Bethea v. Commonwealth

831 S.E.2d 670

James Willie BETHEA

v.COMMONWEALTH of Virginia

Record No. 180527

Supreme Court of Virginia.

AUGUST 28, 2019

Peter Francescon, Manassas (J. Andrew Taylor ; Boyce, Leahy & Francescon; Nichols, Zauzig, Sander, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

A jury convicted James Willie Bethea of first-degree murder. On appeal, Bethea challenges that conviction by claiming that the trial court violated the holding of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by permitting the prosecutor to exercise a racially motivated peremptory strike of an African-American juror. The trial court found that the strike was not racially motivated, and the Court of Appeals affirmed, as do we.

I.

A grand jury indicted Bethea for the first-degree murder of Charles Adkins. Bethea’s first trial ended in a mistrial because the jury could not reach a verdict. During the jury selection for Bethea’s retrial, the trial court, the Commonwealth, and the defense asked a series of voir dire questions of the jury panel.

Throughout the questioning by the Commonwealth, the transcript recorded several different types of responses from the 23-member venire panel. The transcript sometimes recorded what appears to be the panel’s collective verbal answers, particularly to the prosecutor’s general questions that suggested a yes-or-no right answer. See J.A. at 12-13, 16-17, 27-29, 31-32 ("THE JURY PANEL: Yes."); id. at 16-17, 20-21, 27-28, 30, 32, 34 ("THE JURY PANEL: No."). The transcript is unclear, however, whether the court reporter was verifying that she personally had heard an audible "Yes" or "No" from each of the 23 venire members or, perhaps just as likely, that she was simply noting her interpretation of an amalgam of their verbal and non-verbal responses to questions that suggested a particular answer.

The prosecutor indicated once that jurors had raised their hands to communicate an affirmative answer to a question. See id. at 13 ("Has anyone here served on a jury before? A couple of hands. Keep them up for me for a second."). In several other places, the transcript recorded a non-answer to questions by the prosecutor: "THE JURY PANEL: No response." Id. at 16, 18, 19, 20, 33. And, on several other occasions, no response at all is again recorded for a pending question, but the prosecutor, apparently prompted by a nod or a raised hand, specifically identified a juror who had offered a personal response to the question. See id. at 17, 18, 22, 32-33. At one point during voir dire, the trial court called upon a specific juror by name and asked, "you heard the questions that I asked earlier. I didn’t hear you raise your hand or see you raise your hand. Do you have any issues at all that you need to bring forward to the Court?"

Id. at 26-27. The transcript thereafter stated, "(No audible response.)." Id. at 27.

After voir dire, both sides exercised their peremptory strikes. See generally 5 Ronald J. Bacigal, Virginia Practice Series: Criminal Procedure § 16:6, at 479 (2018-2019 ed.) ("In felony cases, the Commonwealth and the defendant have four peremptory challenges each ...."). The Commonwealth used two of its four peremptory strikes on African-American jurors. Bethea’s trial counsel made a Batson challenge to the Commonwealth’s exclusion of both African-American jurors. He stated that he had become "aware of a conversation" between his law partner, "Mr. Leahy," and the prosecutor that had occurred after the first trial. J.A. at 37. In this conversation, the prosecutor reportedly relayed to Leahy that "the jury was nine-to-three to convict, and the three people who voted to acquit were black and then something about the Black Lives movement." Id.¹

In response, the prosecutor said that, with respect to the stricken juror at issue in this appeal,² she had struck the juror because the juror "didn’t answer all the questions and she appeared emotional at times." Id . at 38. "And when I asked if everyone would promise to consider all the evidence, and if they would raise their hand to do so," the prosecutor explained, "she didn’t raise her hand." Id. Bethea’s counsel replied: "I don’t think that amounts to anything, Your Honor. I mean, I was watching her. I didn’t see her getting particularly emotional during the voir dire. I was scanning the jury for people to raise their hands. I don’t know what that amounts to." Id. Bethea’s counsel did not, however, contend that the prosecutor was mistaken about the specific voir dire question that she had recalled asking or about the response that she had remembered the juror making to that question.

