Perez v. Com.

• Citation: 580 S.E.2d 507,40 Va. App. 648
• Decision Date: 20 May 2003
• Docket Number: Record No. 0180-02-4.
• Court: Virginia Court of Appeals
• Parties: Jorge Isaac Samudio PEREZ, s/k/a Jorge Samudio-Perez v. COMMONWEALTH of Virginia.

580 S.E.2d 507

40 Va. App. 648

Jorge Isaac Samudio PEREZ, s/k/a Jorge Samudio-Perez v. COMMONWEALTH of Virginia.

Record No. 0180-02-4.

Court of Appeals of Virginia, Alexandria.

May 20, 2003.

Christopher C. Finch (Pelton, Balland, Young, Demesky, Baskin & O'Malie, P.C., on brief), Arlington, for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, ANNUNZIATA and AGEE,¹ JJ.

ANNUNZIATA, Judge.

A jury convicted Samudio-Perez of rape and sentenced him to serve six years in the penitentiary.² On appeal, he contends the trial judge erred in denying his midtrial motion for a mistrial arising from a juror's prior relationship with one of the detectives assigned to the case. For the following reasons, we affirm.

Background

On appeal, we view the facts in the light most favorable to the Commonwealth, the party prevailing below, together with all reasonable inferences fairly deducible therefrom. See Ortega v. Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000). Viewed accordingly, the evidence shows that Walter Sorto was called as a prospective juror for Samudio-Perez's trial in October 2001. The prosecutor asked the prospective jurors if any of them or a family member had been the victim of a sexual assault. Sorto told the court his nephew had assaulted his daughter four years earlier. After the prosecution informed Sorto the case did not involve sexual assault within a family, Sorto indicated he could be fair to both sides. Defense counsel did not ask Sorto any questions and did not move to strike him for cause. The court impaneled the jury, including Sorto, and counsel gave opening statements. After a short recess, the judge discovered that a detective in the case, David E. Moore, had investigated the case involving Sorto's daughter.³ Sorto had not recognized Detective Moore during opening statements. The judge brought Sorto into the courtroom and counsel questioned him about his relationship with Detective Moore:

THE COURT: Mr. Sorto, over break, it came to my attention that Detective Moore, who is involved with this case, may have been involved with your daughter's case.

MR. SORTO: That's right.

THE COURT: Has that come to your recollection?

MR. SORTO: I was actually — I didn't see him sitting right there. But later on, when we were talking, I saw him right there.

THE COURT: Now that you've come to that realization that he is the same one, how does that affect your feeling about the case?

MR. SORTO: It doesn't really affect me at all. I've been through this. He was professional.

THE COURT: Did you talk to Detective Moore in the course of the investigation of your daughter's case?

MR. SORTO: Yes, I did.

MS. SWART: Mr. Sorto, in your dealings with Detective Moore — we're not asking if you liked him or disliked him as a person or anything like that. In this case, as I told you in opening statements, he's going to be testifying as to the entire interview with this defendant. Are you going to be able to set aside your personal experience with Detective Moore with your daughter's case and listen to the whole statement and assess his credibility, what he says, on what he says here today?

MR. SORTO: Basically, whatever comes here right now — comes up right now is basically what I have to decide. I'm not going to through [sic] anybody's judgment.

MS. SWART: That's all the questions I have.

THE COURT: All right, Mr. Finch. Do you have any questions?

MR. FINCH: One or two. Sir, you had a phone sting that was done in your house with Detective Moore?

MR. SORTO: That's right.

MR. FINCH: He conducted it?

MR. SORTO: That's right.

MR. FINCH: So you got to know each other a little bit. If it was his word against somebody else's, wouldn't you favor Mr. Moore's word?

MR. SORTO: Not at all. It comes to my mind that if I'm here, as she mentioned right now, just basically whatever is proved or any other type problems that comes up [sic], that's basically it. See, I don't see Mr. Moore as somebody who's going to interrupt [sic] this kind of situation. I mean, he's been through my case and I know him basically for that particular occasion, but that's it.

MR. FINCH: But you were favorably impressed with him?

MR. SORTO: Well, I can't say that right now. I can't say he was favorable or not. But I haven't heard anything yet to say, you know, of anything [sic]. I don't know.

MS. SWART: Did you have a favorable impression of Detective Moore from that incident [his daughter's investigation]? Not now, but back then?

