Lovos–rivas v. Commonwealth of Va..

• Decision Date: 29 March 2011
• Docket Number: Record No. 0356–10–2.
• Citation: 707 S.E.2d 27,58 Va.App. 55
• Court: Virginia Court of Appeals
• Parties: Carlos LOVOS–RIVASv.COMMONWEALTH of Virginia.

58 Va.App. 55

707 S.E.2d 27

Carlos LOVOS–RIVAS

v.COMMONWEALTH of Virginia.

Record No. 0356–10–2.

Court of Appeals of Virginia, Richmond.

March 29, 2011.

Ronald Hur, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: PETTY and BEALES, JJ., and COLEMAN, S.J.BEALES, Judge.

Carlos Lovos–Rivas (appellant) was convicted of one count of forcible sodomy, in violation of Code § 18.2–67.1,¹ and one count of aggravated sexual battery, in violation of Code § 18.2–67.3. On appeal, appellant argues that the trial court committed manifest error when it denied his motion to exclude all but seven of the remaining prospective jurors during voir dire. Disagreeing with appellant's argument, we affirm the convictions for the following reasons.

I. Background

At the outset of voir dire, the trial court asked the prospective jurors several questions. Their responses indicated that they had no personal interest in the trial, that they had obtained no information about the alleged offenses, that they had not expressed any opinion about appellant's guilt or innocence, and that they were unaware of any bias they would have toward appellant or the Commonwealth. The prospective jurors indicated that they understood that appellant was presumed innocent, that appellant did not have to produce any evidence or testify in his own behalf, and that the Commonwealth had to prove appellant's guilt beyond a reasonable doubt. With the exception of one prospective juror, who was excluded from the venire by the trial court, all of the prospective jurors indicated that they knew of no reason why they could not be fair and impartial to the parties or why they could not decide the case based solely on the court's legal instructions and the evidence that would be presented during the trial.

Next, the prosecutor asked whether any of the prospective jurors, or their family members or friends, had been sexually assaulted. Several of the prospective jurors responded in the affirmative. These persons were then asked individually whether they could render a fair and impartial verdict in light of their past experiences with sexual assaults. Some of these prospective jurors said that they could not render a fair and impartial verdict—and, consequently, were stricken for cause—while others indicated that they could be fair and impartial.

Appellant's trial counsel then examined the prospective jurors. Noting that some of the prospective jurors had children and others had young relatives, defense counsel asked, “[W]ould it be fair to say that if your cousin, child, niece, nephew, came up to you, tugged on your arm, and said that person did something to me, you would automatically believe the child?” According to the trial transcript, “several jurors” answered in the affirmative, while five prospective jurors indicated that they would not “automatically” believe the child.

Rephrasing the question, defense counsel asked, “[I]f an unknown child came to you and said that person did something to me, and that person happens to be an adult, would you be prone to believe that child?” Again, “several jurors” answered in the affirmative. One prospective juror responded in the negative.

Defense counsel then asked, “[W]ould you be partial in believing the child and even to the point where if the adult comes up and says it didn't happen that you would not believe the adult?” This question received no response from the prospective jurors.

Finally, defense counsel asked, “Would you believe the child—and this is the unknown child—even in a situation where the adult says it didn't happen?” According to the trial transcript, “several jurors” again responded in the affirmative, while seven prospective jurors responded in the negative—Juror Numbers 36, 14, 20, 1, 8, 11, and 48. Defense counsel asked no more questions on this subject.

At the conclusion of voir dire, appellant moved to strike “the entire venire with the exception of” Juror Numbers 36, 14, 20, 1, 8, 11, and 48. Defense counsel explained:

The specific issue [is] counsel asked the question if your child came up to you and said this, would you believe the child, predominantly all of them answered yes. I asked if an unknown child came up to you and said this happened and the adult later said it did not happen, would you be prone to believe the child, and the answer, again, for the most part was yes. I asked them the followup question of would you be partial to the child, and, again, the answer was yes.

The only ones who answered in the negative were thirty-six, fourteen, twenty, one, eight, forty-eight, and eleven.

The trial court denied appellant's motion, noting that the venire “has stated that it can be fair and impartial, that it clearly stated its understanding that Mr. Lovos–Rivas stands not guilty at this stage of the proceeding, [and] that the Commonwealth carries the burden of proof to prove beyond a reasonable doubt.” The trial court found that the venire, as it was constituted at that point in the proceeding, “can indeed be fair and impartial.”

II. Analysis

Appellant argues that the trial court committed reversible error when, near the conclusion of voir dire, it denied his motion to strike for cause the vast majority of the remaining prospective jurors. Appellant contends that these prospective jurors (all but seven of the remaining members of the venire) “disclosed their bias in being partial toward the testimony of a child over that of an adult.” Consequently, appellant claims, he was denied his right to a fair and impartial jury. See Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 736–37 (1976).

“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, 200 (1976). Therefore,

[t]he court and counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may introduce any competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case.

Code § 8.01–358; see Rule 3A:14. If a prospective juror “does not stand indifferent to the cause, he is not competent. If he has any interest in the cause, or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or prejudice, he is excluded by the law.” Spangler v. Ashwell, 116 Va. 992, 996–97, 83 S.E. 930, 931 (1914).

However, “ ‘[i]t is not uncommon to discover during voir dire that prospective jurors have preconceived notions, opinions, or misconceptions about the criminal justice system, criminal trials and procedure, or about the particular case.’ ” Cressell v. Commonwealth, 32 Va.App. 744, 761, 531 S.E.2d 1, 9 (2000) (quoting Griffin v. Commonwealth, 19 Va.App. 619, 621, 454 S.E.2d 363, 364 (1995)). “The opinion entertained by a juror, which disqualifies him, is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.” Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 91 (1980) (citation omitted and emphasis added). Thus, “ ‘the test of impartiality is whether the venireperson can lay aside the preconceived views and render a verdict based solely on the law and evidence presented at trial.’ ” Cressell, 32 Va.App. at 761, 531 S.E.2d at 9 (quoting Griffin, 19 Va.App. at 621, 454 S.E.2d at 364).

Given that the trial court is “ ‘able to see and hear each member of the venire respond to questions posed’ ” during voir dire, it “ ‘is in a superior position to determine whether a prospective juror's responses during voir dire indicate that the juror would be prevented from or impaired in performing the duties of a juror as required by the court's instructions and the juror's oath.’ ” Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005) (quoting Green v. Commonwealth, 262 Va. 105, 115–16, 546 S.E.2d 446, 451 (2001)). Juror impartiality is a question of fact, see Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985), and a trial court's decision to seat a juror is entitled to great deference on appeal, see McGill v. Commonwealth, 10 Va.App. 237, 241, 391 S.E.2d 597, 600 (1990). Accordingly, the decision to retain or exclude a prospective juror “will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.” Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001).

In determining whether the trial court should have excluded the prospective jurors challenged by appellant, this Court must consider the “ ‘entire voir dire, not just isolated portions.’ ” Juniper v. Commonwealth, 271 Va. 362, 401, 626 S.E.2d 383, 408 (2006) (quoting Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004)). However, in this case, appellant relies on an isolated portion of voir dire in making his argument that the trial court should have excluded all but seven remaining prospective jurors.

During this portion of voir dire, defense counsel posed a few questions about the prospective jurors' inclination to believe a child's complaint of sexual abuse. Defense counsel's final question on this subject asked if the prospective jurors would believe the claim of an “unknown child” even if an adult denied that sexual abuse...