Charles Richard Riley, etc v Commonwealth

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia

CHARLES RICHARD RILEY,
a/k/a MIKE COOK,

a/k/a AUBREY RAY THROCKMORTON OPINION BY
JUDGE ROSEMARIE P. ANNUNZIATA
Vv. Record No. 1490-94-2 DECEMBER 12, 1995

COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Robert P. Geary for appellant.
Eugene Murphy, Assistant Attorney General

(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Following a jury trial, the appellant, Charles Richard
Riley, was convicted of abduction, five counts of rape, and two
counts of sodomy. On appeal, he contends that the trial court
erred in the following: (1) sustaining the Commonwealth's
peremptory challenges even though based on the gender of the
stricken jurors; (2) ruling that the Commonwealth's peremptory
challenges based on age were proper; and (3) bifurcating the
trial and sentencing proceedings pursuant to Code § 19.2-295.1.
We find that the Commonwealth's peremptory strikes were gender-
based and, therefore, improper. Accordingly, we reverse the
convictions of the trial court and remand the case for a new
trial. We affirm the trial court on the remaining issues
presented.

On March 25, 1993, the victim went for an early morning jog.

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During her run, the appellant approached the victim, placed her
in a headlock, and held a knife to her throat. 	The appellant led
the victim into the woods where he restrained her with a rope and
repeatedly raped and sodomized her. 	The appellant then led the
victim from the woods and released her.
At trial, the Commonwealth used its peremptory strikes to
remove five prospective jurors. 	The five jurors were females
ranging in age from fifty-eight to sixty-six years old. 	The
appellant objected on the ground that the peremptory strikes
violated the Equal Protection Clause because the strikes were
based on gender and age-related reasons. 	The trial court
overruled the objection.
I
A defendant has the "right to be tried by a jury whose
members are selected pursuant to nondiscriminatory criteria."
Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). 	In Batson, the
United States Supreme Court held that the peremptory exclusion of
jurors "on account of their race" violates the Equal Protection
Clause. 	Id. at 89. 	In J.E.B. v. Alabama ex rel. T.B., 114
S. Ct. 1419 (1994), the Court extended this protection and held
that "gender, like race, is an unconstitutional proxy for juror
competence and impartiality." 	Id. at 1421.
The Batson Court established a three-step test to determine
the validity of allegedly discriminatory peremptory challenges.
The opponent of a peremptory challenge must establish a prima
facie case of discrimination (step 1); once a prima facie case is

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made, the burden of production shifts to the proponent of the
strike to produce a race-neutral or, as in this case, a gender-
neutral explanation (step 2); if a neutral explanation is
proffered, the trial court must then decide whether the opponent
of the strike has met its burden and proved purposeful
discrimination (step 3). 	Purkett v. Elem, 115 S. Ct. 1769,
1770-71 (1995); see also Buck v. Commonwealth, 247 Va. 449,
450-51, 443 S.E.2d 414, 415 (1994); Carter v. Commonwealth, 16
Va. App. 118, 123, 428 S.E.2d 34, 37 (1993). 	The Supreme Court
has emphasized the requirement that a court carry out each step
independently. 	Terminating the inquiry prematurely, at step two,
"violates the principle that the ultimate burden of persuasion
regarding [unlawful discriminatory] motivation rests with, and
never shifts from, the opponent of the strike." 	Purkett, 115
S. Ct. at 1771.1
In this case, the appellant contends that the Commonwealth
exercised its peremptory strikes for age and gender reasons. 	The
1 The record reflects that, after the trial court
determined that the Commonwealth's explanation was neutral, the
appellant attempted to meet his burden of proving purposeful
discrimination as mandated by Batson. 	See Carter, 16 Va. App. at
124, 428 S.E.2d at 39-40. 	The appellant argued that the
Commonwealth's explanation was pretextual, contending that if the
Commonwealth had wanted to strike persons most unlike the victim,
it would have stricken men. 	The trial court did not specifically
rule on the appellant's contention. 	Even if this Court found
that the Commonwealth met its step two burden by providing a
neutral, age-based, explanation for its strikes, the trial court
failed to determine whether the allegedly neutral reasons given
were pretextual. 	See id. 	Ending the inquiry without making such
a determination is error, requiring remand. 	United States v.
Joe, 928 F.2d 99, 103 (4th Cir.), cert. denied, 502 U.S. 816
(1991).

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propriety of the appellant's prima facie case is not at issue.
The trial judge expressed some doubt about the existence of a
prima facie showing but assumed, for the purpose of the record,
that the appellant met his initial burden. 	Moreover, the
Commonwealth proceeded in its attempt to offer neutral reasons
for the challenges. 	When the proponent proceeds to step two
before the court makes a step one determination, the trial court
need not consider whether the opponent established a prima facie
showing of discrimination. 	See Buck, 247 Va. at 451, 443 S.E.2d
at 415 (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)
(plurality opinion)).
In attempting to provide a neutral explanation, the
Commonwealth defended the constitutionality of its selections as
follows: What I have done, by removing the people I
struck, I have removed women who are most
unlike the victim, in terms of age. 	I have
left on those who share the victim's
characteristics as much as I can, in terms of
their sex and their age. 	There is not a
discriminatory basis. 	This is a basis based
on the facts that I have a rape victim who
is, (A) She's a working female. 	I don't know
what attitude other individuals who are older
may take; and (B) I have a young lady who is
out jogging, and I don't know what attitude
older females may take, but I do know they're
most unlike the victim, as far as I can
determine from the scant evidence we have,
their age and their lifestyle. 	I would point
out to the Court that I have in the past, my
experience, based on trying cases, and I am a
veteran of seventeen years of trying cases,
from Henrico County Circuit Court, is that in
rape cases, feedback I have gotten from the
jury afterwards, is that many times the
elderly female jurors have difficulty
accepting certain aspects of the cases, and
they have a difficult time considering the

