Rodney William Lightfoot v. Commonwealth of Virgini

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty and Beales
Argued at Richmond, Virginia
RODNEY WILLIAM LIGHTFOOT
OPINION BY
v. 	Record No. 3133-05-2 	JUDGE ELIZABETH A. McCLANAHAN
DECEMBER 11, 2007
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
Gregory R. Sheldon (Bain-Sheldon, P.L.C., on brief), for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
A jury convicted Rodney William Lightfoot of three counts of robbery, three counts of
using a firearm in the commission of a felony, and being armed while entering a bank with the
intent to commit larceny. At trial, Lightfoot made a Batson motion in response to the
Commonwealth’s use of peremptory strikes to remove two African-American women from the
venire, which the trial court denied. See Batson v. Kentucky, 476 U.S. 79 (1986). Lightfoot
contends the court erred in ruling that he failed to establish a prima facie case of purposeful
discrimination under Batson. A panel majority of this Court agreed with Lightfoot and reversed
the decision of the trial court. We granted a petition for rehearing en banc and stayed the
mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

- 2 -
I. BACKGROUND
Three African-Americans, one male and two females, were included in the venire of
twenty potential jurors (after three individuals were released for cause). Using two of its four
peremptory strikes, the Commonwealth struck the two African-American females from the
venire after completion of voir dire. One was Wanda Mead. The record does not reveal the
identity of the second African-American female. The African-American male remained on the
jury panel.
During voir dire,1 the Commonwealth asked, inter alia, if any of the potential jurors had
friends or relatives who had been charged with crimes in the past. Two individuals on the venire
responded affirmatively, Mead and Thomas Ewing, a Caucasian. Mead stated that a family
member had been charged with a traffic offense. Ewing explained that his daughter had been
charged with a felony. Like Mead, Ewing was subsequently struck by the Commonwealth.
Additionally, in response to a follow-up question by the Commonwealth, an unidentified female
on the panel indicated familiarity with one of the Commonwealth’s witnesses.
A number of potential jurors also gave affirmative responses to questions by Lightfoot’s
counsel, indicating a potential for bias. Some of those respondents are unidentified from the
record. One unidentified individual stated that he or she went to high school with Lightfoot.
Mead also revealed at that time she had visited someone in jail or prison.
After voir dire was completed and the parties exercised their peremptory strikes,
Lightfoot made a Batson motion on the grounds the Commonwealth had used two of its four
strikes to remove two of the three African-Americans. In further support of the motion (apart
1 The trial judge first asked the potential jurors a series of questions, resulting in two
individuals being released for cause. The third individual was released for cause during voir dire
conducted by defense counsel.

- 3 -
from simply pointing to these numbers), Lightfoot’s counsel asserted that the Commonwealth
did not question either of the two African-American women, whom it struck, and that neither of
them responded during voir dire to any of the questions posed by the parties’ respective counsel
or the trial court. Such circumstances, according to Lightfoot, indicated the Commonwealth
improperly struck these two African-Americans based on race.
The Commonwealth denied the assertion of Lightfoot’s counsel that the two
African-American women did not respond to questioning during voir dire, pointing specifically
to Mead’s affirmative response to the prosecutor’s questioning, along with Ewing, resulting in
both being struck by the Commonwealth. The trial court agreed with the Commonwealth,
finding that Lightfoot’s counsel was “not correct” in that assertion. The trial court also
ultimately agreed with the Commonwealth that Lightfoot had not established a prima facie case
of purposeful discrimination under Batson “based on what [his counsel had] articulated.”
II. ANALYSIS
A.
The United States Supreme Court held in Batson that the peremptory exclusion of a
potential juror based solely on the juror’s race “is purposeful discrimination and a violation of
the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.”
Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). Under Batson’s
three-step test, a defendant asserting such a violation initially “must show that the individual ‘is a
member of a cognizable racial group,’ Yarbrough v. Commonwealth, 262 Va. 388, 394, 551
S.E.2d 306, 309 (2001), cert. denied, 535 U.S. 1060 (2002) (quoting Batson, 476 U.S. at 96), and
‘make a prima facie showing that the peremptory strike was made on racial grounds.’ Jackson,
266 Va. at 436, 587 S.E. 2d at 542.” Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d
383, 412 (2006). “[If] a prima facie case is put before the court, the burden shifts to the

