Carter v. Commonwealth, Record No. 2948-06-4 (Va. App. 2/19/2008), Record No. 2948-06-4.
| Decision Date | 19 February 2008 |
| Docket Number | Record No. 2948-06-4. |
| Parties | SEBASTIAN TRISTAN CARTER, v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of the City of Alexandria, John E. Kloch, Judge.
Lavonda Graham-Williams (Law Offices of Patrick N. Anderson, P.C., on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Senior Judges Willis and Annunziata
Sebastian Tristan Carter (appellant) was convicted following a jury trial of first-degree murder in violation of Code § 18.2-32 and the use of a firearm in the commission of murder in violation of Code § 18.2-53.1.1 Appellant contends the trial court erred in failing to grant his motion to strike three prospective jurors for cause, requiring him to use peremptory strikes to exclude them, thereby violating his constitutional right to a fair and impartial jury trial. Appellant also contends the trial court erred in failing to grant his motion to strike the entire venire, after a bailiff handcuffed him in open court for security reasons during a brief recess called in response to an unrelated disturbance outside the courtroom. He also contends that the trial court erred by failing to give a cautionary instruction to the jury related to the handcuffing incident. Finding no error on the part of the trial court, we affirm the appellant's convictions, but remand to permit the trial court to correct a clerical error in its June 12, 2006 conviction order pursuant to Code § 8.01-428(B).2
"An accused has a constitutional right to [trial by] an impartial jury." Wolfe v. Commonwealth, 265 Va. 193, 211, 576 S.E.2d 471, 481 (2003) . "It is the court's duty to procure an impartial jury." Scott v. Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899, 901 (1986). "In effectuating this guarantee, however, there are no hard and fast rules and each case must be determined on its own set of facts." Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 387, 349 S.E.2d 903, 906 (1986) (citing Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268 (1940)).
[M]embers of the venire must "stand indifferent in the cause." A prospective juror Wolfe, 265 Va. at 211, 576 S.E.2d at 482.
Juniper v. Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383, 408 (2006) (alteration in original).
"On appeal, we give deference to the trial court's decision whether to retain or exclude a venireman . . . ." Moten v. Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251 (1992). "[T]he trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand . . . ." Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987). "'Thus, we review a trial court's decision whether to strike a prospective juror for cause for an abuse of discretion and that ruling will not be disturbed on appeal unless it appears from the record that the trial court's action constitutes manifest error.'" DeLeon v. Commonwealth, 38 Va. App. 409, 412-13, 565 S.E.2d 326, 327 (2002) (quoting Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d 1, 6 (2000)). "In conducting our review, we consider the juror's entire voir dire, not merely isolated statements." Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 (2000).
Appellant contends that the trial court erred in denying his motion to strike prospective juror Pollack for cause. He contends that her responses to questions revealed doubts about her ability to serve impartially.
At the beginning of voir dire, the trial court judge gave preliminary instructions, and asked general questions of the prospective jurors to determine potential bias, including whether any among them had any reason to believe they could not give the appellant a fair and impartial trial based on the evidence they heard. See Code § 8.01-358; Rule 3A:14. The record does not show that Pollack responded to any of those questions. The Commonwealth followed by asking if any of the veniremen were aware of any personal, political, or religious reason, why any could not sit impartially. Two of the prospective jurors, but not Pollack, answered the questions in the affirmative, and were excused.
When appellant's counsel asked the potential jurors if "any of you been victims of crime or had close family or friends who've [been] victims[?]," five jurors responded affirmatively to that question.3 One prospective juror explained she was mugged fifteen years earlier. The trial court granted appellant's motion to strike that juror for cause after she stated that she could "[p]ossibly," but "[n]ot absolutely" be certain that the mugging would not affect her ability to be fair and impartial. Next, Pollack responded that she had been the victim of a robbery some six months earlier. The following exchange then took place:
Then, in response to appellant's somewhat awkward question, "you're fairly certain that there's an element of uncertainty," Pollack answered, "yes." Pollack was not asked any additional questions.
We have previously stated
[t]he proper role for a trial judge is to remain detached from the issue of the juror's impartiality. The trial judge should rule on the propriety of counsel's questions and ask questions or instruct only where necessary to clarify and not for the purposes of rehabilitation. If a trial judge adheres to this role, an appellate court may not set aside the trial judge's determination of a juror's impartiality if the juror's responses, even though conflicting, support that determination.
McGill v. Commonwealth, 10 Va. App. 237, 242-43, 391 S.E.2d 597, 600 (1990) (emphasis added). From our review of the entire voir dire, we cannot conclude that the trial court erred in denying appellant's motion to strike Pollack for cause. Pollack's response to appellant's question of whether she was uncertain she could "give an unbiased and fair hearing" was that she was "fairly certain." The trial court's ability to observe her body language and demeanor, hear her voice inflections, and weigh any hesitancy in her responses, were factors available to the trial court to evaluate in its decision, and are not available to us in a written record. Pope, 234 Va. at 123, 360 S.E.2d at 358. We cannot conclude on appeal from the record presented that the trial court abused its discretion in finding Pollack able to be a fair and impartial juror, and in denying appellant's challenge for cause.
Potential jurors Zent and Holloman lived in the area of Alexandria where the victim's body was found. Each expressed uneasiness about sitting as a juror because of the likelihood of seeing witnesses in their neighborhood after trial. Appellant's counsel explored this expressed concern in a series of questions with both. In response to one such question, Zent responded that living in the neighborhood where the crime took place "doesn't impact my ability to serve on the [j]ury, it certainly impacts my desire to serve on the [j]ury." Similarly, when Holloman was asked if he could give the case a full, fair, and unbiased hearing despite the proximity of his home to the crime scene, Holloman stated, "I could do so, but, as [Zent] pointed out, the desire is not there."4
The trial court denied appellant's motions to strike Zent and Holloman for cause. On appeal, appellant contends that "[a]lthough the prospective jurors thought themselves capable of fairness and impartiality, it was clear that their ability to make a decision about [appellant's] guilt or innocence would be influenced by the concerns they both expressed."
A prospective juror's reluctance to serve on the jury is not a valid basis for disqualification. Calhoun v. Commonwealth, 226 Va. 256, 262, 307 S.E.2d 896, 900 (1983). Their lack of desire to serve on the jury notwithstanding, both Zent and Holloman unequivocally stated that they were capable of serving fairly and impartially as jurors. Our review of the entire colloquy between appellant's counsel with Zent and with Holloman leads us to conclude that the trial court did not abuse its discretion in failing to strike them for cause. The responses of each demonstrated only a reluctance to...
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