                        COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia


SHAJUAN LEE McRAE
                                           MEMORANDUM OPINION * BY
v.   Record No. 0488-00-2                 JUDGE SAM W. COLEMAN III
                                                JULY 3, 2001
COMMONWEALTH OF VIRGINIA


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

          John B. Boatwright, III (Boatwright & Linka,
          on brief), for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Shajuan Lee McRae was convicted of possession of a firearm

while in possession of cocaine.    On appeal, McRae contends the

trial court erred by:    (1) striking three prospective jurors for

cause; and (2) concluding that the prosecution did not violate

Batson v. Kentucky, 476 U.S. 79 (1986), by using three of its four

peremptory challenges to remove African-Americans from the jury.

Finding no reversible error, we affirm.

                         THE STRIKES FOR CAUSE

     As part of jury voir dire, the following exchange took place:

          THE COURT: Now, do any of you know of any
          reason, whatsoever, why you could not hear

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and adjudge the evidence fairly? This case
should be concluded today, so it will not be
a trial where you will be asked to come back
tomorrow. But do you know of any reason
whatsoever, why you could not hear and
adjudge the evidence fairly? Any moral,
religious reasons, any personal convictions,
any reasons, whatsoever?

THE JURORS:   (Hands raised).

THE COURT:    Ms. Chambliss?

JUROR CHAMBLISS: I have a nephew in jail.
I can't sit on it.

THE COURT: Ms. Chambliss, I'm going to
excuse you. Why don't you have a seat in
the courtroom. Ms. Robinson.

JUROR ROBINSON:   I have a nephew, too.

THE COURT: And you feel you could not sit
on this jury?

JUROR ROBINSON:   Yes.

THE COURT: All right. Ms. Robinson, why
don't you have a seat in the courtroom.

NOTE: At this time, Juror Chambliss and
Juror Robinson step down from the jury box
and have a seat in the courtroom.

THE COURT:    Ms. Otey, you said you know Mr.
Solomon?

JUROR OTEY:   Yes.

THE COURT: Counsel, would you like to
question her behind the bench or do you have
any objection to the Court excusing her?

MR. BOATWRIGHT:   Yes.

THE COURT: All right. Let's question her
behind [the bench]. Ms. Otey, why don't you
come behind the bench.




                      - 2 -
          NOTE: At this time, a bench conference is
          held outside the hearing of the jury as
          follows:

BENCH CONFERENCE HELD OUT
OF THE HEARING OF THE JURY

          THE COURT: Ms. Otey, why don't you stand
          right here so the court reporter can see
          you. Tell us how you know Mr. Solomon.

          JUROR OTEY: I know Mr. Solomon by him,
          like, coming to my house. I haven't seen
          him in a long time. I know him by him
          coming to my house, because his brother
          live[s] at my house.

          THE COURT:    His brother lives with you?

          JUROR OTEY:   Uh-huh.

          THE COURT:    His brother is a tenant in your
          house?

          JUROR OTEY:   Uh-huh.

          THE COURT:    Why don't you have a seat.

          MR. BOATWRIGHT:    I object to the Court
          excusing her.

          THE COURT: Have a seat in the jury box.

          NOTE: At this time, Juror Otey returns to
          the jury box.

          MR. BOATWRIGHT: She said nothing that
          indicated she has any bias in favor of the
          witness. She just says she knows the man.
          She hasn't seen him in a long time.

          THE COURT: She also said his brother is her
          tenant, lives with her.

          MR. BOATWRIGHT:    I understand that.

          THE COURT: We'll note your objection to the
          Court's excusing her on the record. Is
          there any other reason?



                                  - 3 -
          MR. BOATWRIGHT:      I move for a mistrial on
          that basis.

          THE COURT:    Request for mistrial denied.

          MR. BOATWRIGHT: Will this be a time to take
          up my objection to the Court excusing the
          two other jurors?

          THE COURT:    Yes.