- 4 -
prosecution ‘to produce race-neutral explanations for striking the juror.’ The defendant can then
argue that the prosecution’s explanations were purely a pretext for unconstitutional
discrimination. Jackson, 266 Va. at 436, 587 S.E. 2d at 542.” Id. Under each of Batson’s three
steps, however, the “burden of persuasion ‘rests with, and never shifts from, the opponent of the
strike.’” Johnson v. California, 545 U.S. 162, 170-71 (2005) (quoting Purkett v. Elem, 514 U.S.
765, 768 (1995)).2
The trial court’s finding in the instant case that Lightfoot failed to establish a prima facie
case of racial discrimination3 under step one of Batson “is entitled to great deference” on appeal.
Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780 (2000) (applying deferential
2 A proponent of a peremptory strike sometimes proceeds to step two (offering an
explanation for the strike) before the trial court makes a step one determination, at which time
the court makes a step two ruling without having decided if a prima facie case was established
under step one. On appeal, such a case is reviewed under step two of Batson, without regard to
whether a prima facie case was made, because that issue is deemed waived. See Hernandez v.
New York, 500 U.S. 352, 359 (1991); Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305, 308
(1992); Barksdale v. Commonwealth, 17 Va. App. 456, 459, 438 S.E.2d 761, 763 (1993) (en
banc).
Here, the prosecutor stated his reasons for striking Mead when explaining to the trial
court that Mead did, in fact, respond affirmatively to one of his questions during voir dire,
contrary to defense counsel’s assertion. (The reasons given were the same as those apparent on
the record for striking her. See infra, Part II(B)(i)). The prosecutor did so in the context of
asserting that Lightfoot had made no step one prima facie showing, and the trial court made the
step one determination, which was dispositive. Therefore, our review is necessarily limited to
that step one determination.
3 Lightfoot contends on appeal he established a prima facie case of both racial and gender
discrimination in the Commonwealth’s exercise of peremptory strikes to remove the two
African-American women. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144-46 (1994)
(extending Batson principles to gender discrimination). However, Lightfoot did not raise an
issue of gender discrimination in the trial court. “Pursuant to Rule 5A:18, we ‘will not consider
an argument on appeal which was not presented to the trial court.’” Correll v. Commonwealth,
42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004) (quoting Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)), aff’d, 269 Va. 3, 607 S.E.2d 119 (2005). Rule
5A:18 thus bars our consideration of the gender issue.

- 5 -
standard of review to Batson’s step one determination (citing Batson, 476 U.S. at 98 n.21)).4
Therefore, this finding will not be reversed unless we determine it is “clearly erroneous.” James
v. Commonwealth, 247 Va. 459, 462, 442 S.E.2d 396, 398 (1994) (citing Hernandez v. New
York, 500 U.S. 352 (1991)); see United States v. Escobar-de Jesus, 187 F.3d 148, 164 (1st Cir.
1999) (“[T]he district court’s ruling [under step one of Batson] on this fact-sensitive question
must be upheld unless it is clearly erroneous.”), cited with approval in Johnson, 259 Va. at 674,
529 S.E.2d at 781; United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989) (applying clearly
erroneous standard to step one determination).
“To establish a prima facie case, the defendant must . . . ‘identify facts and circumstances
that raise an inference that potential jurors were excluded based on their race.’” Juniper, 271 Va.
at 407, 626 S.E.2d at 412 (quoting Yarbrough, 262 Va. at 394, 551 S.E.2d at 309); see Johnson,
545 U.S. at 168 (“First, the defendant must make out a prima facie case ‘by showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.’” (quoting
Batson, 476 U.S. at 93-94) (emphasis added)). This means the defendant may not rely on “some
magic number or percentage to trigger a Batson inquiry.” Jackson v. Commonwealth, 8
Va. App. 176, 182-84, 380 S.E.2d 1, 4-5 (1989); see United States v. Sangineto-Miranda, 859
F.2d 1501, 1521 (6th Cir. 1988) (“The Supreme Court’s mandate in Batson to consider all the
facts and circumstances means that we cannot lay down clear rules as to the specific numbers or
percentages that will constitute or refute a prima facie case.”), cited with approval in Johnson,
259 Va. at 674, 529 S.E.2d at 781. Consequently, the “[m]ere exclusion of members of a
particular race by using peremptory strikes ‘does not itself establish . . . a prima facie case under
4 See Batson, 476 U.S. at 97 (“We have confidence that trial judges, experienced in
supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use
of peremptory challenges creates a prima facie case of discrimination against black jurors.”).

