Harvey v. Commonwealth
| Decision Date | 24 January 2023 |
| Docket Number | 0723-21-2 |
| Parties | JUSTIN ANDREW HARVEY v. COMMONWEALTH OF VIRGINIA |
| Court | Court of Appeals of Virginia |
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant Judge
Kelsey Bulger, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judge O'Brien and Senior Judge Haley Argued at Richmond, Virginia
Justin Andrew Harvey appeals his convictions for two counts each of statutory burglary, unlawful filming, and aggravated sexual battery, as well as single counts of malicious wounding and rape, in violation of Code §§ 18.2-51, -61, -67.3 -90, and -386.1. He challenges the trial court's refusal to exclude a juror for cause, the denial of his mistrial motion, and four different evidentiary rulings. For the following reasons, we hold that the trial court did not commit reversible error, and we affirm the appellant's convictions.
BACKGROUND[1]
The appellant was convicted of crimes committed against three young women-E.A., H.H., and K.J.-in the area of Virginia Commonwealth University (VCU) in Richmond during two separate incidents in May 2018.
On the evening of May 4, twenty-one-year-old female students E.A. and H.H. attended a party. H.H. became drunk, and E.A. helped H.H. return to E.A.'s apartment at about 1:00 a.m. on May 5, where H.H. spent the night. H.H. "passed out" on E.A.'s bed, and E.A. slept on the floor. When the two awoke in the morning, they realized that their clothing had been cut. E.A. noticed a pair of scissors were missing from her bedroom. She then called the police. Police later found the scissors on a windowsill outside her apartment.
H.H. testified at trial that while she was in a "sleepy haze" and "barely aware of [her] surroundings" that night, someone used scissors to cut off her clothing. She was also aware of someone touching her lower back and vagina. She was "still very drunk" and did not open her eyes during the assault. When she woke up in the morning, she was sober enough to realize the significance of the fact that all of her clothing had been cut off, and she told E.A. about it. E.A. then realized that her shorts had been partially cut in the buttocks area.
On the evening of May 5, K.J. had drinks with her coworkers and returned to her apartment at about 3:15 a.m. the next morning. Soon after entering, K.J. realized her front door was open, and then someone knocked her unconscious. She later awoke on her bedroom floor. Although fully dressed when she was knocked out, K.J. was naked when she woke up. She sought help from a neighbor, reported the attack to police, and went to the hospital. K.J. had injuries to her face, including significant swelling and a fractured orbital bone. In addition to treating K.J.'s injuries, hospital staff collected samples for a physical evidence recovery kit.
Police developed the appellant as a suspect in two skirt-lifting incidents not directly related to the offenses against E.A., H.H., and K.J. In September 2018, in the course of the investigation of those incidents, the appellant turned over his cellular telephone to the VCU Police. A VCU detective obtained a search warrant for the phone and delivered that phone to Sergeant Bryan Hixson of the City of Richmond Police Department for forensic investigation. Sergeant Hixon examined the appellant's cell phone and extracted data from it for a limited period of time in proximity to the skirt-lifting incidents.
Subsequently, Richmond detectives obtained a warrant to search the appellant's phone for additional dates, including the dates of the offenses against E.A., H.H., and K.J. That warrant led to the discovery of two videos showing a single perpetrator, the appellant, standing over E.A. and raping H.H. in E.A.'s bedroom on May 5, 2018. Hixson also extracted a third video, which K.J. identified as depicting a portion of the May 6, 2018 attack on her in her apartment. The only part of the filmer appearing in that video is a hand.
Forensic testing established that DNA found on E.A.'s scissors and the exterior back doorknob to her apartment after the May 5, 2018 attack belonged to the appellant. No DNA evidence linked the appellant to the May 6, 2018 attack on K.J., and she initially stated that she did not see her assailant. However, K.J. testified at trial that after the appellant was arrested for other offenses, she saw a photograph of him that triggered her memory. She explained that in response to the photo, she recalled seeing the appellant standing over her at two discrete times during the attack.
