David Eugene Huff v. Commownealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judges Kelsey and McClanahan
Argued at Salem, Virginia
DAVID EUGENE HUFF
MEMORANDUM OPINION* BY
v. 	Record No. 2371-09-3 	CHIEF JUDGE WALTER S. FELTON, JR.
OCTOBER 19, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Glenn L. Berger (Berger & Thornhill, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
David Eugene Huff (appellant) was convicted by a jury of solicitation to commit murder
in violation of Code § 18.2-29. On appeal he asserts that the trial court erred in denying his
Batson1 motion, arguing that the Commonwealth unconstitutionally exercised its peremptory
challenges to remove four men from the venire. For the following reasons, we disagree and
affirm the conviction.
Because the assigned error relates solely to procedural aspects of the proceeding below,
we recite only those facts necessary to resolve the issue present in this appeal. Appellant was
charged with soliciting a fellow jail inmate to kill his ex-wife. At trial, the Commonwealth and
appellant each peremptorily struck members of the venire. The Commonwealth struck four men
from the venire. The record does not reflect which members appellant struck from the venire.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1 Batson v. Kentucky, 476 U.S. 79 (1986).

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After the parties completed their respective peremptory strikes, the jury was composed of seven
men and five women. Appellant objected to the Commonwealth’s peremptory strikes, arguing
that they were discriminatory. Appellant’s counsel argued:
We would submit that this is a case involving a man who is being
tried for an offense allegedly against a woman, and we would
submit that their decision to strike only men from the jury panel is
suspect, and we object to their elimination of only men from the
jury panel.
The Commonwealth then provided the trial court with gender-neutral reasons for its striking each
of the four men from the venire. Appellant made no additional comments or arguments
regarding the Commonwealth’s explanations for its peremptory strikes. The trial court found the
Commonwealth’s peremptory strikes were not discriminatory. Appellant made no further
objections concerning the make-up of the jury panel.
“‘On appellate review, the trial court’s conclusion regarding whether reasons given for the
strikes are [non-discriminatory] is entitled to great deference, and that determination will not be
reversed on appeal unless it is clearly erroneous.’” Avent v. Commonwealth, 279 Va. 175, 196, 688
S.E.2d 244, 256 (2010) (quoting Jackson v. Commonwealth, 266 Va. 423, 437, 587 S.E.2d 532, 543
(2003)).
“When a defendant raises a challenge based on Batson, he must
make a prima facie showing that the peremptory strike was made
on [prohibited discriminatory] grounds. At that point, the burden
shifts to the prosecution to produce [non-discriminatory]
explanations for striking the juror. The defendant may then
provide reasons why the prosecution’s explanations were
pretextual and the strikes were discriminatory regardless of the
prosecution’s stated explanations. Whether the defendant has
carried his burden of proving purposeful discrimination in the
selection of the jury is then a matter to be decided by the trial
court.”
Id. at 196-97, 688 S.E.2d at 256 (quoting Jackson, 266 Va. at 436, 587 S.E.2d at 542). These
principles apply to discrimination based on gender. J.E.B. v. Alabama ex. rel. T.B., 511 U.S.

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127, 140 (1994) (“Discriminatory use of peremptory challenges may create the impression that
the judicial system has acquiesced in suppressing full participation by one gender or that the
‘deck has been stacked’ in favor of one side.”).
“Clearly, Batson’s ‘proof structure’ requires a defendant, confronted with a facially
neutral explanation for a prosecutor’s peremptory strikes, ‘to show both that these reasons were
merely pretextual and that race [or gender] was the real reason.’” Robertson v. Commonwealth,
18 Va. App. 635, 638, 445 S.E.2d 713, 715 (1994) (quoting United States v. McMillon, 14 F.3d
948, 953 (4th Cir. 1994)). In Robertson, the defendant argued on appeal that the
Commonwealth’s explanations for striking venirepersons were “unsupported or contradicted by
the record.” Id. at 640, 445 S.E.2d at 716. However, because Robertson did not present those
arguments to the trial court, we concluded that Rule 5A:18 barred our consideration of that
claimed error and concluded that those contentions by Robertson would not be considered for the
first time on appeal. Id. Similarly, in Avent, the Supreme Court noted that “it was incumbent
upon Avent to demonstrate that the reasons advanced by the Commonwealth for striking these
potential jurors ‘were purely a pretext for unconstitutional discrimination.’” 279 Va. at 197, 688
S.E.2d at 256 (quoting Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412
(2006)).
Here, appellant argues for the first time on appeal that the Commonwealth’s explanations
for its peremptory strikes were “partial and vague.” However, appellant did not present the
arguments he makes on appeal to the trial court. Like the defendant in Avent, appellant “did not
offer any evidence or argument [to the trial court] that the Commonwealth’s proffered rationale
behind the [four] strikes challenged in this appeal were pretextual.” Id. We will not consider for
the first time on appeal appellant’s contentions of trial court error not addressed by the trial
court. Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal

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unless the objection was stated together with the grounds therefor at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”).2
Appellant does not argue that we should invoke either the good cause or ends of justice
exceptions to Rule 5A:18. See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d
269, 272 (1997). The Court will not consider Rule 5A:18 exceptions sua sponte. Edwards v.
Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
Accordingly, we conclude from the record on appeal that the trial court did not err in
denying appellant’s Batson motion and we affirm the conviction.
Affirmed.
2 Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to
this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.