Blevins v. Com., Record No. 031022.

• Docket Nº: Record No. 031022.
• Citation: 590 S.E.2d 365, 267 Va. 291
• Case Date: January 16, 2004
• Court: Supreme Court of Virginia

590 S.E.2d 365
267 Va. 291

Lawrence Kevin BLEVINS
v.
COMMONWEALTH of Virginia

Record No. 031022.

Supreme Court of Virginia.

January 16, 2004.

590 S.E.2d 366

Robert D. Finch, Jr., Richmond, for appellant

Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, and LEMONS, JJ., and COMPTON and STEPHENSON, S.JJ.

OPINION BY Senior Justice ROSCOE B. STEPHENSON, JR.

The issue in this appeal involves a trial court's refusal to declare a mistrial based on alleged juror partiality.

I

In a jury trial in the Circuit Court of the City of Roanoke, Lawrence Kevin Blevins was convicted of object sexual penetration, malicious wounding, and abduction with intent to defile. Blevins was sentenced to a total prison term of life, plus 40 years.

Thereafter, Blevins appealed his convictions to the Court of Appeals. On April 29, 2003, the Court of Appeals issued an opinion affirming the convictions. Blevins v. Commonwealth, 40 Va.App. 412, 579 S.E.2d 658 (2003). We awarded Blevins an appeal, limited to the assignment of error as follows: "The trial court erred in overruling the [defendant's] motion for mistrial based on juror untruthfulness during voir dire."

II

A

A brief summary of the facts relating to the crime will suffice. On the evening of January 16, 2001, the victim had finished her work and was walking to her automobile, parked in a parking garage in the City of Roanoke. She was alone, and, as she put her key into her car door lock, "all hell broke loose." At that moment, the victim came face to face with the accused, who began to strike her with his fists. The accused told the victim that, if she would cooperate by performing a sex act with him, he would stop hitting her. The beating stopped, and the accused unzipped the victim's pants and inserted a finger into her vagina. He also fondled the victim's breasts.

Several minutes later, and before the accused could rape the victim, a car approached the victim's vehicle. When the approaching car stopped, the victim was able to escape to it, and the accused fled the scene.

B

The facts pertaining to the issue in this appeal are as follows. During voir dire, the trial court asked the prospective jurors whether "any of you or any members of your immediate family [have] ever been the victim of a serious offense?" All members of the venire answered negatively.

Immediately following the conclusion of Blevins' trial, Deputy Jessie W. Roberts encountered juror Bonnie Divers in the jury room. Divers told Roberts that she was waiting for someone to walk with her to her car, which was parked in a lot several blocks away. Roberts offered to escort Divers to her car. Roberts informed Divers that, if she had parked her car in a nearby parking garage, she would have been reimbursed for her parking expenses. Divers replied that she did not park in the parking garage because, 13 to 15 years previously, she had

590 S.E.2d 367

been the victim of an armed robbery in a parking garage

Thereafter, Roberts informed the Commonwealth's Attorney of this conversation, and the Commonwealth's Attorney reported the information to defense counsel. Six days after the trial, Blevins filed a motion for a mistrial based upon Divers' failure to reveal that she had been the victim of a serious offense.

On September 4, 2001, the trial court conducted a hearing on the motion. At the hearing, the trial court asked Divers why she had not answered affirmatively when the court had asked, during voir dire, whether any prospective juror had been the victim of a serious offense. The following exchange then occurred:

DIVERS: Obviously, I didn't hear you or I didn't understand. I would have raised both hands up to have not been on this trial. I mean I don't like excitement. I would have let you known, had I heard you and understood what you were asking.

THE COURT: So you didn't deliberately withhold that information?

DIVERS: Oh, no, no, definitely not. This is not my thing. I don't like excitement.

THE COURT: Now, the next question is: Because you either didn't hear, or misunderstood, or didn't understand, having not answered that question, did the prior bad experience you went through in any way affect your ability to fairly and impartially hear Mr. Blevins' case?

DIVERS: Absolutely not; I did my judgment on the evidence and the evidence only. It was nothing personal between nobody, because I don't know anybody here, so why would I want to do something like that. That would be . . . wrong of me, but it had no effect on my decision at all.

Divers further stated, in answer to questions by the Commonwealth's Attorney, that her verdict "was strictly on the evidence, nothing about my personal life." She also said that she was "not bias[ed]."

III

A

In the present case, the post-trial hearing that the trial court conducted on Blevins' motion for a mistrial was the appropriate remedy for allegations of juror partiality. See Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Following the hearing, the trial court rendered a written opinion, finding, inter alia, that...