During the colloquy with counsel, the trial court stated that it did "recall when [the prosecutor] made the request, when the jury was to raise the hand." Id. at 40. But the court stated that it "did not scan the jury" and "did not see at that time that anybody did not raise their hand." Id. Based upon its own recollection and counsel’s arguments, the court denied the Batson motion, holding that the prosecutor’s explanations "are race-neutral reason[s] for making these particular peremptory strikes, and I’m going to allow them to go forward as stricken." Id. at 41. The court also observed that, even following the Commonwealth’s use of two of its four peremptory strikes on African-American jurors, "[t]here are other African-Americans on the jury." Id. at 40.

The case proceeded to trial, with the Commonwealth presenting evidence of "Bethea’s DNA" on the victim’s "fingernails," the victim’s blood stain on the floor mat of "Bethea’s vehicle," and a pattern of "inconsistent statements" made by Bethea to an investigator. Appellant’s Br. at 5. In his case-in-chief, Bethea only called his wife to the witness stand to support his alibi defense. The jury found Bethea guilty of first-degree murder and sentenced him to life imprisonment.

Nearly seven months after the trial, Bethea’s counsel moved the court to set aside the verdict based upon his earlier Batson challenge. At a hearing on the motion, Bethea’s counsel conceded that "[t]he Commonwealth gave a race-neutral reason, Your Honor." J.A. at 60. The problem, counsel argued, was that the prosecutor’s recollection was mistaken about the question that she had asked and to which the juror had not responded:

"The Commonwealth, at the time, said, ‘And when I asked if everyone would promise to consider all the evidence and if they would raise their hand to do so, she didn’t raise her hand.’ " Id. "Now that question was not asked," Bethea’s counsel asserted, "and that response was not called for." Id. at 60-61. Bethea’s counsel acknowledged, however, that "during voir dire the Commonwealth did ask for a show of hands but it was to a different question regarding motive." Id. at 61. The question regarding motive asked jurors to raise their hand if "anyone here ... has a problem with th[e] law" that does not require the Commonwealth to prove motive for murder. Id. The transcript reflected "[n]o response" to that question. Id. at 20.

Bethea’s counsel affirmatively conceded that, at the time of his Batson motion, he had not objected to the Commonwealth’s peremptory strike on the ground that the prosecutor’s recollection was mistaken. "We the defense did not object to this at the time .... [W]e didn’t stand up and say well, Your Honor, that question was never asked." Id. at 66. As counsel viewed it, "if the defense had objected and said Your Honor, that question was never asked," counsel "suspect[ed] the Commonwealth’s response would have been at that time yes, it was." Id. at 67.

Bethea’s counsel argued that "there are only two possibilities" for why the transcript did not reflect the prosecutor’s proffered race-neutral reason — either the prosecutor had made a mistake and "didn’t remember properly what happened," or her proffered reason had "deliberately misrepresented the facts to the [c]ourt." Id. at 66-67. Bethea’s counsel then emphatically stated: "I would like to state that in both the motion and in the argument today the defense was very careful in the words it used, went out of the way with great lengths with the way we phrased that, to avoid as much as possible implying any deliberate fraud." Id. at 73. "In the motion," Bethea’s counsel told the trial court, "you will not see words like misrepresentation or false[hood] even though misrepresentation or a falsehood could be innocently made just as well as deliberately made. The defense didn’t even want to come anywhere close to implying that." Id.

In response, the Commonwealth argued that ambiguities in the transcript made it difficult to respond to Bethea’s argument because it "ignores ... the non-verbal context in which these questions were asked." Id. at 70. The transcript, the Commonwealth further argued, did not refute the prosecutor’s recollection that the juror had not specifically responded to all of the questions. In one of the questions from the prosecutor, she had asked the jurors for a show of hands if they had a "problem" with their duty to "follow the law" and not to require the Commonwealth to "prove something the law says we don’t have to prove." Id. at 20. She subsequently asked whether the jurors were "comfortable considering circumstantial evidence." Id. at 31. The Commonwealth, in response to Bethea’s motion to set aside the verdict, explained what the transcript had not fully disclosed:

What is lost in this latter portion of the transcript is the context in which the question was asked. The Commonwealth, having already asked members of the panel to raise their hands in response to a question, raised her own hand in a demonstrative way and the jurors followed suit . There was more than one occasion during the course of voir dire where the members raised their hand, despite only one instance being clear through the

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