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evidence and reaching a verdict of guilt.
A trial court's determination that the Commonwealth's
explanation was gender-neutral is a finding on a matter of law
and fully reversible by this Court. 	See Purkett, 115 S. Ct. at
1771 (step two explanation must be legally sufficient to justify
judgment for defendant); Hernandez, 500 U.S. at 360 (step two
explanation is invalid if discriminatory intent is inherent in
the explanation). 	Unlike a trial court's determination that the
explanation is pretextual, a determination turning largely on the
proponent's credibility, e.g. Hernandez, 500 U.S. at 365, a trial
court's finding of "facial neutrality" is not given deference on
appeal.
The trial court determined that the Commonwealth's
explanation was facially neutral, limiting its inquiry to the
factor of age alone. 	The court correctly concluded that age is a
permissible basis upon which to exercise a peremptory strike.
See Barksdale v. Commonwealth, 17 Va. App. 456, 461, 438 S.E.2d
761, 764 (1993); Chambliss v. Commonwealth, 9 Va. App. 267,
269-70, 386 S.E.2d 478, 479 (1989). 	However, the court failed to
address defense counsel's contention that the Commonwealth's
strikes were gender-based.
To survive challenge at step two, the strike must be based
on a juror characteristic other than gender. 	J.E.B., 114 S. Ct.
at 1430. 	Here, however, the prosecutor's explanation clearly
references his intention to strike only women--albeit older
women--from the jury panel. 	The fact that the Commonwealth used

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age to identify which women to strike does not overcome the
constitutional infirmity. 	The Commonwealth exercised its strikes
based on the assumption that the women would hold particular
views because of their gender. 	Such attempts to stereotype in
the jury selection process are impermissible. 	Lying "at the very
heart of the jury system" is the factual assumption that "jury
competence is an individual rather than a group or class matter."
J.E.B., 114 S. Ct. at 1430 n.19.
The Commonwealth's explanation bears a striking resemblance
to the justification offered by the State of Alabama in J.E.B.
when it used nine of its ten peremptory challenges to strike men.
The State maintained that its decision to strike virtually all
males from the jury
may reasonably have been based upon the
perception, supported by history, that men
otherwise totally qualified to serve upon a
jury might be more sympathetic and receptive
to the arguments of a man alleged in a
paternity action to be the father of an
out-of-wedlock child, while women equally
qualified to serve upon a jury might be more
sympathetic and receptive to the arguments of
the complaining witness who bore the child.
J.E.B., 114 S. Ct. at 1426.
The J.E.B. Court rejected the defense to gender-based
peremptory challenges as "'the very stereotype the law
condemns.'" 	Id. 	Such discrimination "serves to ratify and
perpetuate invidious, archaic, and overbroad stereotypes about
the relative abilities of men and women." 	Id. at 1422.
"[G]ender classifications that rest on impermissible stereotypes
violate the Equal Protection Clause, even when some statistical

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support can be conjured up for the generalization." 	Id. at 1427
n.11.
The explanations offered by the Commonwealth evidence a
clear violation of J.E.B. and require this Court to reverse and
remand this case to the trial court for further proceedings
consistent with this opinion.
II
The appellant argues that under Code § 1-16,2 the unitary
trial and sentencing procedures in force at the time of his
crimes should have been followed at his second trial rather than
the bifurcated proceedings mandated by Code § 19.2-295.1. 	This
crime occurred on March 25, 1993. 	The appellant was first
convicted on November 16 and 17, 1993. 	Those convictions were
overturned and a new trial was ordered due to juror misconduct.
Code § 19.2-295.13 took effect after the first trial and before
2 Code § 1-16 provides, in pertinent part:
No new law shall be construed to repeal a
former law, as to any offense committed
against the former law, or as to any act
done, any penalty, forfeiture, or punishment
incurred, or any right accrued, or claim
arising under the former law, or in any way
whatever to affect any such offense or act so
committed or done, or any penalty,
forfeiture, or punishment so incurred, or any
right accrued, or claim arising before the
new law takes effect; save only that the
proceedings thereafter had shall conform, so
far as practicable, to the laws in force at
the time of such proceedings.
3 Code § 19.2-295.1 provides, in pertinent part:
In cases of trial by jury, upon a finding
that the defendant is guilty of a felony, a
separate proceeding limited to the

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the second.
In construing Code § 1-16, the Virginia Supreme Court has
held that the "procedural provisions of the statute in effect on
the date of trial control the conduct of trial insofar as
practicable." 	Smith v. Commonwealth, 219 Va. 455, 476, 248
S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979).
Code § 19.2-295.1 does not convey a substantive right. 	Cf.
Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638-39
(1994) (twenty-one day transfer period for juveniles held not to
confer substantive right and is therefore procedural).
Procedural in nature, Code § 19.2-295.1 properly governed the
second trial and permitted bifurcating the trial and sentencing
proceedings. 	Accordingly, the trial court did not err in
bifurcating the sentencing proceedings in the appellant's second
trial.
For the foregoing reasons, we reverse the convictions on the
basis of gender discrimination during juror selection and remand
the case for a new trial if the Commonwealth be so advised. 	On
the remaining questions presented, we affirm the trial court's
rulings and judgment.
ascertainment of punishment shall be held as
soon as practicable before the same jury. 	At
such proceeding, the Commonwealth shall
present the defendant's prior criminal
convictions by certified, attested or
exemplified copies of the record of
conviction, including adult convictions and
juvenile convictions and adjudications of
delinquency. . . .

Affirmed in part,
reversed in part,
and remanded.