Warren v. Commonwealth

• Docket Number: Record No. 0533-22-1
• Decision Date: 07 March 2023
• Citation: 76 Va.App. 788,883 S.E.2d 709
• Parties: Shaquawn Demonte WARREN v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

76 Va.App. 788

883 S.E.2d 709

Shaquawn Demonte WARREN

v.COMMONWEALTH of Virginia

Record No. 0533-22-1

Court of Appeals of Virginia, Norfolk.

March 7, 2023

Kelsey Bulger, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Humphreys, AtLee and Raphael

OPINION BY JUDGE ROBERT J. HUMPHREYS

Shaquawn Demonte Warren appeals his conviction by a jury in the City of Chesapeake Circuit Court of misdemeanor driving under the influence ("DUI"), in violation of Code § 18.2-266. Warren argues on appeal that the circuit court erred in striking a potential juror for cause, and in granting the Commonwealth's motion in limine which prevented Warren from presenting a necessity defense.

BACKGROUND

Just after 1:00 a.m. on January 27, 2020, Virginia State Police Trooper Ryan Dougherty was stationed at the top of the southbound Monitor-Merrimac Bridge-Tunnel when he observed a vehicle traveling extremely fast compared to the other vehicles passing the same point. Trooper Dougherty drove his vehicle to catch up to the speeding vehicle, which he determined was traveling 96 miles per hour in a 60 mile-per-hour zone. Trooper Dougherty turned on his emergency equipment to initiate a traffic stop, and the vehicle stopped abruptly.

Trooper Dougherty approached the vehicle and upon talking to Warren detected the strong odor of alcoholic beverage coming from his person. Warren had glassy eyes, and he was speaking very fast. "He was frantic." Warren told Trooper Dougherty that he was traveling to Portsmouth from Newport News because his cousin had been shot. Trooper Dougherty asked Warren to move to the rear of the vehicle so he could perform field sobriety tests. Warren exhibited multiple clues of impairment. Consequently, Trooper Dougherty placed Warren under arrest and called a relative of Warren's to retrieve his vehicle and firearm. Trooper Dougherty transported Warren to the Chesapeake City Jail where he used the intoxilyzer machine to perform a breath test. The test results showed Warren's blood alcohol content was 0.12. On August 13, 2020, the general district court found Warren guilty of driving under the influence of alcohol in violation of Code § 18.2-266. Warren appealed to the circuit court.

I. Jury Selection

The parties appeared for trial on March 4, 2022. Warren pleaded not guilty and asked for a jury trial. At a bench conference prior to juror voir dire, counsel and the court conversed about the list of prospective jurors. Specifically, they discussed that the Virginia Criminal Information Network ("VCIN") records showed that prospective juror Andre Fields had been twice convicted of felony DUI, in 2004 and in 2006. This raised the question of whether Fields was qualified to serve as a juror under Code § 8.01-338. The VCIN did not indicate that Fields's rights had been restored, and the Commonwealth stated that typically the VCIN does indicate if one's rights are restored. Defense counsel asked that they voir dire Fields on the matter, rather than automatically remove him from the panel.

During voir dire of the jury pool Fields offered that he had been convicted of felony DUI. Upon individual voir dire defense counsel asked Fields if his rights had been restored in the Commonwealth of Virginia. Fields replied that they had been restored "[w]hen President Obama ran the second time." Then he indicated that he was initially denied restoration of rights but "[a]fter the election, they approved it," and his rights were restored. Fields testified that he had not been called to serve on a jury since his rights were restored, but he had voted in local and federal elections without a problem. He said that Virginia's governor granted his restoration of rights, but he could not recall the name of the governor. Fields gave his full name and date of birth and said that he had never changed his name.

Defense counsel objected to the Commonwealth's motion to strike Fields for cause. He argued that he believed Fields was telling the truth about his rights restoration. He stressed that Fields would not have been able to vote if his rights were not restored. He also stated that he had known the VCIN to not reflect rights restoration in the past. The circuit court replied, "I think he's telling the truth. I think he may be a little confused, though. I'm not sure what happened, but he's talking about the president. It's clearly state court convictions." The circuit court judge checked the Governor's website for any record of his rights restoration, but Fields's name did not appear with his social security number and date of birth. The circuit court ultimately struck Fields for cause because based on the VCIN report and the testimony Fields did not meet the requirements of Code § 8.01-338. The court stated, "It does not appear that he is eligible under the statute to sit. Obviously, we're not trying this case as to whether he's, you know, telling us correctly or not, but what's in front of me right now, [in] my opinion, he's not eligible to serve on this jury."

