                    COURT OF APPEALS OF VIRGINIA


Present:  Judge Annunziata, Senior Judge Duff and
          Retired Judge Kulp *
Argued at Alexandria, Virginia


TANYA L. DRUMMOND
                                          MEMORANDUM OPINION ** BY
v.   Record No. 0903-99-1                   JUDGE JAMES E. KULP
                                                JUNE 6, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                      James A. Cales, Jr., Judge

            S. Jane Chittom, Appellate Counsel (Dianne G.
            Ringer, Senior Assistant Public Defender, on
            brief), for appellant.

            Stephen R. McCullough, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Tanya L. Drummond (appellant) was convicted by a jury of

first degree murder.   On appeal, appellant contends the trial

court committed reversible error:   (1) by overruling appellant's

Batson challenge to the Commonwealth's peremptory strike of juror

Pamela Knox; (2) by refusing to grant appellant's jury

instructions on heat of passion and the lesser-included offense of

voluntary manslaughter; and (3) in finding the evidence sufficient


     *
       Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
     **
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
to convict her of first degree murder.     We disagree and affirm

appellant's conviction.

                                   I.

                          THE BATSON CHALLENGE

     During jury selection, the Commonwealth exercised one of its

peremptory strikes to remove Pamela Knox, an African-American

female, from the jury panel.    The trial court found that appellant

had established a prima facie showing that the peremptory strike

was made on the basis of race, and required the Commonwealth to

explain the strike on some race-neutral basis.    The Commonwealth

advised the court that appellant had attended the Portsmouth

public schools and that Knox was employed by the same school

system.    Although Knox did not indicate that she knew appellant,

the Commonwealth expressed concern that a problem might

nevertheless arise during the trial.     The trial court found that

the Commonwealth had presented a non-pretextual, race-neutral

reason for striking Knox, and overruled appellant's challenge to

this strike.

     The United States Supreme Court has held 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).   Where a

defendant makes out a prima facie case that a peremptory strike is

based upon race, it is then incumbent upon the prosecutor to

produce explanations for striking the juror that are race-neutral.

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

                                 - 2 -
(1994).   "If the explanation is based upon factors other than the

juror's race, it is deemed to be race neutral."   Kasi v.

Commonwealth, 256 Va. 407, 421, 508 S.E.2d 57, 65 (1998), cert.

denied, 119 S. Ct. 2399 (1999).    A defendant may challenge any

race-neutral reason offered by the prosecutor as being pretextual,

and the trial court must determine whether the defendant has

carried her burden of proving purposeful discrimination by the

prosecutor.   See Buck, 247 Va. at 451, 443 S.E.2d at 415.

                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" . . . .
           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.

Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,

715 (1994) (citations omitted).    Thus, "[o]n appeal, the trial

court's findings will be reversed only if they are clearly

erroneous."     Buck, 247 Va. at 451, 443 S.E.2d at 415.

     "[T]he issue is the facial validity of the prosecutor's

explanation."     Hernandez v. New York, 500 U.S. 352, 360 (1991)

(plurality opinion).     See Goodson v. Commonwealth, 22 Va. App.

61, 81, 467 S.E.2d 848, 858 (1996) (holding that "[a]ge,

education, employment, and demeanor during voir dire may

constitute race-neutral explanations for a peremptory strike").

It is not necessary that the prosecutor's explanation be


                                 - 3 -
persuasive, or even plausible.     See Purkett v. Elem, 514 U.S.

765, 767-68 (1995).

     The Commonwealth here offered a race-neutral reason for the

peremptory strike.    As explained by the prosecutor, the basis

for the strike was the potential that during the trial something

might spark some recollection by Juror Knox of a prior

relationship with appellant.    Such a circumstance could have

posed a problem during the trial.       And appellant failed to meet

her burden of showing that the prosecutor's explanation was

pretextual. 1   Accordingly, the trial court did not err when it

denied appellant's Batson motion.

                                  II.

                          JURY INSTRUCTIONS

     The trial court instructed the jury on both first and

second degree murder.    The court refused, however, to grant

appellant's jury instructions on heat of passion and the

lesser-included offense of voluntary manslaughter.      We need not

address whether the trial court erred by rejecting the proffered

instructions, for if any error occurred, it was harmless.

     In Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 504

(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), we addressed

the issue of harmless error in the context of a trial court's


     1
       Appellant pointed out that the Commonwealth did not strike
a white female employed by the Chesapeake School System. The
record contains no evidence, however, indicating that this juror
potentially knew appellant.