MR. SORTO: From that particular incident, I did. He was a very professional man for that particular case. We should believe he did a great job personally on that case [sic]. I don't know about this. So I can't say anything right now.

MS. SWART: Today, when he raises his right hand and swears to tell the truth, in your mind are you going to sit there and say, whatever he says is going to be the truth or are you going to sit and listen to his while testimony and try to figure it out then?

MR. SORTO: Well, I'd rather say listen to the testimony than rather say something else.

THE COURT: All right. Thank you, sir. You may go back to the jury room.

Defense counsel moved for a mistrial based on Sorto's prior relationship with Detective Moore.⁴ The judge denied the motion, stating "I just can't conclude that he's got any kind of a bias or pre-disposition one way or another."

During the investigation, Detective Moore was not the lead investigator on the case, however, he interviewed Samudio-Perez because he speaks Spanish, Samudio-Perez's native language. Detective Moore did not record Samudio-Perez's statements and relied only on his notes from the interview for his testimony. Detective Moore testified that Samudio-Perez made an incriminating statement to him, specifically noting Samudio-Perez's admission that the sexual encounter between Samudio-Perez and the victim occurred without her consent. On direct examination, Samudio-Perez denied making the incriminating statement to Detective Moore and stated Moore suggested he write a letter to the victim. Samudio-Perez wrote the letter, which also incriminated him.

Analysis

I. Standard of Review

Samudio-Perez's appeal comes to us on a denial of a motion for a mistrial. Upon familiar principles, we will not reverse the denial of a motion for a mistrial unless a manifest probability exists that the trial court's ruling was prejudicial. See Taylor v. Commonwealth, 25 Va.App. 12, 17, 486 S.E.2d 108, 110 (1997) (citation omitted).⁵ We turn now to the substantive issues presented.

II. Denial of Motion for Mistrial

Under the standard of review set forth above, the party moving for mistrial, in this case, Samudio-Perez, has the burden of establishing a manifest probability of prejudice. See Taylor, 25 Va.App. at 17,486 S.E.2d at 110. To determine if a trial court's denial of a motion for a mistrial was prejudicial, when a juror's conduct is at issue, we must look to the juror's possible bias. The existence of an individual juror's possible bias or partiality is a question of fact to be determined by the trial court. See Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985),cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986). Additionally, "[i]t is well settled that the credibility of witnesses [and] the weight accorded witnesses' testimony . . . are matters that are within the province of the fact finder." Brown v. Commonwealth, 25 Va.App. 171, 192, 487 S.E.2d 248, 258 (1997) (citing Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)).

The trial court was in the best position to consider Sorto's response to counsel's questions and resolved the issue of possible bias in favor of Sorto and the Commonwealth. Sorto repeatedly informed the court he was able to address the issues impartially and stated he would not favor Detective Moore's testimony over another witness' testimony. Furthermore, Sorto stated he could not determine if Detective Moore had conducted himself professionally in the case at bar until he considered the evidence. After further questioning of Sorto by counsel, the trial judge made a finding of fact that Sorto could be a fair and impartial juror, stating she could not conclude "[Sorto]'s got any kind of a bias or pre-disposition one way or another." Viewing this evidence in the light most favorable to the Commonwealth, we find there was no "manifest probability" that the denial of a mistrial was prejudicial to Samudio-Perez. See Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (1998), rev'd on other grounds, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).

Samudio-Perez further argues that, if we find Sorto could have been stricken for cause, then the denial of the motion for a mistrial should be reversed. In determining a juror's possible bias, we may consider whether the juror could have been stricken for cause. See Taylor, 25 Va.App. at 18, 486 S.E.2d at 111. When there are no grounds to strike a juror for cause, the juror's presence on the jury will not affect the essential fairness of a trial and, therefore, we cannot find that prejudice exists. See id.

In the case at bar, as we have noted, the trial court found as fact that Sorto was a fair and unbiased juror. Thus, no ground for a strike for cause was established. Moreover, Sorto's relationship with Moore does not establish a per se disqualification of Sorto as a juror under Virginia law. See Clozza v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 279 (1984) (holding a prospective juror is not subject to "automatic exclusion because of an association with law enforcement"). We have long held that a juror's relationship to a witness does not require his dismissal per se. See Lilly, 255 Va. at 569-70, 499 S.E.2d at 531. In Lilly, the Supreme Court evaluated the propriety of seating a juror who had a prior relationship with a police officer witness and...