II. Motion in limine

After voir dire of the jury pool concluded, the Commonwealth brought a motion in limine to prevent Warren from eliciting testimony to prove the affirmative defense of necessity. The Commonwealth asserted, "it would be highly inappropriate, irrelevant, and not probative of any fact at issue with this DUI case." First, the Commonwealth argued at length that a necessity defense is not applicable to a DUI charge because there is no mens rea requirement for DUI. Second, the Commonwealth said that if the court finds the defense of necessity could be applied to Code § 18.2-266, then the question becomes whether the evidence could satisfy the elements of the necessity defense. The Commonwealth argued that Warren's evidence would not be legally sufficient to meet the elements of a necessity defense.

Defense counsel argued that Virginia case law supports that a necessity defense is available to a defendant charged with DUI. He emphasized that the remaining issues are issues of fact and credibility for the jury to decide at trial. Defense counsel then submitted a proffer of evidence for Warren's necessity defense:

Mr. Warren, on this particular night in question, was just arriving at home in Newport News. He had been out with his cousin. He arrived home. He got into bed. He was falling asleep when he got a phone call from his cousin's girlfriend, who told him that the cousin he just dropped off at his grandmother's house, had been shot, and was dying of a wound in front of his grandmother's home. Mr. Warren got in his car and drove back to Portsmouth, because he had the belief—and we would be arguing a reasonable belief—that given the situation, given that there was an active shooting, it would take an ambulance quite a while to get to that scene to take his cousin to the hospital to receive medical treatment. A cousin, who later that evening, died from that gunshot wound.

So we'd be arguing that Mr. Warren was on his way—it was the middle of the night. He was unaware of whether there were other family members awake. He was unaware of anything else going on that could have helped his cousin get medical help, but he knew that he had a vehicle. He had a license. He didn't believe that he was intoxicated, and he believed that getting there to help his cousin might have saved his life. As a result, Mr. Warren holds the belief that because he was prevented from getting there in time, that his cousin died, because the ambulance did not arrive fast enough to provide adequate medical care for a gunshot wound that was to the shoulder, but between the time of the gunshot and the arrival of the ambulance and medical services is such that his cousin passed away. So we'd be eliciting testimony from Mr. Warren, as well as his aunt, the aunt of this cousin, as well, that this cousin died, that this cousin had been shot, and that Mr. Warren had a reasonable belief that he needed to get there to provide aid.

After a recess, the circuit court asked defense counsel if he wanted to add anything to his proffered evidence or bring anything else to the court's attention. Defense counsel replied that there was nothing else. The circuit court recited the elements of the necessity defense and found, "I don't think the proffered facts meet the threshold." The court granted the Commonwealth's motion in limine , adding, "based on the facts that were proffered, the issue becomes, among other things, relevance, in the sense that the elements to establish the necessity just haven't been proffered."

The case proceeded to trial before the jury. The Commonwealth presented its case through the testimony of Trooper Dougherty, whose testimony established the facts of January 27, 2020, as stated above. Warren then testified as the only witness for his case. The jury found Warren guilty of DUI, first offense. The circuit court sentenced Warren to nine months’ incarceration, with nine months suspended, and a $1,000 fine, with $500 suspended. Warren filed a timely notice of appeal.

ANALYSIS

I. Striking Juror for Cause

Warren argues that the circuit court erred in striking prospective juror Fields for cause. "The striking of any individual potential juror for cause, however, is committed to the sound discretion of the trial court." Townsend v. Commonwealth , 270 Va. 325, 329, 619 S.E.2d 71 (2005). "As an appellate court, we must defer to a trial court's ruling on the issue of whether to retain or excuse a prospective juror for cause and that ruling 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 (2001). "An abuse of discretion occurs only when ‘reasonable jurists’ could not disagree as to the proper decision." Thomas v. Commonwealth , 62 Va. App....