          MR. BOATWRIGHT: They just simply don't want
          to be here. That is not enough to excuse
          them for cause. I understand how people
          don't want to be here and don't want to sit
          in judgment, but unless they say they
          absolutely can't follow the Court's
          instructions, which they did not say, it is
          not a basis to strike them for cause, and I
          would move the Court to restore them to the
          panel.

          THE COURT: The request is denied.      Your
          exception is noted for the record.

The trial judge then excused juror Otey, after having excused

jurors Chambliss and Robinson.

     McRae contends on appeal the trial judge abused her

discretion by excluding the three jurors who showed no grounds

for disqualification for cause, thereby depriving him of his

right to an impartial jury.

     An accused is constitutionally guaranteed the right to trial

by "an impartial jury."   U.S. Const. amends. VI, XIV; Va. Const.

art. I § 8; see Code § 8.01-358; Rule 3A:14.     "Trial courts, as

the guardians of this fundamental right, have the duty to procure

an impartial jury."    Griffin v. Commonwealth, 19 Va. App. 619,

621, 454 S.E.2d 363, 364 (1995).



                                  - 4 -
           Trial courts primarily determine whether a
           venireperson is free from partiality and
           prejudice through meaningful voir dire.
           During voir dire, the trial judge must probe
           the conscience and mental attitude of the
           prospective jurors to ensure impartiality.
           It is not uncommon to discover during voir
           dire that prospective jurors have
           preconceived notions, opinions, or
           misconceptions about the criminal justice
           system, criminal trials and procedure, or
           about the particular case. Even though a
           prospective juror may hold preconceived
           views, opinions, or misconceptions, the test
           of impartiality is whether the venireperson
           can lay aside the preconceived views and
           render a verdict based solely on the law and
           evidence presented at trial.

Id. (citations omitted) (emphases added).

     "[W]e review a trial court's decision whether to strike a

prospective juror for cause for an abuse of discretion and that

ruling will not be disturbed on appeal unless it appears from

the record that the trial court's action constitutes manifest

error."   Cressell v. Commonwealth, 32 Va. App. 744, 755, 531

S.E.2d 1, 6 (2000).   "In determining whether a prospective juror

should have been excluded for cause, we review the entire voir

dire, rather than a single question and answer."   Barnabei v.

Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996)

(citation omitted).   "'The standard to be applied by the trial

court in determining whether to retain a venireman on the jury

panel is whether his answers during voir dire examination

indicate to the court something that would prevent or

substantially impair the performance of his duties as a juror in


                               - 5 -
accordance with his instructions and his oath.'"    Moten v.

Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251 (1992)

(citations omitted).   The Supreme Court and this Court have

repeatedly emphasized that when reasonable doubt exists whether a

juror possesses the ability to render a fair and impartial service

that doubt must be resolved in favor of the accused.   See Breeden

v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).

     From our review of Virginia's appellate decisions involving

challenges to jurors for cause in non-capital cases, the issue

heretofore has been whether a court improperly seated a biased

juror, not whether a court erroneously or improperly excluded an

unbiased or qualified juror. 1   Here, however, we are asked to


     1
       In capital cases, because constitutional considerations
require that the death penalty be administered with fundamental
fairness and due process of law, appellate courts necessarily
must review whether trial courts err by removing for cause
prospective jurors who are inalterably opposed to the death
penalty. See Wainwright v. Witt, 469 U.S. 412, 424 & n.5 (1985)
(refining Witherspoon procedure for excluding jurors whose view
regarding death penalty affects their ability to follow the law
and instructions); Witherspoon v. Illinois, 391 U.S. 510, 522
(1968) (holding that imposition of death penalty by jury from
which jurors were excluded "simply because they voiced general
objections to the death penalty" violated right to impartial
jury provided to defendant under the 6th and 14th amendments).
     For examples of capital cases that review the propriety of
having struck a qualified juror, see Adams v. Texas, 448 U.S.
38, 45-50 (1980) (erroneous exclusion of juror in capital murder
trial violated 6th and 14th Amendments; states may not execute
sentence of death where even one putative juror has been
excluded merely because of general objection to capital
punishment); Davis v. Georgia, 429 U.S. 122, 123 (1976) (holding
that venireperson is properly excluded only if he or she is
"'irrevocably committed'" against death penalty regardless of
facts and circumstances that might emerge at trial; if a
venireperson is excluded but not "so committed" against the

