Burton v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: OPINION BY JUDGE FRANK K. FRIEDMAN
• Citation: Burton v. Commonwealth, 85 Va.App. 408, 917 S.E.2d 575 (Va. App. 2025)
• Docket Number: Record No. 0609-24-2
• Decision Date: 22 July 2025
• Parties: Benjamin Lawrence BURTON v. COMMONWEALTH of Virginia

85 Va.App 408

917 S.E.2d 575

Benjamin Lawrence BURTON

v.COMMONWEALTH of Virginia

Record No. 0609-24-2

Court of Appeals of Virginia, Richmond.

July 22, 2025

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, Frederick G. Rockwell, III, Judge Designate

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Susan Hallie Hovey-Murray, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge Friedman and Senior Judge Clements

OPINION BY JUDGE FRANK K. FRIEDMAN

During voir dire a prospective juror gave multiple responses that suggested inherent bias against the accused; the trial court then asked the potential juror: “do you agree with following the [c]ourt’s instructions in reaching a verdict?” The prospective juror answered the court’s question affirmatively. This case raises the question of whether that affirmative assurance was sufficient to establish the juror as impartial.

The defendant, Benjamin Lawrence Burton, moved to strike the juror for cause.¹ The trial court denied the motion, and Burton utilized a peremptory strike to remove the juror from the proceedings. Thereafter, the circuit court upheld the jury’s conviction of Burton for possession of a firearm by a convicted felon. We find the circuit court erred by not striking the potential juror for cause and thus reverse and remand for a new trial.

BACKGROUND²

Events leading to Burton’s arrest

On the evening of March 29, 2022, Dietrick Christian and his wife heard knocking at their front door. Christian answered the door, and Burton informed him that he had come to Christian’s home because of a conflict with Christian’s youngest son. During this discussion on the Christians’ front porch, Burton pulled what appeared to be a firearm out of his waistband, and “flashed” it. Christian described the item Burton flashed from his waistband as a “silver” weapon “with black trim.”

Before leaving, Burton asked Christian to contact his son so that they could “figure things out.” After Burton left, Christian called his son and asked him to come home; his son complied and returned to the residence shortly after the phone call. Christian testified at trial that about 45 minutes to an hour after Burton left the first time, Burton knocked on his door again and asked Christian to tell his son to come outside.

Christian was “skeptical” about the request, but he asked his son to venture out to the porch anyway. After the son reached the porch, Burton approached him, pulled his shirt up and flashed the alleged firearm, stating that “if you want to act like a mother fucker gangster then I’ll show you how gangster is.” Christian banged on the door to get the attention of his older son and son-in-law in the house, both of whom raced outside to the front porch.

Officers Collin Webb and Christopher Peterson were both called to the Christian residence based upon a reported disturbance with a weapon. When police arrived at the Christians’ home, Burton “took off.” Peterson viewed security footage of the altercation taken from a camera on the Christians’ porch and identified Burton as the suspect. Although the officers present at the scene canvassed the area, they failed to recover a firearm. A K9 unit called to the scene also failed to detect any weapon.

The officers eventually located Burton and returned him to the scene of the altercation; Peterson spoke to Burton and searched him for weapons, but did not find any. Burton initially denied possessing a firearm but when Peterson confronted Burton about the surveillance video, Burton stated to Peterson, “if you got video of that, then I’m guilty.” Burton also stated that he knew he was not supposed to possess a firearm.

Trial court proceedings

During voir dire, the Commonwealth asked whether any prospective jurors had “bias or prejudice” either “for or against the Commonwealth or the defendant.” Juror P.³ responded affirmatively. In response to further questioning, he stated that he understood Burton was presumed innocent and that the Commonwealth bore the burden of proving guilt beyond a reasonable doubt. When asked whether any jurors felt they could not be fair to either party, Juror P. answered in the affirmative. In response to a question about whether any juror or their family members had been victims of a crime, Juror P. stated that his uncle had been murdered and the perpetrator was convicted. When asked whether that experience caused him to harbor negative feelings toward law enforcement, Juror P. said it did not.

Later, Burton asked if any of the jurors had experience with firearms, either professionally or as a hobby. Juror P. said he owned “several” firearms. He also asserted that he had “strong feelings” about the illegal possession of firearms, adding that “illegal ownership of firearms or firearms that are illegally possessed are the fruit of our problems.” When Burton asked whether any jurors believed the Commonwealth’s burden of proof should be higher or lower just because someone is accused of a firearm offense, Juror P. did not respond one way or the other.

