Sergio E. Hayes, a/k/a Andre O. Julian v CW

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COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia

SERGIO EMMANUEL HAYES, A/K/A
ANDRE O. JULIAN
MEMORANDUM OPINION BY
Vv. Record No. 2529-97-2 JUDGE JERE M. H. WILLIS, OR.
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

Sa'ad El-Amin (El-Amin & Crawford, on brief),
for appellant.

Jeffrey S. Shapiro, Assistant Attorney

General (Mark L. Earley, Attorney General, on
brief), for appellee.

Sergio Emmanuel Hayes contends that the trial court erred in
denying his challenge to the Commonwealth's exercise of
peremptory strikes against four African-American veniremen. See

Batson v. Kentucky, 476 U.S. 79 (1986). We find no reversible

error and affirm the judgment of the trial court.
I.

Hayes, an African-American, was charged with abduction,
carjacking, and use of a firearm in the commission of a felony.
During jury selection, the Commonwealth peremptorily struck four
African-Americans from the venire, which consisted of eleven
whites and nine African-Americans. The resulting jury consisted

of seven whites and five African-Americans. Hayes moved the

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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trial court to review the Commonwealth's peremptory strikes
pursuant to Batson. 	The trial court ruled that Hayes had
established a prima facie showing and required the Commonwealth
to explain its reasons for the strikes. 	The prosecutor replied
as follows:
[T]he Commonwealth's case is based on
principal in the second degree, so it's sort
of a technical legal issue, and I want to
make sure that we have people that appear by
their occupations, which is all I have to go
by, appear to have some sort of educational
background. 	I've gone through a process of
elimination -- the people that I happened to
strike seem -- do not have the educational
background that the other people have.
The prosecutor explained that Alpheus Patterson's employment
as a toll collector and Myra Bellamy's employment with Good
Humor/Breyers suggested that they had limited educations. 	He
said that he struck Mary Griffin because her employment with a
nursing home "would not indicate a strong educational
background," and because she appeared "to be strong willed and
determined, and that, in my experience, can be dangerous either
way." 	He stated that he struck Glynis Gayles because she "was
looking around the courtroom some" during voir dire, and was
unemployed "which with all else equal indicates she might not
have the same educational background."
Hayes argued that the education level of the selected white
jurors was not apparent and could not be inferred reasonably from
their listed occupations. 	He noted that the white jurors
included William Stark, an eighteen-year-old student, and

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Madeline Brown, a fifty-six-year-old historic tour guide and
housewife.
The trial court denied Hayes' Batson motion and seated the
jury. 	During sentencing deliberations, the trial court permitted
Hayes to record additional facts concerning the composition of
the jury. 	In addition to Stark and Brown, the white jurors
included: 	(1) Cynthia Fauber, occupation not indicated in the
record; (2) Fred Finn, a merchant; (3) Jimmy Gray, a maintenance
worker; (4) Steve Quillman, a non-destructive inspector; and (5)
Andrew VanDerren, a sales representative.1 The occupations of
the African-American jurors were not made a part of the record.
II.
A.
To preserve a defendant's "right to be tried by a jury whose
members are selected pursuant to nondiscriminatory criteria," the
parties to a criminal proceeding are prohibited from using
peremptory challenges to strike prospective jurors "solely on
account of their race." 	Batson, 476 U.S. at 85-86, 89. 	See
Georgia v. McCollum, 505 U.S. 42, 54-55 (1992).
When a defendant challenges the prosecution's use of
peremptory strikes on equal protection grounds, the trial court
must employ a three-step process to determine whether a Batson
1Hayes asserts that Patsy Dorman, a juror, is white.
However, the record does not indicate that she is white. 	At
trial, defense counsel listed the names of the seven white
members of the jury.

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violation has occurred. 	First, "[the] defendant must . . .
establish a prima facie showing that the peremptory strike was
made on the basis of race." 	Buck v. Commonwealth, 247 Va. 449,
450-51, 443 S.E.2d 414, 415 (1994) (citation omitted). 	Once the
challenger has established a prima facie showing, the proponent
of the strike must proffer a race-neutral explanation. 	See id.
at 451, 443 S.E.2d at 415 (citation omitted).
"At this [second] step of the inquiry,
the issue is the facial validity of the
prosecutor's explanation. 	Unless a
discriminatory intent is inherent in the
prosecutor's explanation, the reason offered
will be deemed race neutral."
Purkett v. Elem, 514 U.S. 765, 768 (1995) (quoting Hernandez v.
New York, 500 U.S. 352, 360 (1991) (plurality opinion)).
Finally, "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) (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," and this decision will
not be reversed unless clearly erroneous.
This standard of review logically recognizes
the trial court's unique opportunity to
observe and evaluate "the prosecutor's state
of mind based on demeanor and credibility" in
the context of the case before the court.

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Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,
715 (1994) (citations omitted).
B.
The trial court's denial of Hayes' motion was not clearly
erroneous. 	The trial court correctly found that Hayes had
established a prima facie showing of racial discrimination and
required the Commonwealth to explain its peremptory strikes. 	The
prosecutor explained that the case involved difficult legal
concepts and that he exercised his strikes based upon the venire
members' demeanor and apparent level of education. 	The trial
court concluded that the reasons offered by the prosecutor were
race-neutral and should be believed.
Occupation, education and demeanor during voir dire are
proper race-neutral considerations in exercising peremptory
strikes. 	See Stockton v. Commonwealth, 241 Va. 192, 208-09, 402
S.E.2d 196, 205-06 (1991); Goodson v. Commonwealth, 22 Va. App.
61, 81, 467 S.E.2d 848, 858 (1996). 	The prosecutor justified his
strikes of Griffin and Gayles noting, in part, their demeanor
during voir dire. 	A prosecutor's use of peremptory challenges is
not so circumscribed as to require seating persons expressing a
"strong will" or displaying a penchant for idle gazing. 	The
quest for a jury free from the taint of racial or gender
discrimination does not require a party to abandon subjective
criteria in exercising peremptory strikes. 	Indeed, "the approach
best expressed by the familiar phrase '[t]here but for the grace

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of God go I' remains a standard and permissible justification for
peremptory strikes." 	United States v. McMillon, 14 F.3d 948, 953
(4th Cir. 1994). 	See also Batson, 476 U.S. at 99 n.22.
The prosecutor explained that based on the information
available to him, the struck veniremen appeared to be less
educated than the other members of the venire. 	The selected
white jurors included a mechanic, an inspector, a sales
representative, a historic tour guide, a student and a merchant.
While we cannot say that these pursuits necessarily require a
higher level of education than a position in a toll collection
booth or an ice cream facility, or that the struck jurors were
less educated than the selected jurors, neither can we say that
the prosecutor's opinion that this was the case was unreasonable.
See Winfield v. Commonwealth, 12 Va. App. 446, 452-53, 404
S.E.2d 398, 402 (1991), aff'd en banc, 14 Va. App. 1049, 421
S.E.2d 468 (1992).
Hayes bears the burden of showing that the prosecutor's
facially neutral "reasons were merely pretextual and that race
was the real reason for the strike." 	McMillon, 14 F.3d at 953.
See Robertson, 18 Va. App. at 638, 445 S.E.2d at 715. 	He
produced no evidence to that effect. 	Based upon its observation
of the venire during voir dire and its view of the prosecutor's
credibility and demeanor, the trial court determined that the
prosecutor's reasons for the strikes were race-neutral and
believable. 	The record supports this conclusion.

The judgment of the trial court is affirmed.

Affirmed.