Bell v. Commonwealth
Decision Date | 08 August 2017 |
Docket Number | Record No. 1765-16-2 |
Court | Virginia Court of Appeals |
Parties | LARRY JERMAINE BELL v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, Decker and O'Brien
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Jim D. Childress, III (Childress Law Firm, PC, on brief), for appellant.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury convicted Larry Jermaine Bell ("appellant") of distributing cocaine as a third or subsequent offense in violation of Code § 18.2-248(C). Appellant contends that he was denied the right to have his case heard by a jury selected from a fair and impartial panel. He assigns error to the court's failure to strike for cause prospective Juror E.L., a relative of a Commonwealth's witness. Because we find that the court erred in failing to strike Juror E.L. for cause, we reverse appellant's conviction and remand for a new trial.1
Donna Morris, a paid police informant, purchased cocaine from appellant on April 20, 2015. Morris was working with officers from a regional gang task force. Officer Thomas Lewis, the caseagent, testified that he provided Morris with money to buy cocaine, equipped her with concealed recording devices, and ultimately retrieved the cocaine that appellant sold to her.
At trial, Morris testified that she knew appellant through a mutual acquaintance. Morris admitted to using drugs during the months when she conducted controlled purchases of cocaine for the task force. She stated that she contacted appellant prior to April 20 to see if he had any drugs to sell, but she did not pressure him into the transaction. Although appellant did not testify at trial, his counsel asserted in closing argument that Morris coerced him into the sale so that she could "feed her habit" with income from the controlled buys.
During voir dire, the Commonwealth's attorney asked if any of the potential jurors knew the Commonwealth's witnesses. Prospective Juror E.L. responded that he had known Officer Lewis for his entire life, because the officer's father was Juror E.L.'s first cousin.
The court asked Juror E.L.:
The Commonwealth's attorney ("CA") asked the following questions:
The Commonwealth's attorney and appellant's attorney ("AA") then followed up:
Following argument, the court declined to strike Juror E.L. for cause. Juror E.L. was excused pursuant to a peremptory strike and did not hear the case.
On appeal, we "defer[] to the circuit court's determination whether to exclude a prospective juror because that court was able to see and hear each member of the venire respond to questions posed." Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001). "[A] trial court's denial of a motion to strike a juror for cause 'will not be disturbed on appeal unless there has been a manifest error amounting to an abuse of discretion.'" Townsend v. Commonwealth, 270 Va. 325, 329-30, 619 S.E.2d 71, 73 (2005) (quoting Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001)).
Appellant asserts that the court abused its discretion by failing to strike prospective Juror E.L. from the panel because his answers to the questions posed during voir dire did not demonstrate that he could be fair and impartial. A defendant's right to an impartial jury is protected by the United States and Virginia Constitutions, and is reinforced by statute. U.S. Const. amend. VI; Va. Const. art. I, § 8; Code §§ 8.01-357-58; see Rule 3A:14. A juror must be "indifferent to the cause," Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931 (1914), and have the ability to "lay aside . . . preconceived views and render a verdict based solely on the law and evidence," Cressell v. Commonwealth, 32 Va. App. 744, 761, 531 S.E.2d 1, 9 (2000). "If [a juror] has any interest in the cause, or is related to either party, or has expressed or formed any opinion, or is sensible of any biasor prejudice, he is excluded by the law." Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 60-61, 707 S.E.2d 27, 30 (2011) (quoting Spangler, 116 Va. at 996-97, 83 S.E. at 931).
"[T]he Constitution does not require specific procedures or tests for determining the impartiality of a jury." Morva v. Commonwealth, 278 Va. 329, 341, 683 S.E.2d 553, 560 (2009). However, "[b]y ancient rule, any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused." Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).
Here, the potential juror was related to a witness for the Commonwealth, Officer Lewis. The Supreme Court has held that "a juror's relationship to . . . a police-officer witness does not require per se dismissal of that juror from the venire . . . if the trial court is satisfied that the juror can set aside considerations of the relationship and evaluate all the evidence fairly." Lilly v. Commonwealth, 255 Va. 558, 570, 499 S.E.2d 522, 531 (1998). However, "[e]vidence of the requisite qualifications for impartial service must emanate from the juror, unsuggested by leading questions." Gosling v. Commonwealth, 7 Va. App. 642, 646-47, 376 S.E.2d 541, 545 (1989).
Juror E.L. initially indicated that his familial relationship with the Commonwealth's witness would affect his ability to be fair and impartial. After the Commonwealth attempted to rehabilitate him, Juror E.L. agreed that he would listen to the evidence "with an open mind," but was non-responsive to the question about giving undue...
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