                                 - 4 -
refusal to instruct a jury on voluntary manslaughter where the

jury ultimately convicted the defendant of first degree murder.

We concluded that

             where the reviewing court is able to
             determine that the trial court's error in
             failing to instruct the jury could not have
             affected the verdict, that error is
             harmless. Such a determination can be made
             where it is evident from the verdict that
             the jury would have necessarily rejected the
             lesser-included offense on which it was not
             instructed.

Id. at 276, 476 S.E.2d at 507.

     In finding that the trial court's failure to instruct the

jury on voluntary manslaughter constituted harmless error, we

explained:

             In convicting appellant of first degree
             murder, the jury rejected the
             lesser-included offense of second degree
             murder. In so doing, the jury found beyond
             a reasonable doubt that appellant acted not
             only maliciously, but also willfully,
             deliberately, and premeditatedly. Homicide
             committed pursuant to a preconceived plan is
             not voluntary manslaughter; premeditation
             and reasonable provocation cannot co-exist.
             The verdict reached by the jury here compels
             the conclusion that it would never have
             reached a voluntary manslaughter verdict.
             Therefore, we conclude that the jury in this
             case, by rejecting the lesser-included
             offense of second degree murder, necessarily
             rejected the factual basis upon which it
             might have rendered a verdict on the
             lesser-included offense of voluntary
             manslaughter.

Id. at 277-78, 476 S.E.2d at 508 (citations and footnotes

omitted).


                                 - 5 -
     The jury's finding that appellant was guilty of first

degree murder compels a conclusion that it would not have

convicted her of voluntary manslaughter even if instructed on

that lesser offense.    Accordingly, any failure to instruct on

heat of passion and voluntary manslaughter was harmless.

                                 III.

                      SUFFICIENCY OF THE EVIDENCE

     Although appellant concedes she was responsible for the

death of thirty-month-old Benita Godsey, she contends the

evidence was insufficient to prove that she acted with

premeditation.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).    "The credibility of the witnesses, the

weight accorded testimony, and the inferences to be drawn from

proven facts are matters to be determined by the fact finder."

Stover v. Commonwealth, 31 Va. App. 225, 228, 522 S.E.2d 397,

398 (1999).   The role of this Court is not to "substitute its

judgment for that of the trier of fact."     Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

"The jury's verdict will not be disturbed on appeal unless it is

plainly wrong or without evidence to support it."        Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

                                 - 6 -
     Thomas Boone testified that he lived with appellant and his

daughter Benita in Room 122 of the London Boulevard Motel.

Appellant had been living with Boone for one and a half years.

She was Benita's primary caregiver and the only mother Benita

had ever known.

     On January 13, 1998, Boone was scheduled to work at

5:00 p.m., and appellant was going to have to stay home with

Benita while he was away.   Benita had been fussy all day, and

appellant and Boone argued heatedly that afternoon because

appellant wanted to go out with a friend that night.    Boone

testified, however, that appellant subsequently calmed down and

that appellant and Benita were watching television together when

he left for work.

     Bernard Robertson, who worked at the motel, testified that

around 7:00 p.m. he heard the "[s]ound of beating with a belt"

and the cries of a baby emanating from Room 122.    Between 9:00

and 9:30 p.m., appellant exited the room and asked Robertson for

thirty-five cents to make a telephone call.    She then proceeded

to a nearby payphone.   Robertson described appellant as upset,

but not crying.

     Paramedics John Wannamaker and Brian Bock responded to

appellant's residence at 9:45 p.m.     They found Benita lying in

her crib unconscious and not breathing.    Wannamaker described

appellant as unemotional and testified that she pointed to

Benita saying "'There's the child.     I'm not sure what's wrong

                               - 7 -
with it.'"   Bock testified that appellant was initially

unresponsive when he asked her about Benita's medical problems

and about some medication that was in the room.   But she became

hysterical and started crying "'My baby; my baby,'" when he

asked her what had happened to Benita.

     The paramedics were unable to resuscitate Benita, and she

was pronounced dead shortly after arriving at the hospital.

     Assistant Chief Medical Examiner Dr. Elizabeth Kinnison

testified that Benita died from acute head injuries.   She stated

that a "tremendous force" would have been required to inflict

the fatal injuries and that "something happened more than once."

Dr. Kinnison opined that Benita's fatal injuries could have been

caused by the child's head striking a dresser or a crib.

