                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


EUGENE LLOYD SPRUILL, JR.
                                            MEMORANDUM OPINION * BY
v.   Record No. 2532-96-1                 JUDGE JAMES W. BENTON, JR.
                                              DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Von L. Piersall, Jr., Judge
           Dianne G. Ringer, Senior Assistant Public
           Defender, for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      A jury convicted Eugene Lloyd Spruill of robbery and use of

a firearm in the commission of robbery.    On this appeal, Spruill

contends that the trial judge erred in overruling his Batson

challenge to two of the Commonwealth's peremptory strikes.    We

agree that the evidence proved a Batson violation, and we remand

for a new trial.

                                 I.

      During jury selection, defense counsel requested the trial

judge to ask the members of the venire if they had served on

juries in criminal cases.   Several jurors raised their hands.

The judge also asked how many had served on civil juries.    The

judge then inquired as to how many jurors had "served as jurors

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
before this term, before coming to this term of court."      Several

jurors raised their hands.    The judge asked how many had served

on criminal trials.    Juror Newby, Juror Eastwick, and "some extra

jurors in the back" indicated that they had.

        The prosecutor used two of his four peremptory strikes to

remove African-American jurors, including Jurors Newby and

Randall, from the 20 member venire.      After Spruill made a Batson

challenge, the trial judge asked the prosecutor to articulate his

reasons for the strikes. The prosecutor responded as follows:
          The reason I struck Miss Newby, Your Honor,
          was she admitted to this court candidly she'd
          served before in a criminal trial and, to be
          honest with you, I wanted to get somebody
          else who had not been here before. We had
          plenty of candidates available. That was the
          reason I struck Miss Newby.

             [T]he reason I struck Miss Randall, if the
             court recollects . . . , she had on dark
             sunglasses. I couldn't see her, and that was
             the reason that I struck her. I was unable
             to get a read on her expression to see if she
             was paying attention or anything else, for
             that matter, Your Honor; and those were the
             reasons I'd proffer to the Court for my
             strikes.


        The judge then asked the prosecutor "Did you strike either

one of them because of their race?"      The prosecutor responded

"No."    The prosecutor then explained the reasons for his striking

two other people who were not African-American.     Defense counsel

asserted that wearing sunglasses was not sufficient cause and

also noted that other members of the jury panel had indicated

they had previously served on criminal juries.     The trial judge



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ruled:
          At this point I don't think there's been
          adequate basis for the Court finding that the
          Commonwealth has made any race-based
          decisions in their peremptory strikes. . . .
          And, therefore, if you're making a Batson
          motion, I'm going to overrule that.


                                II.

     Racially motivated peremptory strikes are unconstitutional

and impermissible.   Batson v. Kentucky, 476 U.S. 79 (1986).    In

Buck v. Commonwealth, 247 Va. 449, 443 S.E.2d 414 (1994), the

Supreme Court of Virginia set out the procedure for determining

whether the prosecutor exercised peremptory strikes to remove

prospective jurors solely on the basis of race.
          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.

Id. at 450-51, 443 S.E.2d at 415 (citations omitted).   When the

prosecutor "offer[s] . . . reasons for the strikes, we need not

consider whether [the defendant] established a prima facie

showing of discrimination."   Id. at 451, 443 S.E.2d at 415.

Because the prosecutor in this case articulated reasons for the

strikes, we first consider whether the Commonwealth's explanation

for striking Juror Newby was race neutral.




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     A trial judge's finding that an explanation is race neutral

is a finding on a matter of law and is fully reviewable by this

Court.   See Riley v. Commonwealth, 21 Va. App. 330, 335, 464

S.E.2d 508, 510 (1995).    To satisfy Batson requirements, "the

Commonwealth attorney must articulate a neutral explanation

related to the particular case to be tried."     Taitano v.

Commonwealth, 4 Va. App. 342, 346, 358 S.E.2d 590, 592 (1987).

"However, after the Commonwealth has asserted a facially

race-neutral reason to strike, but has only struck jurors of one

race and the reason asserted for the strike is equally applicable

to other members of the venire of a different race, the reason

asserted is not a satisfactory race-neutral explanation for the

Commonwealth's strikes."    Broady v. Commonwealth, 16 Va. App.

281, 285, 429 S.E.2d 468, 470 (1993).    It is not enough for the

Commonwealth, in rebutting Spruill's prima facie case, "to adopt

rote 'neutral explanations' which are only facially legitimate."

 Jackson v. Commonwealth, 8 Va. App. 176, 186, 380 S.E.2d 1, 6,
aff'd on reh'g en banc, 9 Va. App. 169, 384 S.E.2d 343 (1989).

     After the prosecutor gave the explanation for striking Juror

Newby, defense counsel protested that several other venire

members who also had served on criminal juries were not struck.

The record supports that assertion.     However, the trial judge

made no finding to address the objection.    When a specific

objection is made to a strike, "[t]he trial judge cannot merely

accept at face value the reason proffered but must independently




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evaluate those reasons as he would any disputed fact."      Jackson,

8 Va. App. at 185, 380 S.E.2d at 6.      Here, it is clear from the

record that the prosecutor did not offer a facially race-neutral

explanation because none of the other members of the venire with

the same criteria were struck.     See Broady, 16 Va. App. at 285,

429 S.E.2d at 471.

     In order to overcome the presumption that the strikes were

racially motivated, the prosecutor should have been required to

explain his reasons for striking an African-American juror, but

not striking any of the other jurors who had indicated that they

too had previously served on criminal juries.     Because this was

not done and because the trial judge made no finding, we hold

that, under the totality of the circumstances, the Commonwealth's

asserted reasons are insufficient to rebut Spruill's prima facie
showing that the strike was made on the basis of race.

     Because the strike of Juror Newby was impermissible, we need

not consider the Commonwealth's reasons for striking the other

African-American.    Permitting the improper removal of any one

member of the venire constitutes reversible error.      See Hill v.

Berry, 247 Va. 271, 277, 441 S.E.2d 6, 9 (1994); Jackson, 8 Va.

App. at 185, 380 S.E.2d at 5-6.

     Accordingly, we reverse the convictions and remand for a new

trial before a properly selected jury.

                                            Reversed and remanded.




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