Townsend v. Com.

PRESENT: All the Justices

MICHAEL LEE TOWNSEND, SR.
OPINION BY
v. Record No. 042223 JUSTICE G. STEVEN AGEE
September 16, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Michael Lee Townsend was convicted in the Circuit Court of

Sussex County on one count of capital murder, one count of

first-degree murder, and two related firearm offenses for the

murders of his ex-girlfriend, Reta Price, and her boyfriend,

Gary Goss. On appeal, Townsend contends the trial court erred

in overruling his motions to strike two prospective jurors for

cause because seating those jurors makes it "unlikely that the

public would have confidence in the judicial process." The

Court of Appeals affirmed the judgment of the trial court. For

the reasons set forth below, we will affirm the judgment of the

Court of Appeals.

I. FACTS AND MATERIAL PROCEEDINGS BELOW

Melissa Holt and Sylvia King were members of Townsend's

jury venire. Holt had attended high school with a niece of

Goss, and they saw each other socially once or twice a month.

Holt's mother, with whom Holt lived, regularly provided

childcare for the niece's children. Although she had never met

Goss, Holt had occasional contact with the niece's father, who

was Goss' brother. According to Holt, Goss' murder had been

1
discussed in her presence on one occasion. During voir dire,

Holt stated that she did not think that her association with the

Goss family would interfere with her impartiality, and

specifically stated that she did not think it would prevent her

from rendering a verdict of not guilty if the evidence required

it.

Sylvia King's husband was a Sussex County deputy sheriff

who worked in the jail where Townsend was incarcerated before

and during trial. Deputy King was in the courtroom when his

wife appeared for the voir dire examination. King and her

husband had discussed Townsend as an inmate two or three times,

but she testified they did not discuss the merits of the case.

King stated that she had no preconceived opinion as to

Townsend's guilt or innocence.

Townsend moved to strike Holt and King for cause. As to

Holt, he argued that there was a "probability for bias," and

that "it would be very difficult for a woman that sees the

immediate family of one of the two deceased almost on a daily

basis . . . to be that twelfth vote for acquittal." Townsend

contended that Holt was associated "too closely with the family

of the victim to suggest that she could be an unbiased juror

that would not have a prejudice in this case against the

defendant." Similarly, Townsend argued that King "would be a

biased juror" because she could not be "fair and impartial" when

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"her husband sits five feet . . . behind the defendant

throughout this trial." Townsend never argued to the trial

court that the seating of Holt, King or any other juror would

undermine public confidence in the integrity of the judicial

process.

The trial court denied both motions, finding that Holt

"[stood] indifferent in the cause" and King "[had] expressed

that she could be fair and impartial." Townsend noted his

exception to the trial court's rulings, and used peremptory

strikes against Holt and King to bar them from the seated jury.

The jury found Townsend guilty of the murders of Price and Goss

and sentenced him to life imprisonment.1 Townsend filed a

petition for appeal in the Court of Appeals claiming the trial

court committed error in overruling his motions to strike jurors

Holt and King for cause.

The Court of Appeals granted Townsend an appeal as to

Holt's seating on the jury, but denied his petition for appeal

as to King. The Court of Appeals then affirmed the trial

court's judgment. On appeal to this Court, Townsend argues that

the Court of Appeals erred because Holt's and King's close

association with one victim's family and a Sussex County deputy

1
The jury also sentenced him to three years "for Use of a
Firearm in the Commission of [First Degree] Murder" and five
years "for Use of a Firearm in the Commission of Capital
Murder." The jury imposed fines of $100,000 for both murders.

3
sheriff, respectively, undermine the public's "confidence in the

integrity of the judicial process" and was cause to strike both

jurors.

II. ANALYSIS

It is prejudicial error for the trial court to force a

defendant to use peremptory strikes to exclude a venireman from

the jury panel if that person is not free from exception.

Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 737

(1976). The striking of any individual potential juror for

cause, however, is committed to the sound discretion of the

trial court. Barrett v. Commonwealth, 262 Va. 823, 826, 553

S.E.2d 731, 732 (2001); Cantrell v. Crews, 259 Va. 47, 50, 523

S.E.2d 502, 504 (2000).

On appellate review, this Court must give deference to
the circuit court's determination whether to exclude a
prospective juror because that court was able to see
and hear each member of the venire respond to
questions posed. The circuit court 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.

Green v. Commonwealth, 262 Va. 105, 115-16, 546 S.E.2d 446,

451 (2001) (citations omitted). For these reasons, a trial

court's denial of a motion to strike a juror for cause

"will not be disturbed on appeal unless there has been

manifest error amounting to an abuse of discretion."

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Barrett, 262 Va. at 826, 553 S.E.2d at 732 (citations

omitted).