Burton then asked whether any jurors believed that, because a defendant had a prior felony conviction, he was more likely to have committed the offenses in this case. Three prospective jurors (including Juror P.) answered yes. Expanding on his answer, Juror P. admitted he had a “slight bias.” Right after Juror P. admitted having a slight bias, the circuit court, itself, interjected in the voir dire and asked Juror P., “[d]o you agree with following the [c]ourt’s instructions in reaching a verdict?” Juror P. replied, “I do.” The court continued, “[a]nd that is not an instruction you’ll receive in the—the evidence you receive in court is what you base your decision on.”

At the end of voir dire, Burton moved to strike Juror P. for cause, citing his uncle’s murder, his preconceived notions on firearm ownership, illegal guns, and related statements. The Commonwealth objected, arguing, “[h]e told the Court in response to the Court’s question that he can be fair and impartial and that would not—.” The circuit court interrupted, responding, “Yes, that’s why I asked him the question.” The court then denied the motion “[b]ecause he answered my question and he said he would follow the law.”

At the conclusion of the Commonwealth’s case, Burton made a motion to strike, arguing there was inadequate evidence to demonstrate the weapon depicted in the surveillance video and photographs was an instrument designed to expel a projectile via explosion—as required by the governing statute. The court denied the motion. At the close of the evidence, the circuit court partially granted Burton’s motion to strike, lowering the charge to possession of a firearm by a non-violent felon.⁴ The jury convicted Burton.

Following his conviction, Burton challenged the verdict. Burton argued that the verdict should be set aside due to the circuit court’s refusal to strike Juror P. for cause, and that the trial court impermissibly attempted to rehabilitate Juror P. Burton further contended there was insufficient evidence that he possessed a firearm; he argued the evidence only showed that he possessed an object which appeared to be a firearm. The circuit court denied the motion.

On appeal, Burton argues the circuit court erred when it failed to strike Juror P. for cause. He also argues the court erred when it denied his motion for a mistrial,⁵ and when it admitted certain testimony regarding the object he was carrying. He further asserts that the court erred by granting the Commonwealth’s proposed jury instruction on the object’s appearance, by rejecting his challenge to the sufficiency of the evidence, and by imposing an impermissible suspended sentence and term of probation.

ANALYSIS

I. The Circuit Court Erred When it Failed to Grant Burton’s Motion to Strike Juror P. for Cause

[1-3] “Every defendant has the right to trial by an impartial jury.” Harvey v. Commonwealth, 76 Va. App. 436, 455, 882 S.E.2d 499 (2023). “It is the duty of the trial court, through the legal machinery provided for that purpose, to procure an impartial jury to try every case.” Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199 (1976) (citing Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388 (1931)). “In the criminal context, it is well-settled that a trial court commits ‘prejudicial error’ if it ‘force[s] a defendant to use peremptory strikes to exclude a venire[person] from the jury panel if that person is not free from exception.’ ” Roberts v. CSX Transp., Inc., 279 Va. 111, 117, 688 S.E.2d 178 (2010) (quoting Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71 (2005)). Our Supreme Court explained in Breeden v. Commonwealth, 217 Va. 297, 227 S.E.2d 734 (1976), that forcing a defendant to use a peremptory strike to remove a biased juror is not harmless error, because a criminal defendant “has a right to an impartial jury drawn from ‘a panel [of twenty] free from exceptions.’ ” Id. at 300, 227 S.E.2d 734 (quoting former Code § 8-208.19).⁶

[4, 5] “[T]he test of impartiality is whether the venireperson can lay aside [his or her] preconceived views and render a verdict based solely on the law and evidence presented at trial.” Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61, 707 S.E.2d 27 (2011) (quoting Cressell v. Commonwealth, 32 Va. App. 744, 761, 531 S.E.2d 1 (2000)). Even so, “[i]t is not possible to apply definite rules to serve as a test in all cases as to the competency of jurors, and each case must be determined under its own facts and circumstances.” Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262 (1940).

A. Precedent Dealing with Clarifying and Identifying Juror Bias as well as Rehabilitation of Prospective Jurors

[6, 7] Our case law demonstrates that a circuit court has significant discretion in conducting voir dire; an underlying question of juror impartiality is one of fact, and the...