim, concluding that Thigpen had not estab-
lished a prima facie case of discriminatory use of peremptory
challenges. The jury ultimately found for Cpl. Shields.

In her first appeal to us, Thigpen challenged (1) several evidentiary
rulings, (2) a jury instruction, and (3) the district court's denial of her
Batson challenge. See Thigpen v. Shields , No. 96-1335, 1997 WL
173226 (4th Cir. Apr. 11, 1997). We affirmed on the first two matters.
However, with regard to the Batson claim, we explained that we were

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unable to evaluate the district court's decision because its analysis
was insufficient. We said:

          [W]e can affirm . . . only if the record supports the district
          court's ultimate determination that Ms. Thigpen had not
          established a prima facie case. Unfortunately, it does not.
          The court's entire explanation for its ruling was:"I don't
          think that there's a prima facie case here, because I think
          one African male has been seated."

Id. at *3. Because the record did not indicate any other basis for
rejecting Thigpen's Batson claim, we remanded for further proceed-
ings.

On remand Thigpen argued that African-American women consti-
tute a distinct protected class for purposes of jury selection.* How-
ever, the district court found that Thigpen had waived this novel claim
by not raising it before; it therefore treated her claim as based solely
on race. The court went on to reject her race-based claim, finding first
that she failed to establish a prima facie case under Batson, and sec-
ond, that Shields had provided valid non-discriminatory reasons for
her peremptory challenges. Thigpen has filed a second appeal.
Although Thigpen included the hybrid race-sex point in her brief, she
abandoned it at oral argument. She continues to press her race-based
challenge, and we now consider that.

II.

A Batson challenge involves three steps. First, the party contesting
the strikes must make a prima facie case of discriminatory use of
peremptory challenges. Batson, 476 U.S. at 96-97; United States v.
Grandison, 885 F.2d 143, 145 (4th Cir. 1989). In determining
whether that party has established a prima facie case, the trial court
considers all relevant circumstances. Those circumstances include,
but are not limited to, the pattern of strikes and statements made dur-
_________________________________________________________________
*Supreme Court has separately recognized the impropriety of peremp-
tory challenges based solely on sex or solely on race. See J.E.B. v. Ala-
bama ex rel. T.B., 511 U.S. 127, 128-29 (1994); Batson, 476 U.S. at 89.

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ing voir dire. Grandison, 885 F.2d at 146. Second, if the objecting
party has made a prima facie case, the burden shifts to the striking
party to provide a race-neutral explanation for the peremptory chal-
lenge. Batson, 476 U.S. at 97. Third, once the striking party has stated
a non-discriminatory reason for its use of a peremptory challenge, the
objecting party must provide proof of discriminatory selection, not-
withstanding the neutral reason advanced by the striking party. Id. at
96-98.

A district court's findings on a Batson challenge necessarily
involve credibility determinations. Therefore, because the district
court has observed the voir dire process and the exercise of peremp-
tory challenges, its findings will be given great deference and will be
reversed only for clear error. Jones v. Plaster , 57 F.3d 417, 421 (4th
Cir. 1995).

The district court first concluded that Thigpen failed to make a
prima facie showing on her Batson challenge. It acknowledged that
Shields struck two of the three African-American members of the jury
panel. However, it gave significant weight to the fact that Shields
chose not to use her remaining strike to remove the third African-
American member of the panel. That remaining African-American
juror went on to serve as a juror at trial. The court's reliance on this
point, "although not conclusive, weighs heavily in support of the dis-
trict court finding of no discrimination." United States v. Lane, 866
F.2d 103, 106 (4th Cir. 1989); see also Grandison, 885 F.2d at 147.
Furthermore, the court found nothing in the statements of defense
counsel that suggested any discriminatory purpose for the use of
peremptory challenges.

The district court did not stop with the first step of the Batson anal-
ysis, but went on to provide additional support for its ruling. It exam-
ined Shields's stated reasons for her use of peremptory challenges and
concluded that they were legitimate. Shields justified striking the first
African-American juror on the grounds that the juror was staring at
her and lived in Prince George's County (and therefore may have
been exposed to negative publicity about the case). She justified strik-
ing a second African-American juror because the juror was approxi-
mately the same age as Thigpen and because that juror looked down
most of the time, except when she raised her head to look at Thigpen.

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The district court found that these reasons were race neutral. In addi-
tion, it determined that Thigpen failed in her burden to prove discrim-
inatory selection, despite the neutral reasons advanced by Shields.

It is entirely legitimate to strike potential jurors on the grounds of
their "general appearance and demeanor." Grandison, 885 F.2d at
149; see also, e.g., Purkett v. Elem, 514 U.S. 765, 769 (1995) (finding
stated justification that juror had "long, unkempt hair, a mustache, and
a beard" to be racially neutral). Likewise, a party may strike potential
jurors "having the most obvious common traits[other than race or
sex] linking them to the other side." United States v. McMillon, 14
F.3d 948, 953 (4th Cir. 1994) (approving use of peremptory challenge
when juror was same age as defendant and both had children). There-
fore, the district court did not err in finding that Shields's stated rea-
sons for the use of peremptory challenges were race neutral and valid.

III.

Given the district court's findings and Thigpen's failure to satisfy
her burden of proof, we cannot say that the court was clearly errone-
ous in rejecting Thigpen's Batson claim.

The district court's rejection of Thigpen's Batson claim is affirmed.

AFFIRMED

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