     Benita had bruising around her eyelids, four bruises on her

chest, eight to ten bruises on her back, eight bruises on one of

her arms, and fifteen bruises on her left leg.    She also had

bruises on her scalp and a subdural hemorrhage.   Dr. Kinnison

testified that these injuries had been inflicted at or shortly

before the time of death.   Most of the injuries, including the

fatal injuries, were inconsistent with having been caused by

Benita falling down from a standing position.    Dr. Kinnison

further testified that merely striking the child with an open

hand would not have caused the fatal injuries.

     At the time the fatal injuries were inflicted, Benita was

wearing a cast that wrapped around her waist and encased her

                               - 8 -
right leg.    The cast was described as "dirty, foul-smelling" and

soaked in urine.    Bock said Benita was unclean and she was

suffering from skin ulcers where the edge of the cast rubbed

against her skin.

        Appellant provided two statements to the police regarding

Benita's death.    On January 14, 1998, appellant told Detective

Bond that she had put Benita to bed in her crib at 8:00 p.m. the

night before.    She said she heard Benita stir around 8:30 p.m.,

but when she checked on the child at 9:00 p.m., Benita was

unresponsive.    Appellant advised Bond that she then called the

police.

        On January 20, 1998, appellant told Bond that Benita was

whining after she put the child to bed so she hit Benita in the

face with her hand.    Benita continued crying so appellant picked

her up and shook her.    Appellant told Bond that she hit Benita

again on the head with her hand and then threw Benita into the

crib.    Shortly thereafter, she noticed that Benita was

unresponsive and called an ambulance.    Appellant denied striking

Benita with any object, although she subsequently admitted that

Benita's head struck the dresser and that the child's head could

have struck the crib rail and the metal mattress frame on an

adjacent bed.

                  To prove premeditated murder, the
             Commonwealth must establish: "(1) a
             killing; (2) a reasoning process antecedent
             to the act of killing, resulting in the
             formation of a specific intent to kill; and

                                 - 9 -
           (3) the performance of that act with
           malicious intent." Premeditation requires
           the formation of the specific intent to
           kill.

Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718,

721 (1992) (citation omitted).   "The question of premeditation

is a question to be determined by the fact-finder."     Bowling v.

Commonwealth, 12 Va. App. 166, 173, 403 S.E.2d 375, 379 (1991).

     "Premeditation need not exist for any specific length of

time," Chandler v. Commonwealth, 249 Va. 270, 280, 455 S.E.2d

219, 225 (1995), and may be proven by circumstantial evidence,

see Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98

(1989).   In determining whether a defendant acted with

premeditation

           the jury may properly consider the brutality
           of the attack, and whether more than one
           blow was struck; the disparity in size and
           strength between the defendant and the
           victim; . . . and the defendant's lack of
           remorse and efforts to avoid detection.
           While motive is not an essential element of
           the crime, it is relevant and often most
           persuasive upon the question of the actor's
           intent.

Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 892

(1982) (citations omitted).

     We found sufficient evidence of premeditation under similar

facts in Archie, 14 Va. App. 684, 420 S.E.2d 718.     In that case,

the defendant was convicted of beating to death her boyfriend's

three-year-old daughter.   Citing to Epperly, we noted the

evidence proved that the child-victim had sustained numerous

                              - 10 -
injuries at the hands of the defendant, the defendant had lied

about how the victim sustained her injuries, and the defendant

had shown no remorse over the child's death.      See Archie, 14 Va.

App. at 689-90, 420 S.E.2d at 721.      There was also evidence

tending to establish a motive for the defendant to harm the

victim.   See id. at 690-91, 420 S.E.2d at 722; cf. Rhodes, 238

Va. at 487, 384 S.E.2d at 99 (finding insufficient evidence of

premeditation where the defendant killed her three-month-old

daughter with multiple blows, but where the defendant had

consistently expressed remorse over the child's death, she had

not attempted to avoid detection or blame, and there was no

evidence of motive).

     The evidence in the present case was sufficient to allow

the jury to infer beyond a reasonable doubt that appellant acted

with premeditation.    Appellant killed thirty-month-old Benita,

who at the time was wearing a cast for a broken leg, with

numerous blows administered with "tremendous force."     Although

appellant subsequently expressed remorse over Benita's death,

when the paramedics first encountered appellant she was

unemotional and referred to the child as "it."     Appellant's

failure to mention in her January 14 statement to Bond that she

had struck Benita on the night of the child's death evidenced a

desire to avoid responsibility for Benita's death.     Finally,

appellant's anger about having to stay home with Benita that

night instead of going out with a friend, and her desire to

                               - 11 -
quiet the child tended to prove the existence of a motive to

harm Benita.

     For the reasons stated above, the judgment of the trial

court is affirmed.

                                                       Affirmed.




                             - 12 -
