                     COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia

DENALDO MAURICE HILL

v.           Record No. 1575-94-1        MEMORANDUM OPINION * BY
                                         JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                     JULY 18, 1995

             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Alfred W. Whitehurst, Judge

             W. Thurston Harville, for appellant.

             H. Elizabeth Shaffer, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.


     Denaldo Maurice Hill (defendant) was convicted by a jury for

murder, malicious wounding, robbery, abduction, three counts of

use of a firearm during the commission of a felony, possession of

a sawed-off shotgun, and wearing a mask in a public place.      On

appeal, defendant complains that the trial court erroneously

concluded that he peremptorily struck a juror in violation of

Batson v. Kentucky, 476 U.S. 79 (1992).     We disagree and affirm

the convictions.

     Both defendant and the Commonwealth are entitled to a jury

selected free of racial bias and, therefore, race based

peremptory strikes are unconstitutional and impermissible.      Id.

at 89; Georgia v. McCollum, ___ U.S. ___, ___, 112 S. Ct. 2348,

2357 (1992).     Batson and its progeny have established the

procedures attendant to an allegation of discriminatory jury

selection.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
          The [aggrieved party] must make a prima facie
          showing that the [other party] has exercised
          peremptory strikes on the basis of race
          [gender]. If this showing is made, the
          burden shifts [to such other party] to
          articulate a racially [gender] neutral
          explanation for striking the jurors in
          question. If the court determines that the
          proffered reasons are race [gender] neutral,
          the [aggrieved party] should be afforded an
          opportunity to show why the reasons, even
          though facially . . . neutral, are merely
          pretextual and that the challenged strikes
          were based on race [gender].


James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398

(1994) (citations omitted); Purkett v. Elem, ___ U.S. ___, ___,
115 S. Ct. 1769, 1770-71 (1995); Robertson v. Commonwealth, 18

Va. 635, 637-38, 445 S.E.2d 713, 714 (1994).   If a party

undertakes an explanation of disputed strikes before the trial

court finds a prima facie case of racial discrimination, that

issue is "waived" and becomes "irrelevant."    Barksdale v.

Commonwealth, 17 Va. App. 456, 459, 438 S.E.2d 761, 763 (1993)

(en banc) (citation omitted).
          'In evaluating the race-neutrality of an
          attorney's explanation, 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



                              - 2 -
on appeal,' which should be disturbed only if 'clearly erroneous.'"

 Id. at 460, 438 S.E.2d at 763 (citation omitted).     Thus, we must

affirm a decision of the trial court that is supported by credible

evidence.   Winfield v. Commonwealth, 12 Va. App. 446, 453, 404

S.E.2d 398, 402 (1991).

     Here, defendant, a black male, initially struck three white

females and one white male from the venire.   In accord with Batson

protocols, the Commonwealth requested that "defendant state on the

record the reasons for his strikes," and defendant immediately

proceeded with an explanation for each.   Thereafter, the trial

court concurred in the Commonwealth's argument that defendant's

"reasons" were "not good enough" to withstand Batson scrutiny and
disallowed the strikes.   The selection procedure then began anew

with the reconstituted venire, and defendant's peremptory strikes

were again challenged by the Commonwealth.    Defendant once more

offered justification for each strike and all were approved as race

neutral by the court, save Keith Dyer, a white male.

     Defendant explained that "Dyer is a school teacher who . . .

was the victim of an assault," and, although "he didn't have to go

to the hospital," had suffered from "a crime of violence."    Because

defendant was "on trial for a crime of violence," defendant was
                                                                1
"not comfortable taking [a] chance" with Dyer's impartiality.       In

response, the Commonwealth acknowledged that this explanation

     1
      This explanation contrasted with defendant's earlier
comment, during voir dire, that, "Dyer is a schoolteacher
somewhere or another, and he was assaulted. I don't make that
any big deal, Judge, so I don't have a motion."



                               - 3 -
"sounds good," but noted that defendant did not remove a "black

female [whose] baby's father was [murdered] . . . two months ago,

three months ago."   Finding, therefore, that defendant's facially

race-neutral explanation had not been equally applied to all

venirepersons, the trial court implicitly concluded that it was

pretextual and disallowed the strike.

     As a threshold issue, defendant argues that the trial court

did not find a prima facie case of racial discrimination

indispensable to a Batson challenge.    However, this procedural

defect was waived when defendant explained his strikes without

first presenting that issue before the court.

     Defendant next complains that the trial court erroneously

concluded that defendant's "reasons for his strikes were not

sufficient."   However, the record clearly discloses that defendant

did not employ his rationale for the Dyer strike to all

venirepersons.   If the reason asserted for a strike is not

consistently applied to all members of a venire, it is not an

acceptable race-neutral explanation.    Broady v. Commonwealth, 16

Va. App. 281, 285, 429 S.E.2d 468, 471 (1993).

     Thus, the evidence provided ample support to the decision of

the trial court, and, accordingly, we affirm the convictions. 2

                                                          Affirmed.

     2
      For the first time on appeal, defendant also contends that
Batson principles do not apply to a "minority defendant's strikes
of majority jurors." However, an "issue . . . not presented to
the trial court" will not be considered "for the first time on
appeal." Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991); Rule 5A:18.




                               - 4 -
