                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia


CHRIS O. TURNER, S/K/A
 CRIST O. TURNER
                                        MEMORANDUM OPINION * BY
v.        Record No. 1642-97-2         JUDGE NELSON T. OVERTON
                                           AUGUST 11, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D'Alton, Jr., Judge
          Mary Katherine Martin, Senior Assistant
          Public Defender (John H. Cobb, Jr., Public
          Defender, on brief), for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Chris Turner (defendant) was convicted by a jury of murder

of the second degree and received forty years imprisonment.   On

appeal, he contends four black members of the venire which

eventually composed his jury were stricken by the prosecution

because of their race.   Defendant ascribes error to the trial

court's ruling that he did not make out a prima facie case of
discrimination so as to require the prosecution to identify a

race-neutral reason for the strikes.   Because we agree defendant

made out a prima facie case, we reverse and remand.

     The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedental

value, no recitation of the facts is necessary.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
       The legal issue involved is a narrow one.   In Batson v.

Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court

held purposeful discrimination based on race in selecting jurors

violates the Equal Protection Clause.   The procedure for

challenging strikes believed to violate Batson is strictly

circumscribed.
          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).

Riley v. Commonwealth, 21 Va. App. 330, 333, 464 S.E.2d 508, 509

(1995).   The trial court ruled defendant failed to complete step

one:   establishing a prima facie case of discrimination.   The

Commonwealth, therefore, was never forced to divulge a

race-neutral reason for the strikes.

       The Supreme Court of the United States has roughly

delineated what constitutes a prima facie case.
          To establish . . . a case [of purposeful
          discrimination in the selection of the jury],
          the [moving party] first must show that he is
          a member of a cognizable racial group, . . .
          and that the [opposing party] has exercised
          peremptory challenges to remove from the
          venire members of the [moving party's] race.
           Second, the [moving party] 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



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           [moving party] must show that these facts and
           any other relevant circumstances raise an
           inference that the [opposing party] used that
           practice to exclude the veniremen from
           the . . . jury on account of their race.
           This combination of factors in the empaneling
           of the . . . jury, as in the selection of the
           venire, raises the necessary inference of
           purposeful discrimination.


Batson, 476 U.S. at 96-97 (citations omitted).   Defendant clearly

met the first two parts of this inquiry:   defendant himself is

black and all four veniremen who were removed were also black.

It was the third part, however, that the trial court found

wanting.   Because the jury remained predominantly black, the

court ruled a prima facie case was not established.
     After both parties exercised their peremptory strikes, the

jury was 58% black, down from 75% before the strikes.    While the

numbers are important, "the mere inclusion of blacks on a jury

does not automatically preclude a finding of a prima facie case."

 Jackson v. Commonwealth, 8 Va. App. 176, 183, 380 S.E.2d 1, 4,

aff'd, 9 Va. App. 169, 384 S.E.2d 343 (1989) (en banc).    See also
Taitano v. Commonwealth, 4 Va. App. 342, 347, 358 S.E.2d 590, 592

(1987) (prima facie case was established even though blacks

remained on jury).   Two other "relevant circumstances" which

raise an inference of discriminatory action include:    (1) whether

the Commonwealth used a disproportionate number of strikes

against blacks and (2) the quality and quantity of the

Commonwealth's attorney's questions and statements during voir

dire examination and in exercising his challenges.     See Jackson,




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8 Va. App. at 183, 380 S.E.2d at 4 (citing Batson, 476 U.S. at

96-97).

     In the instant matter, the Commonwealth used 100% of its

strikes against black veniremen.   This was a disproportionate

number.   See Jackson, 8 Va. App. at 184, 380 S.E.2d at 5 (using

three out of four strikes against blacks was disproportionate).

Further, the Commonwealth's attorney asked only two questions

during voir dire.   He asked whether any members of the venire had

any family member or friend who was killed or murdered.   The four

veniremen who responded affirmatively to this question were not

struck by the Commonwealth.   He also asked whether any juror felt

he could not look at pictures of the victim.   None of the venire

responded affirmatively to this question.    The lack of meaningful
voir dire suggests the Commonwealth's attorney had no information

upon which to make a rational jury selection and raises the

inference he reverted to striking veniremen based on race.

Finally, the group which was struck was not alike in either age,

gender or any other recognizable way.

     We conclude the defendant made out a prima facie case of
discriminatory action by the Commonwealth.   The burden was then

on the Commonwealth to rebut the presumption by offering a

race-neutral reason for the peremptory strikes.   The trial

court's ruling that the Commonwealth need not rebut the inference

was error.   We reverse defendant's conviction and remand the case

for a new trial if the Commonwealth be so advised.




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        Reversed and remanded.




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