                                 - 6 -
decide the novel question of whether a trial court abused its

discretion by removing an otherwise qualified juror in a

non-capital case because the court erroneously either determined

that the juror was biased or arbitrarily excluded a qualified

juror.

     McRae asserts that the trial court abused its discretion by

excluding the three jurors for cause where no bias was

demonstrated and the trial judge granted the challenge for cause

merely to exclude a reluctant juror or was being overly cautious

by excluding an otherwise qualified juror.   Although the record

in the present case may fail to support the trial judge's

decision to sua sponte strike for cause venirepersons Chambliss,

Robinson or Otey, the only question that we may properly

consider as reversible error is whether the trial court abused

its discretion in seating an unqualified juror, not whether an

otherwise qualified juror was excluded from the jury.




death penalty, "any subsequently imposed death penalty cannot
stand"); State v. Stallings, 413 S.E.2d 710, 712 (Ga. 1992)
(reversing and remanding for resentencing where the trial court
erroneously excused a juror who indicated she had some qualms
about imposing the death penalty and was leaning toward a life
sentence; explaining that further voir dire might have
established juror's disqualification by revealing a view on
capital punishment that would prevent or impair her from
performing her duty and acting in accordance with the
instructions and her oath); Durrough v. State, 620 S.W.2d 134,
142 (Tex. Crim. App. 1981) (reversing and remanding where record
failed to show excluded juror was so irrevocably opposed to the
death penalty she could not follow the law or obey the court's
instructions).

                              - 7 -
     "A defendant is entitled to fair and impartial jurors, not

jurors whom he hopes will be favorable towards his position.       A

defendant's rights go to those who serve, not to those who are

excused."     State v. Mendoza, 596 N.W.2d 736, 749 (Wis. 1999).

The erroneous or improper exclusion for cause by the trial court

of a venireperson does not violate a defendant's rights in a

non-capital case under the United States Constitution as long as

the jury that hears the case is impartial.     See United States v.

Gonzalez-Balderas, 11 F.3d 1218, 1221-22 (5th Cir. 1994)

(holding that "improper removal of a member of the venire is not

grounds for reversal in a non-capital case unless the jurors who

actually sat were not impartial within the meaning of the sixth

amendment"); Shettel v. United States, 113 F.2d 34, 36 (D.C.

Cir. 1940) (holding that the Constitution guarantees trial by an

impartial jury and "appellant was not in any way prejudiced by

the exclusion of these [qualified] persons" from the jury);

Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998)

(holding that "a defendant has no right that any particular

individual serve on the jury.    The defendant's only substantial

right is that the jurors who do serve be qualified.    The

defendant's rights go to those who serve, not to those who are

excused.").    Because the protections afforded under Virginia's

Constitution "are co-extensive with those in the United States

Constitution," Bennefield v. Commonwealth, 21 Va. App. 729,

739-40, 467 S.E.2d 306, 311 (1996), a trial court's exclusion

                                 - 8 -
for cause of an otherwise qualified venireperson likewise does

not affect one's right under Virginia's Constitution in a

non-capital case so long as the seated jury was fair and

impartial.

     Although McRae contends the trial court's actions deprived

him "of his right to an impartial jury," he does not complain

that the jury that heard his case was biased or not impartial.

He puts forth no evidence or argument that the jury selected was

not impartial.    Therefore, while the trial judge may have acted

precipitously by excluding for cause one or more of the

prospective jurors, nothing in the record suggests that the jury

selected was not impartial or not qualified.     Accordingly, the

trial judge's excluding the jurors was not reversible error.

