Kenneth Bernard Lewis v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
KENNETH BERNARD LEWIS OPINION BY
v. 	Record No. 1314-96-2 	JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
James B. Thorsen (Thorsen, Marchant & Scher,
on brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial, appellant, Kenneth Bernard Lewis,
was convicted of second degree murder and the use of a firearm in
the commission of a felony. 	On appeal, he contends that the
trial court erred in refusing to consider a Batson motion he made
after the jury was sworn and the remaining venirepersons were
excused. 	Finding no error, we affirm.
Following voir dire, a panel of twenty prospective jurors
stood ready to try appellant. 	Peremptory challenges were made, a
jury of twelve was sworn, and the remaining venirepersons were
excused. 	Appellant then, for the first time, raised a challenge
under Batson v. Kentucky, 476 U.S. 79 (1986), to the
Commonwealth's exercise of peremptory strikes. 	The trial court
refused to consider appellant's motion on the ground that it was
not timely made. 	In particular, the court noted that the jury

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had been sworn and the remaining venirepersons excused. 	The
court further noted that appellant had the opportunity to raise
his objection both before and after the time the clerk announced
the peremptory strikes.1
The United States Supreme Court has not specifically defined
temporal parameters for the making of a Batson motion. 	Instead,
the Court has left to the lower courts the decision to adopt
timeliness rules. 	Ford v. Georgia, 498 U.S. 411, 423 (1991)
("[A] state court may adopt a general rule that a Batson claim is
untimely if it is raised for the first time on appeal, or after
the jury is sworn, or before its members are selected."); see
also Batson v. Kentucky, 476 U.S. 79, 99-100 n.24 (1986) (making
"no attempt to instruct [lower] courts how best to implement [the
Batson] holding").
Most courts, however, hold that a party must raise a Batson
challenge prior to the time the jury is sworn and the remaining
venirepersons are excused. 	See McCrory v. Henderson, 82 F.3d
1243, 1249 (2d Cir. 1996); United States v. Parham, 16 F.3d 844,
847 (8th Cir. 1994); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534
1Appellant proffered his prima facie case of discrimination,
alleging that three of the four venirepersons whom the
Commonwealth struck were African-Americans and that none of them
had made comments or given answers during voir dire which would
have provided a basis other than race for their exclusion. 	On
brief, appellant predominantly argues the merits of his Batson
claim and the trial court's error in denying it. 	It bears
emphasis, however, that the trial court did not deny appellant's
motion on the merits; rather, it refused to consider the motion.
The issue on appeal is whether, as appellant also contends, the
trial court erred in refusing to consider his Batson motion.

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(9th Cir. 1991); United States v. Romero-Reyna, 867 F.2d 834, 837
(5th Cir. 1989); Government of Virgin Islands v. Forte, 806 F.2d
73, 76 (3d Cir. 1986); Owen-Corning Fiberglass Corp. v. Henkel,
689 A.2d 1224, 1228 (D.C. 1997); State v. Parker, 836 S.W.2d 930,
935 (Mo. 1992); State v. Harris, 754 P.2d 1139, 1140 (Ariz.
1988); see also Ford, 498 U.S. at 422 ("The requirement that any
Batson claim be raised not only before trial, but in the period
between the selection of the jurors and the administration of
their oaths, is a sensible rule."). 	The rationale for such a
rule is to prevent litigants from manipulating the judicial
process and to promote judicial economy. 	See McCrory, 82 F.3d at
1247 ("If . . . a Batson objection may be raised after the jury
has been sworn and trial has begun, there can be no remedy short
of aborting the trial. 	This would permit the defendant to
manipulate the system to the extreme prejudice of the prosecution
and give the defendant a strong inducement to delay raising the
objection until trial is underway."); Owens-Corning, 689 A.2d at
1228 ("Where . . . a party claiming a Batson violation is silent
during voir dire and complains only after the venire has been
dismissed and the jury has been sworn, it becomes difficult (if
not impossible) for the court and counsel to recreate in their
minds the circumstances of each strike."); Parker, 836 S.W.2d at
936 ("[S]ustaining a Batson challenge after discharge of the
venire necessitates the calling of a new venire and the selection
of a new jury, thereby delaying justice and wasting judicial time

4
and resources.");2 State v. Smith, 791 S.W.2d 744, 747
(Mo. Ct. App. 1990) (After the swearing of the jury, "the
defendant was . . . in jeopardy. 	If the defendant's challenges
were then sustained, the state's action supporting that ruling,
arguably, could be characterized as prosecutorial misconduct. 	It
would be this misconduct which, in turn, would require a mistrial
to be granted. 	A mistrial caused by the state may preclude the
defendant from again being put into jeopardy. 	This result may
not always be certain to occur. 	The risk is great enough,
however, to require defense counsel to challenge the state's
peremptory strikes prior to the jury being sworn and prior to the
remaining venirepersons being discharged."); Harris, 754 P.2d at
1140 ("When no objection is made until after the challenged
jurors have been excused, the possibility for an immediate remedy
for unconstitutional action has been lost.").
2Moreover, as the Court in Parker explained:
Quashing the panel and commencing the jury
selection process anew does not really
correct the error. 	The defendant is simply
accorded a new opportunity to obtain a jury
composed according to race-neutral criterion;
the discrimination endured by the excluded
venirepersons goes completely unredressed
since they remain wrongfully excluded from
jury service.
Requiring defendants to make Batson
challenges prior to the venire's dismissal,
on the other hand, allows the trial court to
determine whether a constitutional violation
has occurred while there remains time to
correct the error by disallowing the
offending strike.
836 S.W.2d at 936.

