Ramos v. Commonwealth

• Decision Date: 12 November 2019
• Docket Number: Record No. 1595-18-2
• Citation: 834 S.E.2d 499,71 Va.App. 150
• Court: Virginia Court of Appeals
• Parties: Alex Michael RAMOS v. COMMONWEALTH of Virginia

71 Va.App. 150

834 S.E.2d 499

Alex Michael RAMOS

v.COMMONWEALTH of Virginia

Record No. 1595-18-2

Court of Appeals of Virginia, Richmond.

NOVEMBER 12, 2019

John P. Joyce (Snook & Haughey, P.C., on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Petty and Huff

OPINION BY JUDGE GLEN A. HUFF

Alex Michael Ramos ("appellant") appeals his conviction for malicious wounding in violation of Code § 18.2-51 for his participation in a fight at the disturbances arising out of the "Unite the Right" rally in Charlottesville. After a jury trial in the Circuit Court for the City of Charlottesville, the jury convicted appellant, and the trial court sentenced him to six years’ imprisonment in accordance with the jury’s recommended sentence.

Appellant raises three assignments of error. First, he argues the trial court erred by not excusing, for cause, jurors who were aware that another defendant was convicted the prior day for a malicious wounding of the same victim in the same incident. Second, he argues the trial court erred by denying his motion to change venue. Third, he argues the trial court erred in denying his motion to strike because the evidence was insufficient to prove he acted with the requisite malice.

This Court disagrees with appellant’s assertions. First, this Court declines to create a per se rule requiring a trial court to strike those familiar with another defendant’s conviction. Second, appellant waived his change of venue claim by failing to renew it after a jury was empaneled. Third, a single punch to the head is a significant enough attack from which the jury could infer malice when the blow was struck after the victim was already on the ground having been repeatedly struck by a mob of individuals.

I. BACKGROUND

"This Court considers ‘the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.’ " Hawkins v. Commonwealth, 64 Va. App. 650, 652, 770 S.E.2d 787 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584 (2008) ). So viewed the evidence is as follows:

On August 12, 2017, several white-supremacist groups held the "Unite the Right" rally in Charlottesville. Deandre Harris, the victim of the malicious wounding, gathered with several friends in the area and joined a group of counter-protesters. After several hours of conflict—before the rally was scheduled to start—between rally participants and the counter-protestors, the police ordered everyone to disperse.

As the participants and counter-protesters headed back toward the parking garages, Harris observed an acquaintance in a dispute over a flag. Believing his acquaintance was about to be stabbed with the flagpole, Harris intervened and struck the flagpole with a Maglite flashlight he had been given earlier in the morning. Harris was pepper sprayed. A general melee broke out. As Harris stumbled away, he was struck. The group of people fighting moved away from him. Harris staggered to his feet and ended up surrounded again. At least three individuals other than appellant struck Harris. One used poles; one used a large stick of wood like a 2" x 4"; and another used a shield. Several of them, and a few others, kicked him at the same time. Harris fell to the ground. Appellant joined the fray. He had a shirt wrapped around his fist and might have had an object in his hand concealed by the shirt. He wound

up with his fist and struck Harris while Harris was still on the ground. Harris then got up and ran away with a bloody face, stumbling as he went.

Appellant was indicted for malicious wounding in violation of Code § 18.2-51. Before trial, he moved for a change of venue. He argued the publicity and public outcry over the violent events of that day made it impossible for him to receive a fair trial before an impartial jury. The trial court declined to grant the motion before jury selection, taking the motion under advisement and inviting appellant to renew his motion during voir dire . Appellant never renewed the motion or further requested a ruling on the motion. After the jury had been sworn and the first witness had testified, the Commonwealth noted that the motion for a change of venue had not been finally ruled on, and the trial court then denied the motion.