In the case at bar, Townsend's sole basis on appeal for

contending the trial court erred in denying his motions to

strike jurors Holt and King for cause is that seating them would

make it "unlikely that the public would have confidence in the

integrity of the judicial process." This argument is made for

the first time on appeal and was never presented to the trial

court.2

In argument to this Court, Townsend contends that an

objection to a potential juror for cause necessarily implies an

objection on the grounds of public confidence in the integrity

of the judicial process. He argues the trial court is required

to independently review each member of the venire to determine

if the seating of any juror would undermine the public's

confidence in the judicial process, regardless of whether a

party raises an objection to a juror or gives a reason for

excluding that person.

Townsend cites Patterson v. Commonwealth, 39 Va. App. 658,

669, 576 S.E.2d 222, 228 (2003), for a rule that "an analysis of

'public confidence' is inherent in any appellate review of a

2
The argument Townsend did make at trial, that Holt or King
would be a "biased juror" and exhibit prejudice against
Townsend, was not made in the Court of Appeals or before this
Court and is therefore not considered under Rule 5:17(c).

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juror's impartiality and does not depend solely upon a juror's

explicit acknowledgement of bias." See also Brooks v.

Commonwealth, 41 Va. App. 454, 462, 585 S.E.2d 852, 856 (2003)

("the question of public confidence is inherent in the jury

selection process and is necessarily implicated when a juror's

retention is purportedly improper."). Thus, Townsend contends,

his public confidence argument cannot be procedurally barred by

Rule 5A:18 or 5:25 because it was implicit in his motions to

strike Holt and King for cause, regardless of the particularized

reasons he gave the trial court. Townsend avers a party may

always raise the issue of public confidence in juror selection

on appeal, regardless of whether it was ever addressed at trial.

We disagree.

Our precedent is of long standing that a venireman will not

be excluded from the jury if that person "stands indifferent in

the cause." Code § 8.01-358. See also Spangler v. Ashwell, 116

Va. 992, 996-97, 83 S.E. 930, 931 (1914) ("If the 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."); Salina v. Commonwealth,

217 Va. 92, 93, 225 S.E.2d 199, 200 (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."). In

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only a few, limited instances have we departed from this

fundamental rule to hold that seating of a juror was error, not

because of any proven bias or prejudice, but because the status

of the prospective juror was controlling. Although we disfavor

per se disqualification of a juror by reason of his status

alone,3 we have effectively established per se disqualification

by limited categories in Cantrell, 259 Va. at 49, 523 S.E.2d at

503, and City of Virginia Beach v. Giant Square Shopping Ctr.

Co., 255 Va. 467, 470-71, 498 S.E.2d 917, 918-19 (1998), when

the veniremen at issue were current clients of counsel for a

party to the proceedings in each case. See also Medici v.

Commonwealth, 260 Va. 223, 226-27, 532 S.E.2d 28, 30-31 (2000).

We did the same in Barrett, 262 Va. at 826-27, 553 S.E.2d at

732, when a juror's brother would appear as a witness to a crime

scene in his capacity as a police officer. In each of these

cases, the seating of the juror in question was found to be

erroneous because the status these jurors occupied in relation

to counsel or the parties in each case, would so likely erode

3
See Stockton v. Commonwealth, 241 Va. 192, 200, 402 S.E.2d
196, 200 (1991) (no per se disqualification based on group
membership or the fact that juror's family member was a victim
of violent crime); Mackall v. Commonwealth, 236 Va. 240, 251,
372 S.E.2d 759, 766 (1988) (cashiers not disqualified per se
when victim was a cashier); Melvin v. Commonwealth, 202 Va. 511,
512-13, 118 S.E.2d 679, 680 (1961) (leasor or owner of oyster
grounds not disqualified per se when crime was stealing
oysters); Waller v. Commonwealth, 178 Va. 294, 304-05, 16 S.E.2d

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the citizenry's confidence in the fairness of the judicial

system that a new trial was required. In none of these cases,

however, was the issue raised as to the application of Rule 5:25

because the argument had not been presented to the trial court.

We addressed this question in Blevins v. Commonwealth, 267 Va.

291, 293-94, 590 S.E.2d 365, 366-67 (2004). There, the

defendant moved for a mistrial after learning that a juror

incorrectly answered a question during voir dire regarding

whether she had been the victim of a "serious offense." Id. at

293, 590 S.E.2d at 366. The juror had been the victim of an

armed robbery in a parking garage, though she informed the trial

court otherwise. Id. The defendant argued that he did not

receive a fair trial because the juror was dishonest and biased,

and would have been stricken had the information been disclosed

as required during jury selection. Id. at 296-98, 590 S.E.2d at

368-69. The trial court denied the defendant's motion for a

mistrial. Id. at 295, 590 S.E.2d at 367.

On appeal to this Court, the defendant argued for the first

time that "the trial court's denial of the motion for a mistrial

could weaken public confidence in the integrity of criminal

trials." Id. at 296 n.*, 590 S.E.2d at 368 n.* (internal

quotation marks omitted). While we reviewed the defendant's

808, 812 (1941) (sharecroppers not disqualified per se when
defendant was a sharecropper).

