                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Alston
Argued at Richmond, Virginia


DONTA LAMARK FOSTER
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0755-08-2                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                   OCTOBER 6, 2009
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                                 W. Allan Sharrett, Judge

                 Barbara G. Mason (Law Offices of Barbara G. Mason, on briefs), for
                 appellant.

                 Rosemary V. Bourne, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Donta Lamark Foster (appellant) appeals from his convictions of second-degree murder

and use of a firearm in the commission of a felony. On appeal, he contends the trial court erred

when it refused to disqualify a Caucasian juror based on the juror’s demeanor during jury

selection. Appellant further contends that the trial court erred when it refused to disqualify the

same juror based on facts elicited by appellant’s counsel after the juror was reseated. We hold

the trial court’s decision to refuse to disqualify the juror on either account was not clearly

erroneous. Thus, we affirm appellant’s convictions.

                                        I. BACKGROUND

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of this appeal. The

issue on appeal concerns only the jury selection process of appellant’s trial.

       During the voir dire portion of jury selection, the Commonwealth made several motions

to remove jurors for cause, which the trial court denied. Appellant made no motion to remove

any juror for cause. At the completion of voir dire, the parties exercised their peremptory strikes.

The record does not reflect the racial makeup of the panel, but appellant used all of his strikes on

Caucasian jurors. The Commonwealth objected, arguing that appellant’s strikes were improperly

based on race, and that under Batson v. Kentucky, 476 U.S. 79 (1986), appellant was required to

provide race-neutral reasons for the strikes. Appellant’s counsel responded that he struck all four

jurors, Juror Haffey, Juror Spence, Juror Smith, and Juror Newsome based on their demeanor.

Appellant’s counsel also struck Juror Newsome because she knew the prosecutor.

       As to Juror Haffey, counsel’s reasoning was that, “her demeanor as I observed her

making long stares at [appellant] caused some concerns. And, for that reason I struck her.”

Appellant’s counsel further explained that, “she was staring at him, your Honor. I can’t go any

further with that. That’s what I observed.” The trial court denied the Commonwealth’s Batson

challenge to Juror Haffey, noting that

               it’s hard to pin down, but in particular she was staring at the
               defendant. The court will note for the record that it noted Juror
               Haffey’s demeanor[,] but I didn’t know where she was staring, but
               I did notice that she was intense, and believes the defense has met
               its burden of giving a race neutral reason for the strike.

       With regard to Juror Spence, appellant’s counsel stated only, “from the demeanor of this

particular juror counsel did not consider his race but was of the opinion that there were other

jurors more appropriate for this case.” As to Juror Smith, counsel stated, “for the same reasons

that I’ve stated for the others.” The trial court sustained the Commonwealth’s Batson challenge




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to Juror Spence and Juror Smith. “Jurors Smith and Spence were not questioned by either

counsel or by the court and there was nothing unusual about their demeanor.”

        Finally, the trial court considered appellant’s strike of Juror Newsome. Counsel

explained, “the reason for that strike is that she represented to the court that she knows [the

prosecutor] and was a friend of [the prosecutor].” The trial court noted that at least two other

jurors indicated they knew the prosecutor and again, asked counsel for a race-neutral reason for

the strike. Appellant’s counsel responded, “I just thought it would be appropriate and was of the

opinion that the other jurors would be more acceptable for this case.” Finding this was not a

race-neutral explanation, the trial court sustained the Batson challenge as to Juror Newsome.

        After the court announced its decision to reseat Juror Spence, Juror Smith, and Juror

Newsome, appellant’s counsel stated, “Your Honor, before we move forward, [appellant] has

shared with me that he has seen Spence in school and attended the same school as he attended.”

The trial court responded that it had made its ruling, the three jurors would be reseated, and they

could not be struck again.

        The jury returned a guilty verdict on both charges. This appeal followed.

                                          II. ANALYSIS

        Appellant contends the trial court erred when it sustained the Commonwealth’s Batson

challenge as to Juror Spence. Appellant argues that he provided an adequate race-neutral reason

for the strike.

        The principle behind Batson and its progeny is well established. “Competence to serve

as a juror ultimately depends on an assessment of individual qualifications and ability impartially

to consider evidence presented at a trial.” Batson, 476 U.S. at 87. “A person’s race simply ‘is

unrelated to his fitness as a juror.’” Id. (quoting Thiel v. S. Pacific Co., 328 U.S. 217, 227

(1946) (Frankfurter, J., dissenting)).

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                         When a party alleges that peremptory strikes were racially
                 based in violation of Batson, 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).

                 The defendant must make a prima facie showing that the
                 prosecutor has exercised peremptory strikes on the basis of race. If
                 this showing is made, the burden shifts to the prosecutor to
                 articulate a racially neutral explanation for striking the jurors in
                 question. If the court determines that the proffered reasons are
                 race-neutral, the defendant should be afforded an opportunity to
                 show why the reasons, even though facially race-neutral, are
                 merely pretextual and that the challenged strikes were based on
                 race. But, ultimately, the trial court must determine whether the
                 defendant has carried his burden of proving purposeful
                 discrimination.