At the close of the separate trials for the two sets of crimes, the appellant was convicted of the charged offenses.[2] With regard to the crimes against E.A. and H.H., the appellant was convicted of statutory burglary, aggravated sexual battery of E.A., and unlawful filming and rape of H.H. He was sentenced to a total of 75 years for the felonies and 12 months for the misdemeanor filming offense. With regard to the crimes against K.J., the appellant was convicted of burglary, unlawful filming, malicious wounding, and aggravated sexual battery. He was sentenced to a total of 50 years for the felonies and 12 months for the misdemeanor filming offense. His sentences totaled 125 years for the felonies and 24 months for the misdemeanors.
The appellant challenges his convictions on six grounds. He argues that the trial court: (1) erred by refusing to strike a juror for cause; (2) erroneously overruled his objection and denied his mistrial motion related to the Commonwealth's closing argument; (3) improperly denied his motion to suppress evidence; (4) erroneously admitted evidence of a jail telephone call; (5) incorrectly admitted evidence of other crimes; and (6) improperly excluded an unredacted DNA certificate and related testimony and argument.
We turn first to the appellant's argument that the trial court erroneously refused to strike Juror 19 for cause in his trial for the offenses against E.A. and H.H. He contends that the voir dire showed Juror 19 was not indifferent to the cause and was not rehabilitated and, consequently, should have been struck for cause.
During voir dire, the prosecutor asked the jurors whether they would be able to watch a video showing the rape of the unconscious victim. Juror 19 said that she had a friend who was raped while unconscious. Following additional questioning, defense counsel objected to the seating of Juror 19. The trial court denied the motion to strike her for cause.
"[A] trial court's denial of a motion to strike a juror for cause 'will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.'" Townsend v. Commonwealth, 270 Va. 325, 329-30 (2005) (quoting Barrett v. Commonwealth, 262 Va. 823, 826 (2001)). An underlying question of juror impartiality is one of fact, and the trial court's determination on the subject is "'entitled to great deference on appeal'" unless "plainly wrong or unsupported by the record." Huguely v. Commonwealth, 63 Va.App. 92, 121, 127 (2014) (quoting Lovos-Rivas v. Commonwealth, 58 Va.App. 55, 61 (2011)). In addressing whether the juror should have been struck for cause, the appellate court must consider the juror's "entire voir dire, not just isolated portions." Juniper v. Commonwealth, 271 Va. 362, 401 (2006) (quoting Jackson v. Commonwealth, 267 Va. 178, 191 (2004)).
Every defendant has the right to trial by an impartial jury. U.S. Const. amend. VI; Va. Const. art. I, § 8; see Code §§ 8.01-357, -358. Exclusion may be required if a juror has "formed any opinion[] or is sensible of any bias or prejudice." Keepers v. Commonwealth, 72 Va.App. 17, 42 (2020) (quoting Lovos-Rivas, 58 Va.App. at 61). A manifest error in refusing to strike a juror "occurs when the record shows that a prospective juror cannot or will not lay aside his or her preconceived opinion." Taylor v. Commonwealth, 67 Va.App. 448, 456 (2017). However, "a trial judge who personally observes a juror, including the juror's tenor, tone, and general demeanor, is in a better position than an appellate court to determine whether a particular juror should be str[uck]." Teleguz v. Commonwealth, 273 Va. 458, 475 (2007).
Here, the trial court found that Juror 19 could be impartial, and that finding is entitled to deference on appeal unless plainly wrong. See Huguely, 63 Va.App. at 127. Additionally, the voir dire as a whole supports the trial court's finding of impartiality. Juror 19 explained that she had a close friend who had been raped. She initially stated that she would "be fine" considering the rape charge fairly "without a video" but that "with a video" and in light of the appellant's defense of consent, she was "not sure [she] could do that fairly." In response to further questioning, Juror 19 responded that she could evaluate evidence in addition to the video but would probably be "sway[ed]" by the video.
Additional voir dire blended several subjects, including the juror's possible bias and her thoughts about the persuasive value of video evidence. The juror also volunteered what she knew about the law of unconsciousness and consent. The trial court's exchange with her constituted merely clarifying the juror understood that, after receiving the court's instructions on the law of consent, she would be free to consider all of the evidence and would need merely to "be open to consider" the defense. Juror 19 replied that s...
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