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arguments with regard to the juror's honesty and potential for

bias, we specifically declined to address the public confidence

issue "because it was not raised in the trial court. Rule

5:25." Id. Our decision in Blevins controls this case.

Townsend never argued to the trial court that public

confidence in the judicial process would be undermined by

seating either Holt or King. Rather, he contended that Holt and

King should be dismissed for cause because of the likelihood of

actual bias against Townsend. Speaking about Holt, Townsend

argued, "[T]here's just way too many facts in that case that

associate her too closely with the family of the victim to

suggest that she could be an unbiased juror." Likewise, he

argued that King should not be seated because she had a

"conflict of interest and some potential to offer some sort of

bias."4 At no time did Townsend raise for the trial court's

consideration the argument he makes on appeal, that "[b]ecause

of [their] close association" with the family of a victim and

the Sussex County Sheriff's Department, respectively, the

seating of prospective jurors Holt and King would undermine

4
The record supports the trial court's exercise of
discretion in seating jurors Holt and King on the basis of
Townsend's actual challenges to them at trial because neither
juror indicated any bias, any preconceived opinions, any
difficulty applying the presumption of innocence, or any doubt
about her own ability to fairly weigh the evidence.

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"public . . . confidence in the integrity of the judicial

process."

"Error will not be sustained to any ruling of the trial

court . . . unless the objection was stated with reasonable

certainty at the time of the ruling, except for good cause shown

or to enable this Court to attain the ends of justice." Rule

5:25. "This rule requires that an objection be made with

sufficient specificity to enable the trial judge to rule

intelligently and, thus, to avoid unnecessary reversals on

appeal. Absent such objection, the issue will not be considered

for the first time on appeal." Commonwealth v. Washington, 263

Va. 298, 309, 559 S.E.2d 636, 642 (2002) (Koontz, J.,

dissenting). Rule 5:25 also applies to constitutional claims.

Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 572

(2004).

The consistent application of Rule 5:25 advances the Rule's

purpose of avoiding unnecessary reversals and retrials.

Commonwealth v. Jerman, 263 Va. 88, 93, 556 S.E.2d 754, 757

(2002) (citations omitted). Consequently, this Court has

consistently applied Rule 5:25. In Buck v. Commonwealth, 247

Va. 449, 443 S.E.2d 414 (1994), we addressed a defendant's

challenge to his conviction based on objections to the exclusion

of certain members of the venire on racial grounds under Batson

v. Kentucky, 476 U.S. 79 (1986). We held that the defendant's

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"failure to raise these arguments before the trial court

precludes him from raising them for the first time on appeal."

Id. at 452-53, 443 S.E.2d at 416 (citing Rule 5:25). Similarly,

this Court has held a party must request that the trial court

give a jury instruction on the abolition of parole pursuant to

Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), or

waive that argument on appeal. Jerman, 263 Va. at 94, 556

S.E.2d at 757.

Application of Rule 5:25 is particularly appropriate when

the basis offered for reversal of the trial court is not that a

juror was actually biased, and thus not indifferent to the

cause, but that a public policy consideration should override an

otherwise legitimate jury verdict. It is fundamentally unfair

to overturn the valid decision of a jury for reasons never given

to the trial court and which do not go to the merits of the case

or the actual bias of a juror. "We open a Pandora's box of

subjective hindsight if appellate review of juror selection is

based on first-time, post-trial conjecture as to what does or

does not constitute appropriate 'integrity of the process' to a

majority of the appellate court hearing the argument years after

the fact." Perez v. Commonwealth, 40 Va. App. 648, 662, 580

S.E.2d 507, 514 (2003) (Agee, J., concurring).

III. CONCLUSION

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 Public confidence in the integrity of the judicial system,

as a ground for excluding a juror for cause, must be raised in

the trial court or that issue is waived. Rule 5:25; Blevins,

267 Va. at 296 n.*, 590 S.E.2d at 368 n.*. Any "implication"

arising from this Court's prior decision in Medici that the

question of public confidence may be raised in any appeal when a

motion to strike a juror for cause has been denied, regardless

of whether it was properly raised below, see Brooks, 41 Va. App.

at 462, 585 S.E.2d at 856, is expressly rejected. The trial

court must be apprised of the basis upon which a public

confidence objection to a juror is made and the other litigants

given an opportunity to address the trial court on that matter.

Townsend's failure to raise his public confidence argument

at trial regarding the seating of the jurors bars that claim for

the first time on appeal, under Rule 5:25.5 Accordingly, we will

affirm the judgment of the Court of Appeals.

Affirmed.

5
Townsend does not argue the ends of justice exception to
Rule 5:25 on appeal, and we see no basis for its application.

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