                         THE BATSON CHALLENGES

     After the court seated twenty potential jurors free from

exception, the parties exercised their peremptory strikes, after

which appellant's attorney made the following motion:

             MR. BOATWRIGHT: Judge, pursuant to Batson
             v. Kentucky, I'd ask the Court to require
             the Commonwealth to provide race neutral
             reasons for exclusion of jurors presently in
             position No. 7, Lauretta Harris, a black
             female; No. 20, Eddie Miles, a black male;
             and Kenneth Mosby, Juror No. 5, also a black
             male.
                   Mr. Mosby was the only one of those
             people who gave any kind of response to any
             of the questions asked by anybody. He said,
             A, that he had been charged with something,
             and, B, that he had previously served on a
             civil jury. The other two, Ms. Harris and


                                 - 9 -
          Mr. Miles, gave no responses, during voir
          dire or otherwise.

     Before the trial judge could respond, the prosecutor

volunteered race-neutral reasons for striking the three jurors.

After being provided race-neutral explanations, the trial judge

ruled as follows:

               The Court will rule on the motion as
          follows. First of all, the Court does not
          believe a prima facie case was established
          under Batson. A prima facie case is
          established by exclusion plus other facts
          and circumstances. Even if a prima facie
          case has been established, the party making
          the strikes has stated race neutral reasons
          for the strikes, so the motion will be
          denied.

     A prospective juror may not be peremptorily removed from a

jury panel solely on the basis of race.   Batson, 476 U.S. at 89.

In order to properly raise a challenge to a Batson violation

          [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).

     To establish a prima facie case of purposeful

discrimination under Batson,



                               - 10 -
          "the defendant first must show that he is a
          member of a cognizable racial group . . .
          and that the prosecutor has exercised
          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).

               The defendant has the burden of
          producing a record that supports a prima
          facie case of purposeful discrimination.
          The fact that the prosecution has excluded
          African-Americans by using peremptory
          strikes does not itself establish such a
          prima facie case under Batson. A defendant
          also must identify facts and circumstances
          that raise an inference that potential
          jurors were excluded based on their race.
          The composition of the jury that ultimately
          is sworn is a relevant consideration in
          reviewing a Batson challenge.

Id. at 674, 529 S.E.2d at 780-81 (citations omitted) (emphasis

added).

     Because the record in Johnson contained details about the

jury's racial composition, the Supreme Court was able to rely,

in part, on the fact that "[t]he jury selected in this case was

comprised overwhelmingly of African-Americans" when it affirmed

the trial court's ruling that the appellant failed to establish


                             - 11 -
a prima facie case of purposeful discrimination.     Id. at 674,

529 S.E.2d at 781.

     Here, appellant failed to produce a complete record to

support a prima facie case of purposeful discrimination.

Although the record shows that the Commonwealth used three of

its four peremptory strikes to remove African-American jurors,

the record fails to show the racial composition of the venire or

of the jury sworn, which may, for all we know, have all been

African-American.    Without such information, appellant has

failed to establish a prima facie case of purposeful

discrimination.     Cf. Faison v. Hudson, 243 Va. 397, 402, 417

S.E.2d 305, 308 (1992) (finding in civil trial that plaintiff

presented sufficient facts to establish prima facie case of

discrimination where record showed that the defendant struck

from the venire the only African-American); Linsey v.

Commonwealth, 17 Va. App. 47, 50, 435 S.E.2d 153, 154 (1993)

(finding prima facie case established where stricken juror was

only African-American on the venire of twenty, where that juror

did not respond to any questions and where all five white

members of the venire who did not respond were not stricken).

     Because appellant failed to provide a record of the racial

composition of the venire or the jury and because he failed to

identify other facts and circumstances sufficient to raise an

inference that potential jurors were excluded based on race, the



                                - 12 -
trial court did not err in finding that appellant failed to

establish a prima facie case of purposeful discrimination.

     Accordingly, the judgment of the trial court is affirmed.

                                             Affirmed.




                             - 13 -
