Taylor v. Commonwealth

• Citation: 733 S.E.2d 129,61 Va.App. 13
• Decision Date: 23 October 2012
• Docket Number: Record No. 0956–11–2.
• Parties: Franklin TAYLOR, s/k/a Franklin Wayne Taylor v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

61 Va.App. 13

733 S.E.2d 129

Franklin TAYLOR, s/k/a Franklin Wayne Taylor

v.COMMONWEALTH of Virginia.

Record No. 0956–11–2.

Court of Appeals of Virginia,

Richmond.

Oct. 23, 2012.

Vinceretta Taylor Chiles (Chiles Law Offices, P.C., on briefs), Richmond, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges FRANK, HUMPHREYS and HUFF.

FRANK, Judge.

Franklin Taylor, s/k/a Franklin Wayne Taylor, appellant, was convicted, by a jury, of voluntary manslaughter, in violation of Code § 18.2–35. On appeal he contends the trial court erred in not striking Juror Lamb for cause, in admitting a prior conviction without proper notice, and in finding the evidence sufficient to convict. For the reasons stated, we reverse the judgment of the trial court.

BACKGROUND

On the night of May 8, 2010, Crystal Horton parked her car in a public parking lot near the 17th Street Farmer's Market in Richmond and went to the Visions nightclub. Horton left the club at 1:30 a.m. on May 9, 2010. As she arrived at the parking lot, Horton heard several gunshots and observed someone step out from between two cars with his arm pointing. Horton then heard more shots. She described the shooter as a thin black male, between 5'7? and 5'9?, wearing a dark-colored hat, t-shirt, and blue jeans.

Horton left the parking lot quickly but saw the shooter again as he was walking across 17th Street to Franklin Street. The man was not walking normally; he was holding his arm to his back. He appeared to have an angry or hurt expression. Horton saw a police officer who had responded to the scene. She reported the incident to the police.

Richmond Police Officer Kurtis Jinks was parked at 18th and Grace Streets at the time of the incident. Around 2:00 a.m. on May 9, 2010, Jinks heard approximately six gunshots from an area behind his location. He traveled two blocks to the parking lot near the Farmer's Market, where he discovered the body of a man later identified as Reshawn Thurman. Thurman's body was lying next to the open door of his vehicle, and Jinks saw a gun lying next to the body. Jinks secured the scene. Detectives arrived within minutes.

Forensic Detective Eugene Provost arrived at the shooting scene at 2:36 a.m. Provost observed the magazine of a .40 caliber Glock pistol lying next to the victim. The magazine was fully loaded with 13 cartridges, and there was another cartridge in the chamber.¹ Provost also saw a spent .40 caliber shell in front of the victim's vehicle. Next to the victim's body, Provost saw two spent 9 mm shell casings and a man's gold ring with a diamond cluster.

Provost recovered keys from the seat of the victim's car and a cell phone on the floorboard. From the trunk of the victim's car, Provost found two boxes of .40 caliber ammunition and numerous pill bottles containing controlled substance pills; $690 in U.S. currency was found on the victim's body.

Provost also found a blood stain on the right fender of the victim's vehicle. Provost swabbed red stains leading away from the body. He followed the trail of blood away from the scene to 18th Street, then 19th Street, then to Franklin Street to the Have a Nice Day Café.

The detective found blood in the parking lot behind the Have a Nice Day Café, but no shell casings. Essentially, Provost found dripping blood stains from the victim to the Have a Nice Day Café. The detective also found a blood stain on a Buick in which appellant rode to the hospital. All swabs from the various blood stains were sent to the state laboratory.

On May 9, 2010, around 10:00 a.m., K–9 Police Officer Anthony Jackson and his bloodhound “Hopper” arrived at the homicide scene. Detective Provost provided a scent sample from the swabs of blood found at the scene. Jackson gave the dog the scent item. The dog then followed that scent several blocks, to the alley at the rear of the Have a Nice Day Café.

Earlier on May 9, 2010, around 2:15 a.m., Barbara Logan and the appellant's cousin left Visions nightclub. The victim had also been at the club. He left earlier, around 1:40 a.m. Shortly thereafter, the cousin received a telephone call from appellant who reported he had been shot. The women began running towards the Have a Nice Day Café, where they found appellant in the alley behind that club. He was sitting on the ground, slumped over and bleeding. Logan called her husband to bring a car to transport appellant to the hospital. Logan called 911 on the way to the hospital. Police officers were waiting for them when they arrived at the hospital.

