                    COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


JEROME M. GORE, S/K/A
 JEROME MAURICE GORE, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 1578-96-1                 JUDGE RICHARD S. BRAY
                                            OCTOBER 21, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                      Johnny E. Morrison, Judge
           Michael Rosenberg for appellant.

           Monica S. McElyea, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



      Jerome M. Gore (defendant) was convicted and sentenced by a

jury for robbery, verdicts later approved by appropriate orders

of the trial court.    Defendant complains on appeal that the trial

court erroneously overruled his objection to the Commonwealth's

unconstitutional exercise of peremptory challenges to remove

black venirepersons.   We agree and reverse the conviction.

      The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the issue on appeal.

      In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court
reaffirmed a defendant's "right to be tried by a jury whose

members are selected pursuant to nondiscriminatory criteria" and

condemned the peremptory exclusion of potential jurors "on
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
account of race" as violative of the Equal Protection Clause.

Id. at 85-86.   Subsequently, the Batson doctrine was extended to

civil litigation, protecting both litigants and venirepersons

alike from either race, Georgia v. McCollum, 505 U.S. 42 (1992);

Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991); see

generally Powers v. Ohio, 499 U.S. 400 (1991), or, gender-based

discrimination in jury selection.    J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127 (1994); Riley v. Commonwealth, 21 Va. App.

330, 464 S.E.2d 508 (1995).
     Batson and its progeny have established the protocols which

guide a trial court's assessment of an allegedly discriminatory

peremptory challenge.
          The opponent of a peremptory challenge must
          establish a prima facie case of
          discrimination (step 1); once a prima facie
          case is made, the burden of production shifts
          to the proponent of the strike to produce a
          race-neutral or . . . gender-neutral
          explanation (step 2); if a [facially] neutral
          explanation is proffered, the trial court
          must then decide whether the opponent of the
          strike has met its burden and proved
          purposeful discrimination (step 3). 1

Riley, 21 Va. App. at 333, 464 S.E.2d at 509; see also James v.

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

"A neutral explanation . . . means an explanation based on

     1
      Although the "actual sequence of events at trial"
oftentimes "merges the separate procedural steps" in a Batson
challenge, such "[c]onsolidation . . . does not invalidate the
process as long as . . . [it] does not adversely impact the
rights of any party." James v. Commonwealth, 247 Va. 459, 462,
442 S.E.2d 396, 398 (1994).




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something other than the race of the juror."     Hernandez v. New

York, 500 U.S. 352, 360 (1991).

     If a challenged party undertakes to explain a disputed

strike before the trial court finds the requisite prima facie

case, step 1 is rendered moot.     Barksdale v. Commonwealth, 17 Va.

App. 456, 459, 438 S.E.2d 761, 763 (1993) (en banc) (citation

omitted).    At step 2,
            "a court must determine whether, assuming the
            proffered reasons for the peremptory
            challenges are true, the challenges violate
            the Equal Protection Clause as a matter of
            law." If not, the "decisive question" for
            the trial judge . . . becomes "whether
            counsel's race-neutral explanation for a
            peremptory challenge should be believed,"
            and, "once that has been settled, there seems
            nothing left to review."

Id. at 459-60, 438 S.E.2d at 763 (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,' which should be disturbed

only if 'clearly erroneous.'"     Id. at 460, 438 S.E.2d at 763

(citation omitted).   However, if "discriminatory intent is

inherent in the explanation," the peremptory strikes were

unconstitutional as a matter of law and the "trial court's

finding of 'facial neutrality' is not given deference on appeal."
 Riley, 21 Va. App. at 335, 464 S.E.2d at 510.

     Here, the record discloses that the prosecutor exhausted

three of four peremptory strikes on black venirepersons,

prompting defendant, a black man, to raise a Batson objection.



                                  3
In response, the prosecutor initially "disagree[d] with [defense]

counsel's assertions that he made a prima facie case," but,

nevertheless, explained the disputed strikes without awaiting a

ruling by the trial court.   After first attributing the

challenges to "lack of attention, . . . lack of interest"

exhibited by the targeted venirepersons during voir dire, the

prosecutor added that he "was . . . mindful of trying to reach a

split" which would result in "a fairly even, racially balanced

jury, . . . assum[ing] . . . that defense was not going to strike

any black Americans, and, of course, they did."
     Under such circumstances, the prosecutor waived the

necessity for defendant to establish a prima facie case of

discrimination at step 1 of the Batson analysis.    The explanation

which attended step 2 clearly and impermissibly attributed the

strikes in issue to race, "trying to reach a split" or "racially

balanced" jury.   The prosecutor's reliance upon other facially

race-neutral considerations "does not overcome the constitutional

infirmity" inherent in the racially tainted challenges to the

petit jury venire.   Id. at 336, 464 S.E.2d at 510. 2

     Accordingly, we must reverse the conviction and remand the

case for a new trial if the Commonwealth be so advised.

     2
      While the Commonwealth's contention that the prosecutor was
merely "indicating that he would have been willing to forego his
misgivings about some of the jurors he struck if removing them
would have taken too many blacks off the jury" may be true and
would explain the trial court's ruling, it is without support in
the record before us.




                                 4
    Reversed and remanded.




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