James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994) (citations omitted).

       The trial court’s findings regarding a party’s purpose and intent for making peremptory

strikes during the jury selection process should be given great deference. See Hopson v.

Commonwealth, 52 Va. App. 144, 151, 662 S.E.2d 88, 92 (2008). “This deference stems from

our recognition that ‘a trial judge who personally observes a juror, including the juror’s tenor,

tone, and general demeanor, is in a better position than an appellate court to determine whether a

particular juror should be stricken.’” Id. (quoting Teleguz v. Commonwealth, 273 Va. 458, 475,

643 S.E.2d 708, 719 (2007)). “On appeal, this finding can be reversed only if it is clearly

erroneous.” Chandler, 249 Va. at 277, 455 S.E.2d at 223; see also James, 247 Va. at 462, 442

S.E.2d at 398.

       After the Commonwealth alleged that appellant’s peremptory strikes were racially based

and the trial court determined that the Commonwealth had made its prima facie case, the court

inquired as to appellant’s proffered reasons for the strikes. In reference to Juror Spence,


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appellant’s counsel responded, “from the demeanor of this particular juror counsel did not

consider his race but was of the opinion that there were other jurors more appropriate for this

case.” The trial judge found there was nothing about the juror’s demeanor either articulated by

counsel or demonstrated to the court that qualified as a race-neutral justification for the strike.

Our jurisprudence instructs that it is the trial judge who personally observes a juror and is in a

better position than an appellate court to determine whether a particular juror should be stricken

and that this determination should not be disturbed unless it is clearly erroneous.

       There is nothing in the record before this Court to suggest the trial court’s decision was

clearly erroneous. Appellant’s counsel did not articulate anything about Juror Spence’s

demeanor that justified striking him. Unlike the response to the challenge of his strike of Juror

Haffey, appellant’s counsel did not specify an aspect of Spence’s demeanor that caused concern.

There was no indication that Spence was staring at appellant, making faces, or failing to pay

attention. Under these circumstances, the trial court could clearly find that appellant’s

reasoning—the demeanor of these particular individuals—was merely a pretext to strike the

Caucasian members of the panel. Thus, the trial court’s decision to sustain the Batson challenge

was not clearly erroneous.

       Appellant also contends that the trial court erred when it refused to disqualify Juror

Spence based on appellant’s statement that he knew Spence from school. 1 This statement was

made after the trial court sustained the Commonwealth’s Batson motion. “Once the trial court



       1
          In his brief, appellant argued that the trial court should have considered this as a motion
to strike for cause. Because appellant never raised this issue at trial, Rule 5A:18 bars our
consideration of the question on appeal. Under Rule 5A:18, “a specific argument must be made
to the trial court at the appropriate time, or the allegation of error will not be considered on
appeal.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en
banc). Appellant did not make such an argument, and he did not argue that this Court should
invoke the good cause or ends-of-justice exceptions to Rule 5A:18. Accordingly, the Court does
not reach the merits of appellant’s argument that the juror should have been struck for cause.
                                                   -5-
determines that the basis for a peremptory strike is unconstitutional, any other reasons proffered

at the same time, or subsequently, cannot erase the discriminatory motivation underlying the

original challenge.” Coleman v. Hogan, 254 Va. 64, 68, 486 S.E.2d 548, 550 (1997). “[W]hen

the trial court chooses to reseat the improperly stricken juror, the striking party may not use a

peremptory strike to remove that juror from the panel a second time.” Id. at 69, 486 S.E.2d at

551. The trial court did not accept appellant’s proffered reasons for the strike but instead found

that the basis for the strike did not satisfy the requirements of Batson. The trial court then chose

to reseat Juror Spence. The trial court correctly noted that after sustaining the Commonwealth’s

original Batson challenge, it could not consider appellant’s additional statements as to why this

juror should be struck from the panel. Accordingly, the trial court’s decision not to address

appellant’s additional concerns was not clearly erroneous.

                                        III. CONCLUSION

       For these reasons, we hold the trial court’s decision to sustain the Commonwealth’s

Batson challenge as to Juror Spence was not clearly erroneous. We further hold that appellant’s

argument to disqualify this juror for cause cannot be considered because appellant failed to make

or preserve an objection in the trial court as required by Rule 5A:18. Finally, after sustaining the

Commonwealth’s Batson challenge to the striking of Juror Spence, the trial court could not

consider appellant’s additional statements as to why this same juror should be struck from the

panel. Thus, the court’s decision in this regard was not clearly erroneous. Accordingly, we

affirm appellant’s convictions.

                                                                                           Affirmed.




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