On May 10, 2010, appellant spoke to Detective Arcellious Demery in the hospital. Appellant told Demery that he was standing in the parking lot of the Have a Nice Day Café when a man approached and shot him. Upon additional questioning from Detective Demery, appellant said the man had attempted to rob him. When appellant would not allow the man to search his pockets, the man shot appellant. When appellant fell to the ground, he did not see the direction the shooter fled. Appellant initially said the man took $100 but then changed that amount to $80. Appellant also said the assailant took his watch and ring. Demery told appellant he had a photograph of a ring recovered from the Have a Nice Day Café lot. The photograph actually depicted the ring recovered from the ground next to Thurman's body. Appellant looked at the photograph and identified the ring as his.

Appellant told the detective the entire incident occurred in the Have a Nice Day Café lot. Officer Michael Morris was working in an off-duty capacity at the Have a Nice Day Café on the night in question. Between 10:30 p.m. on May 8 and 3:00 a.m. on May 9, 2010, Morris did not hear any gunshots or any other disturbance.

Detective Provost obtained a buccal swab from appellant. Provost submitted the sample for DNA testing, along with blood swabs collected from the blood droplets that led from the victim to the Have a Nice Day Café. Forensic scientist Lisa Schiermeier–Wood tested several of the blood samples and concluded the chances the blood belonged to anyone other than appellant were one in 6.5 billion. Schiermeier–Wood also concluded that Thurman could not be eliminated as the donor of the blood found on the car at the homicide scene.

On August 20, 2010, the Commonwealth, pursuant to Code § 19.2–295.1, provided notice to appellant of its intention to introduce evidence of prior convictions at appellant's trial. The prosecutor listed among the prior convictions a manslaughter conviction in 2004 from King William County.

Appellant's trial ended in mistrial when the jury could not reach a verdict. The Commonwealth did not, prior to the new trial, give appellant further notice of its intention to re-introduce evidence of the manslaughter conviction.

During the new trial, appellant moved to strike Juror Lamb for cause, because of the following exchange that occurred during voir dire:

[Appellant's Counsel]: Do any of you believe that the police are any more credible than any other witness or anyone else who can take the stand?

[Venire]: No response.

[Appellant's Counsel]: Does anyone believe that—Does everyone believe, shall I say, that every witness who is placed on the witness stand swears to tell the truth and that you are obligated to believe the witness, unless there is some reason why you shouldn't?

Juror Lamb: I think I'd believe the cop more.

After Lamb made this statement, the following dialogue took place:

The Court: Morning. You indicated in response to one of the questions that you might tend to believe a police officer before you would believe somebody else.

Juror Lamb: Yes, sir.

The Court: Do you understand that you are allowed to make judgments about the witnesses after you have heard all the evidence?

Juror Lamb: Yes.

The Court: But you have to be impartial in judging that evidence until there is a reason for you to believe or disbelieve.

Juror Lamb: Yes.

The Court: You have to make a judgment and not be influenced by the fact that somebody is a police officer or somebody else. Do you understand that to be the law?

Juror Lamb: Yes.

The Court: Can you follow that?

Juror Lamb: Yes, sir.

The Court: Also, Ms. Chiles may have questions.

Ms. Chiles: Mr. Lamb, your initial response was that you believe that you would in fact believe a police officer more than any other witness; correct?

Juror Lamb: Yes, ma'am.

Ms. Chiles: Is that still the case?

Juror Lamb: I believe that I can try to be impartial.

Ms. Chiles: But you don't come to this scenario with the understanding that you are in fact impartial? You do believe that police officers are more honest than anybody else?

Juror Lamb: I just have respect for police officers. I don't know if that answers your question.

Mr. Santos: If you thought that the officer was not telling the truth, would you give any credit to what he said?

Juror Lamb: No. If I believed he was lying, no.

The trial court denied appellant's motion to strike Juror Lamb for cause, forcing appellant to exercise a peremptory strike on Lamb.

Appellant objected to the introduction of his prior manslaughter conviction order at the sentencing phase, on the grounds that the Commonwealth had failed to advise the defense prior to the re-trial that it again intended to introduce the prior conviction order. The court overruled the objection. Following appellant's conviction, at the sentencing phase of the jury trial, the Commonwealth introduced the prior manslaughter order.

This appeal follows.

ANALYSIS

Juror Lamb

Appellant first contends the trial court erred in not striking Juror Lamb for cause because of his perception that police officers are more credible than other witnesses.²

The right to be tried by an impartial jury is guaranteed under both the United States and Virginia Constitutions. Swanson v. Commonwealth, 18 Va.App. 182, 184, 442 S.E.2d 702, 703 (1994); see alsoCode § 8.01–358. For that...