- 6 -
Batson.’” Juniper, 271 Va. at 407, 626 S.E.2d at 412 (quoting Yarbrough, 262 Va. at 394, 551
S.E.2d at 309). “[S]o too, the mere inclusion of [a particular race] on a jury does not
automatically preclude a finding of a prima facie case . . . .” Jackson, 8 Va. App. at 183, 380
S.E.2d at 5. In other words, the trial court must make a “case-by-case determination whether the
facts and any other relevant circumstances raise an inference of discrimination.” Id. at 183, 380
S.E.2d at 5.
B.
In this case, we cannot say the trial court was clearly erroneous in its determination that
Lightfoot failed to establish a prima facie case under Batson—i.e., finding that the relevant facts
and circumstances did not give rise to an inference the Commonwealth was engaged in
purposeful racial discrimination when it struck the two African-American women.
(i) Mead
As to Mead, the record amply supports the trial court’s ruling. Lightfoot identified no
facts or circumstances for the strike from which a discriminatory motive could be inferred.
Indeed, the only reason apparent from the record for striking Mead is the same race-neutral
reason that would explain the strike of Ewing, a Caucasian. They were the only two potential
jurors who responded affirmatively when the Commonwealth asked if anyone on the venire had
friends or relatives who had been charged with crimes in the past. In addition, Mead stated
during defense counsel’s voir dire that she had visited someone in jail or prison. It is well
established that a court considering a Batson motion at step one “may consider apparent reasons
for the challenges discernible on the record, regardless of whether those reasons were the actual
reasons for the challenge.” United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (citation
omitted). “This consideration of ‘apparent reasons’ is in fact nothing more than a consideration
of ‘all relevant circumstances’ when determining whether an inference of discrimination is

- 7 -
established.” Id. at 516; see Gray v. Commonwealth, 233 Va. 313, 336-38, 356 S.E.2d 157,
170-71 (1987) (finding no prima facie case where it was “apparent” from record that
Commonwealth’s subject strike was based on race-neutral information revealed during voir
dire); see also Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000) (finding no prima facie
case where “record contain[ed] entirely plausible reasons, independent of race,” for peremptory
strike); Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996) (relying on “obvious neutral
reason for the challenge” in finding no prima facie case); Capers v. Singletary, 989 F.2d 442,
446 (11th Cir. 1993) (“When combined with the number of black jurors not challenged by the
state, the existence of plausible, racially neutral bases for the state’s exercise of peremptory
challenges, apparent on the record, is sufficient to nullify any inference of discrimination that
otherwise might be drawn from the number of strikes used to remove black potential jurors.”);
Washington v. Wright, 896 P.2d 713, 720 (Wash. App. 1995) (explaining that “apparent
nondiscriminatory reasons [for state’s peremptory strikes] are important because they mitigate
against finding a pattern of strikes”).
Furthermore, none of the prosecutor’s questions or statements during voir dire “indicated
[he] was of a mind to discriminate in [his] exercise of peremptory strikes,” Johnson, 259 Va. at
674-75, 529 S.E.2d at 781, which tends to “refut[e] an inference of discriminatory purpose,”
Batson, 476 U.S. at 96-97 (explaining that “the prosecutor’s questions and statements during voir
dire examination and in exercising his challenges may support or refute an inference of
discriminatory purpose”).
(ii) Unidentified African-American Woman
As to the other African-American woman struck by the Commonwealth, Lightfoot does
not present a sufficient record upon which we can determine whether the trial court committed
the alleged error. The record does not reveal her identity, nor does it reveal her responses, if any,

- 8 -
during voir dire. We can discern from the record, however, that during voir dire a number of
unidentified potential jurors responded affirmatively to questioning, providing race-neutral
reasons for striking those respondents.5 Any one of those respondents may have been the
unidentified African-American woman. Once again, evidence in the record of “entirely plausible
reasons, independent of race,” for exercising a peremptory strike implies that racial bias did not
motivate the prosecutor, thus negating a claim of purposeful racial discrimination under step one
of a Batson challenge. Wade, 202 F.3d at 1198.
Lightfoot has thus failed in his “burden of producing a record that supports a prima facie
case of purposeful discrimination” in the Commonwealth’s peremptory strike of the unidentified
African-American woman. Johnson, 259 Va. at 674, 529 S.E.2d at 780; see also Commonwealth
v. Williams, 262 Va. 661, 669, 553 S.E.2d 760, 764 (2001) (“[On appeal], the circuit court’s
judgment is presumptively correct and the burden is on the appellant to present a sufficient
record to permit a determination whether the circuit court committed an alleged error.” (citing
Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)); Bullock v. Commonwealth,
48 Va. App. 359, 366, 631 S.E.2d 334, 337 (2006) (“The party alleging reversible error has the
burden ‘to show by the record’ that the alleged error occurred.” (quoting Johnson v.
Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991))); Smith v. Commonwealth,
16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (“An appellate court must dispose of the case upon
5 As noted above, one unidentified potential juror, for example, revealed that he or she
went to high school with Lightfoot.

- 9 -
the record and cannot base its decision upon appellant’s petition or brief, or statements of
counsel in open court.”).
For these reasons, we affirm Lightfoot’s convictions.
Affirmed.