                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia


SERGIO EMMANUEL HAYES, A/K/A
 ANDRE O. JULIAN
                                          MEMORANDUM OPINION * BY
v.        Record No. 2529-97-2         JUDGE JERE M. H. WILLIS, JR.
                                            SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge
          Sa'ad El-Amin (El-Amin & Crawford, on brief),
          for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     Sergio Emmanuel Hayes contends that the trial court erred in

denying his challenge to the Commonwealth's exercise of

peremptory strikes against four African-American veniremen.     See

Batson v. Kentucky, 476 U.S. 79 (1986).    We find no reversible

error and affirm the judgment of the trial court.

                                 I.

     Hayes, an African-American, was charged with abduction,

carjacking, and use of a firearm in the commission of a felony.

During jury selection, the Commonwealth peremptorily struck four

African-Americans from the venire, which consisted of eleven

whites and nine African-Americans.    The resulting jury consisted

of seven whites and five African-Americans.   Hayes moved the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court to review the Commonwealth's peremptory strikes

pursuant to Batson.     The trial court ruled that Hayes had

established a prima facie showing and required the Commonwealth

to explain its reasons for the strikes.    The prosecutor replied

as follows:
          [T]he Commonwealth's case is based on
          principal in the second degree, so it's sort
          of a technical legal issue, and I want to
          make sure that we have people that appear by
          their occupations, which is all I have to go
          by, appear to have some sort of educational
          background. I've gone through a process of
          elimination -- the people that I happened to
          strike seem -- do not have the educational
          background that the other people have.

        The prosecutor explained that Alpheus Patterson's employment

as a toll collector and Myra Bellamy's employment with Good

Humor/Breyers suggested that they had limited educations.      He

said that he struck Mary Griffin because her employment with a

nursing home "would not indicate a strong educational

background," and because she appeared "to be strong willed and

determined, and that, in my experience, can be dangerous either

way."    He stated that he struck Glynis Gayles because she "was

looking around the courtroom some" during voir dire, and was
unemployed "which with all else equal indicates she might not

have the same educational background."

        Hayes argued that the education level of the selected white

jurors was not apparent and could not be inferred reasonably from

their listed occupations.    He noted that the white jurors

included William Stark, an eighteen-year-old student, and



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Madeline Brown, a fifty-six-year-old historic tour guide and

housewife.

        The trial court denied Hayes' Batson motion and seated the

jury.       During sentencing deliberations, the trial court permitted

Hayes to record additional facts concerning the composition of

the jury.      In addition to Stark and Brown, the white jurors

included:      (1) Cynthia Fauber, occupation not indicated in the

record; (2) Fred Finn, a merchant; (3) Jimmy Gray, a maintenance

worker; (4) Steve Quillman, a non-destructive inspector; and (5)
                                              1
Andrew VanDerren, a sales representative.         The occupations of

the African-American jurors were not made a part of the record.

                                    II.

                                    A.

        To preserve a defendant's "right to be tried by a jury whose

members are selected pursuant to nondiscriminatory criteria," the

parties to a criminal proceeding are prohibited from using

peremptory challenges to strike prospective jurors "solely on

account of their race."       Batson, 476 U.S. at 85-86, 89.   See

Georgia v. McCollum, 505 U.S. 42, 54-55 (1992).

        When a defendant challenges the prosecution's use of

peremptory strikes on equal protection grounds, the trial court

must employ a three-step process to determine whether a Batson

        1
      Hayes asserts that Patsy Dorman, a juror, is white.
However, the record does not indicate that she is white. At
trial, defense counsel listed the names of the seven white
members of the jury.



                                   - 3 -
violation has occurred.   First, "[the] defendant must . . .

establish a prima facie showing that the peremptory strike was

made on the basis of race."   Buck v. Commonwealth, 247 Va. 449,

450-51, 443 S.E.2d 414, 415 (1994) (citation omitted).    Once the

challenger has established a prima facie showing, the proponent

of the strike must proffer a race-neutral explanation.     See id.

at 451, 443 S.E.2d at 415 (citation omitted).
               "At this [second] step of the inquiry,
          the issue is the facial validity of the
          prosecutor's explanation. Unless a
          discriminatory intent is inherent in the
          prosecutor's explanation, the reason offered
          will be deemed race neutral."

Purkett v. Elem, 514 U.S. 765, 768 (1995) (quoting Hernandez v.

New York, 500 U.S. 352, 360 (1991) (plurality opinion)).

     Finally, "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."   Chandler v. Commonwealth, 249 Va. 270, 277, 455

S.E.2d 219, 223 (1995) (citation omitted).
          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.
          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 before the court.




                               - 4 -
Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,

715 (1994) (citations omitted).

                                  B.

     The trial court's denial of Hayes' motion was not clearly

erroneous.    The trial court correctly found that Hayes had

established a prima facie showing of racial discrimination and

required the Commonwealth to explain its peremptory strikes.       The

prosecutor explained that the case involved difficult legal

concepts and that he exercised his strikes based upon the venire

members' demeanor and apparent level of education.     The trial

court concluded that the reasons offered by the prosecutor were

race-neutral and should be believed.
     Occupation, education and demeanor during voir dire are

proper race-neutral considerations in exercising peremptory

strikes.     See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402

S.E.2d 196, 205-06 (1991); Goodson v. Commonwealth, 22 Va. App.

61, 81, 467 S.E.2d 848, 858 (1996).      The prosecutor justified his

strikes of Griffin and Gayles noting, in part, their demeanor

during voir dire.     A prosecutor's use of peremptory challenges is

not so circumscribed as to require seating persons expressing a

"strong will" or displaying a penchant for idle gazing.     The

quest for a jury free from the taint of racial or gender

discrimination does not require a party to abandon subjective

criteria in exercising peremptory strikes.     Indeed, "the approach

best expressed by the familiar phrase '[t]here but for the grace




                                 - 5 -
of God go I' remains a standard and permissible justification for

peremptory strikes."     United States v. McMillon, 14 F.3d 948, 953

(4th Cir. 1994).     See also Batson, 476 U.S. at 99 n.22.

     The prosecutor explained that based on the information

available to him, the struck veniremen appeared to be less

educated than the other members of the venire.    The selected

white jurors included a mechanic, an inspector, a sales

representative, a historic tour guide, a student and a merchant.

While we cannot say that these pursuits necessarily require a

higher level of education than a position in a toll collection

booth or an ice cream facility, or that the struck jurors were

less educated than the selected jurors, neither can we say that

the prosecutor's opinion that this was the case was unreasonable.
 See Winfield v. Commonwealth, 12 Va. App. 446, 452-53, 404

S.E.2d 398, 402 (1991), aff'd en banc, 14 Va. App. 1049, 421

S.E.2d 468 (1992).

     Hayes bears the burden of showing that the prosecutor's

facially neutral "reasons were merely pretextual and that race

was the real reason for the strike."     McMillon, 14 F.3d at 953.

See Robertson, 18 Va. App. at 638, 445 S.E.2d at 715.     He

produced no evidence to that effect.     Based upon its observation

of the venire during voir dire and its view of the prosecutor's

credibility and demeanor, the trial court determined that the

prosecutor's reasons for the strikes were race-neutral and

believable.   The record supports this conclusion.




                                 - 6 -
The judgment of the trial court is affirmed.

                                               Affirmed.




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