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In Virginia, a Batson motion is not waived by the
defendant's failure to raise it prior to the swearing of the
jury. 	Hill v. Berry, 247 Va. 271, 274, 441 S.E.2d 6, 7 (1994).
Rather, Code § 8.01-352 allows a Batson motion to be made after
the jury is sworn, but only with leave of court. 	Hill, 247 Va.
at 274, 441 S.E.2d at 7.3 We find no error in the trial court's
decision to deny leave in the present case.
The record shows that appellant had ample opportunity to
raise his Batson challenge before the jury was sworn and the
remaining venirepersons were discharged.4 The record shows that
3Code § 8.01-352(A) provides:
Prior to the jury being sworn, the following
objections may be made without leave of
court: (i) an objection specifically pointing
out the irregularity in any list or lists of
jurors made by the clerk from names drawn
from the jury box, or in the drawing,
summoning, returning, or impaneling of jurors
or in copying or signing or failing to sign
the list, and (ii) an objection to any juror
on account of any legal disability; after the
jury is sworn such objection shall be made
only with leave of court.
4In argument, appellant's counsel explained that, in order
to avoid interrupting the trial judge who was proceeding quickly
through the jury selection process, he deferred making his Batson
motion in anticipation of the trial court's inquiry in accordance
with the recommended procedure outlined in the Virginia Circuit
Court Benchbook. 	He cites, in particular, the procedure
directing the court to ask counsel after the juror strikes are
announced and before the jury is sworn whether there are "any
objections to the strikes or the panel." 	See, e.g., Cudjoe v.
Commonwealth, 23 Va. App. 193, 199, 475 S.E.2d 821, 824 (1996);
Benchbook Committee, Virginia Circuit Court Benchbook: 	Criminal
186 (Supp. 1995). 	He contends that the trial judge erred in
failing to inquire whether he had any motions to make before the
jury was sworn. 	To be sure, this protocol was not followed in
appellant's case. 	However, while making such inquiry is

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appellant knew which prospective jurors the Commonwealth struck
prior to the strikes having been announced. 	Manifestly,
appellant knew which prospective jurors the Commonwealth struck
as the strikes were announced, and he certainly knew which
prospective jurors the Commonwealth had struck after the strikes
were announced, the stricken jurors left their seats, and the
jury assembled in the box. 	Neither the record, nor appellant,
suggests that information concerning the Commonwealth's strikes
was unavailable to appellant at that time, and no reading of the
record suggests that appellant was otherwise prevented from
raising his challenge. 	In short, appellant had all the
information and opportunity he needed to raise his challenge
before the jury was sworn and the remaining venirepersons
dismissed. 	As such, the record fails to support appellant's
contention that the trial court should have granted him leave to
raise his challenge.
By contrast, the circumstances the trial court faced in this
case provided ample basis for its decision not to grant leave.
The choice of remedy upon sustaining a Batson challenge lies
within the discretion of the trial court. 	Coleman v. Hogan, 254
Va. 64, 67-68, 486 S.E.2d 548, 549-50 (1997). 	"The trial court
undoubtedly sound practice, the failure to follow recommendations
for the conduct of a trial does not rise to the level of
reversible trial error. 	See Clark v. Newport News Shipbuilding &
Dry Dock Co., 937 F.2d 934, 939 (4th Cir. 1991) ("Neither Batson,
nor its progeny, suggests that it is the duty of the court to act
sua sponte to prevent discriminatory exclusion of jurors.").

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is uniquely positioned to evaluate the circumstances in each case
and to exercise its discretion" in deciding whether to reseat
persons improperly struck from the jury panel or to discharge the
venire and select a jury from a new panel. 	Id. at 68, 486 S.E.2d
at 550. 	A trial court's exercise of discretion may be improperly
cabined, however, if the challenge is made after the jury is
sworn and the remaining venirepersons are discharged. 	At that
point, the court cannot reseat a juror improperly stricken, and
discharging the venire and beginning the process of jury
selection anew may be compelled under the circumstances. 	Such a
result will generally serve neither the public policy Batson
seeks to advance, nor the fair administration of justice.
In this case, the timing of appellant's challenge limited
the court's choice of remedy and frustrated the trial court's
ability to address the equal protection violation appellant
sought to remedy. 	See Parker, 836 S.W.2d at 936. 	At the
juncture appellant attempted to challenge the Commonwealth's
strikes of certain venirepersons, the court had discharged from
service those very individuals. 	Although appellant's equal
protection rights could be restored at that point by assembling a
new panel, no redress of the discrimination endured by the jurors
wrongfully excluded from serving could be achieved. 	See Parker,
836 S.W.2d at 936 ("The error at issue in a Batson challenge is,
of course, the state's racially discriminatory use of peremptory
strikes in violation of both the accused's and the excluded

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venirepersons' equal protection rights." (citing Powers v. Ohio,
499 U.S. 400, 409 (1991)).
In addition to leaving the court an incomplete remedy with
respect to the jurors improperly excluded, the untimely motion in
this case limited the court's ability to weigh the expenditure of
additional judicial resources and the ensuing, perhaps
substantial, delay in the administration of justice which can
follow a decision to strike the venire upon sustaining a Batson
challenge. 	When balanced against a record which makes manifest
that, notwithstanding the Batson claim, the appellant was given a
fair trial by a jury which was free from exception, it cannot be
said the trial court's decision to preserve judicial resources
and avoid a delay in the administration of justice constitutes an
abuse of discretion.
In short, we find that the trial court did not abuse its
discretion in denying appellant leave to raise Batson issues
after the jury was sworn; therefore, we affirm the trial court.
Affirmed.