Jacob Goodwin, the individual with the shield who participated in attacking Harris, was tried on the two days immediately before appellant’s trial. Goodwin was found guilty of malicious wounding and sentenced to ten years’ imprisonment. See Goodwin v. Commonwealth, 71 Va. App. 125, ––––, 834 S.E.2d 487, 2019 WL 5875957 (Nov. 12, 2019). During voir dire in appellant’s trial, it was discovered that some in the venire were aware, to varying extents, of Goodwin’s conviction. One potential juror, R.A., saw a headline about Goodwin’s conviction, but did not read the story. Another, M.W., knew Goodwin was convicted and sentenced to ten years’ imprisonment, but did not know the charge on which he was convicted. The potential juror who knew the most, L.T., stated he knew the previous defendant was convicted of malicious wounding and sentenced to ten years. Four more potential jurors knew something, but three had knowledge that was similar to M.W., R.A., or L.T. and one was never asked specifically what she knew.¹

After the individual voir dire of the last of the potential jurors, M.W., appellant moved to strike M.W. and "people who know about the Goodwin verdict." The trial court denied the motion. It concluded appellant could not make a general objection to multiple jurors in that fashion, but stated it would permit appellant to question any of the jurors more specifically if he wanted to so he could make individualized motions. Appellant did not question any potential juror further.

At the close of the evidence, appellant moved to strike on the ground that the Commonwealth had not proved malice because appellant only hit the victim once. The trial court denied the motion. The jury convicted appellant and recommended a sentence of six years’ imprisonment. The trial court imposed the jury’s recommended sentence, and this appeal followed.

II. ANALYSIS

A. Juror Selection

Appellant argues the trial court erred by not striking jurors who were aware Goodwin had been convicted of malicious wounding the previous day. Appellant argues that because they knew Goodwin had been convicted the day before for his participation in the same beating, they would defer to the earlier jury on the issue of whether the Commonwealth had proved a malicious wounding occurred. He argues that when a defendant is accused based on a concert of action theory and prospective jurors know about the conviction of a co-defendant who was tried separately, those prospective jurors are per se disqualified. This Court disagrees.²

On review, this Court gives significant deference to a trial court’s decision to strike a prospective juror or not, "because the trial court was able to see and hear each member of the venire respond to the questions posed." Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866 (2000), cert. denied, 534 U.S. 815, 122 S.Ct. 41, 151 L.Ed.2d 14 (2001). Accordingly, our review is "for an abuse of discretion and [the trial court’s] ruling will not be disturbed on appeal unless it appears from the record that the trial court’s action constitutes manifest error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d 1 (2000). "In conducting our review, we consider the juror’s entire voir dire , not merely isolated statements." DeLeon v. Commonwealth, 38 Va. App. 409, 412-13, 565 S.E.2d 326 (2002) (quoting Lovitt, 260 Va. at 510, 537 S.E.2d 866 ).

A defendant in a criminal case in Virginia is entitled to a jury panel free of potential bias or other disqualifying characteristics before exercising peremptory challenges. Id. at 412, 565 S.E.2d 326. A prospective juror must be able to give the defendant "a fair and impartial trial." Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734 (1976). Through the voir dire process, "the trial judge must probe the conscience and mental attitude of the prospective jurors to ensure impartiality." Griffin v. Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363 (1995). Although a potential juror may have some knowledge of the case, or preconceived or even erroneous notions about the legal system, 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." Id.

Appellant argues that Farrar v. Commonwealth, 201 Va. 5, 109 S.E.2d 112 (1959), mandates reversal. In Farrar, the defendant and another man were charged with consensual sodomy with each other. Their trials were severed. The other man was tried first. When Farrar was later tried, eight members of the venire from the other man’s trial were part of the venire for Farrar’s trial. Although those prospective jurors did not hear the evidence in the earlier trial, they did hear the other defendant’s arraignment and the charges, which mentioned Farrar’s name. Although Farrar did not establish that the prospective jurors had read the newspapers, the other defendant’s conviction had been reported in the paper. The Supreme Court held that those prospective jurors should have been excluded from the venire. Id. at 9, 109 S.E.2d 112. The Court noted that the jurors had such an "association with [the first defendant]’s case that it may be reasonably inferred that bias on their part operated in the trial of Farrar." Id. at 8, 109 S.E.2d 112 (emphasis added). Appellant contends that the juror’s awareness of the verdict in Goodwin’s case creates the same reasonably inferred bias that should require a per se exclusion of those prospective jurors.³

Nevertheless, a key distinction separates this case from the circumstances of Farrar.⁴ Even assuming, without...