PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, and Lemons, JJ.,
and Compton and Stephenson, S.JJ.
LAWRENCE KEVIN BLEVINS
OPINION BY
v. Record No. 031022 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
January 16, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The issue in this appeal involves a trial court's refusal
to declare a mistrial based on alleged juror partiality.
I
In a jury trial in the Circuit Court of the City of
Roanoke, Lawrence Kevin Blevins was convicted of object sexual
penetration, malicious wounding, and abduction with intent to
defile. Blevins was sentenced to a total prison term of life,
plus 40 years.
Thereafter, Blevins appealed his convictions to the Court
of Appeals. On April 29, 2003, the Court of Appeals issued an
opinion affirming the convictions. Blevins v. Commonwealth, 40
Va. App. 412, 579 S.E.2d 658 (2003). We awarded Blevins an
appeal, limited to the assignment of error as follows: "The
trial court erred in overruling the [defendant's] motion for
mistrial based on juror untruthfulness during voir dire."
II
A
A brief summary of the facts relating to the crime will
suffice. On the evening of January 16, 2001, the victim had
finished her work and was walking to her automobile, parked in a
parking garage in the City of Roanoke. She was alone, and, as
she put her key into her car door lock, "all hell broke loose."
At that moment, the victim came face to face with the accused,
who began to strike her with his fists. The accused told the
victim that, if she would cooperate by performing a sex act with
him, he would stop hitting her. The beating stopped, and the
accused unzipped the victim's pants and inserted a finger into
her vagina. He also fondled the victim's breasts.
Several minutes later, and before the accused could rape
the victim, a car approached the victim's vehicle. When the
approaching car stopped, the victim was able to escape to it,
and the accused fled the scene.
B
The facts pertaining to the issue in this appeal are as
follows. During voir dire, the trial court asked the
prospective jurors whether "any of you or any members of your
immediate family [have] ever been the victim of a serious
offense?" All members of the venire answered negatively.
Immediately following the conclusion of Blevins' trial,
Deputy Jessie W. Roberts encountered juror Bonnie Divers in the
jury room. Divers told Roberts that she was waiting for someone
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to walk with her to her car, which was parked in a lot several
blocks away. Roberts offered to escort Divers to her car.
Roberts informed Divers that, if she had parked her car in a
nearby parking garage, she would have been reimbursed for her
parking expenses. Divers replied that she did not park in the
parking garage because, 13 to 15 years previously, she had been
the victim of an armed robbery in a parking garage.
Thereafter, Roberts informed the Commonwealth's Attorney of
this conversation, and the Commonwealth's Attorney reported the
information to defense counsel. Six days after the trial,
Blevins filed a motion for a mistrial based upon Divers' failure
to reveal that she had been the victim of a serious offense.
On September 4, 2001, the trial court conducted a hearing
on the motion. At the hearing, the trial court asked Divers why
she had not answered affirmatively when the court had asked,
during voir dire, whether any prospective juror had been the
victim of a serious offense. The following exchange then
occurred:
DIVERS: Obviously, I didn't hear you or I didn't
understand. I would have raised both hands up to
have not been on this trial. I mean I don't like
excitement. I would have let you known, had I
heard you and understood what you were asking.
THE So you didn't deliberately withhold that
COURT: information?
DIVERS: Oh, no, no, definitely not. This is not my
thing. I don't like excitement.
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THE Now, the next question is: Because you either
COURT: didn't hear, or misunderstood, or didn't
understand, having not answered that question, did
the prior bad experience you went through in any
way affect your ability to fairly and impartially
hear Mr. Blevins' case?
DIVERS: Absolutely not; I did my judgment on the evidence
and the evidence only. It was nothing personal
between nobody, because I don't know anybody here,
so why would I want to do something like that.
That would be . . . wrong of me, but it had no
effect on my decision at all.
Divers further stated, in answer to questions by the
Commonwealth's Attorney, that her verdict "was strictly on the
evidence, nothing about my personal life." She also said that
she was "not bias[ed]."
III
A
In the present case, the post-trial hearing that the trial
court conducted on Blevins' motion for a mistrial was the
appropriate remedy for allegations of juror partiality. See
Smith v. Phillips, 455 U.S. 209, 215 (1982). Following the
hearing, the trial court rendered a written opinion, finding,
inter alia, that Blevins
has failed to show that the juror failed to answer
honestly to a material question posed by the court
during voir dire. Juror Divers did not give a correct
answer to the question posed, but she was not
deliberately evasive. Either she did not hear the
question or she did not understand the question. She
was not dishonest. She even wondered why she was not
asked about the incident during voir dire. She
disclosed the incident to the deputy sheriff without
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reservation. Her actions do not reveal dishonesty but
mere inattention or a lack of understanding. The
Court finds that the defendant has not shown that the
juror failed to answer honestly to a material question
during voir dire.
The trial court also found that "there was no valid basis for a
challenge for cause because the juror was not biased."
The court further found the following:
Based on the evidence presented at the hearing,
the Court has determined that Juror Divers was not
biased against the defendant and decided the case
based solely on the evidence presented at trial. She
testified that the robbery did not affect her ability
to hear the Blevins case. She further testified that
she was not biased against Mr. Blevins and did not
deliberately deceive the Court. She based her
decision strictly on the evidence. Thus, the Court
finds that she was not biased and served as an
impartial juror in the defendant's case. Therefore,
Mr. Blevins' constitutional rights to due process and
an impartial jury were not violated.
Finally, the trial court found "beyond a reasonable doubt
that [Divers] gave [Blevins] a fair and impartial trial" and
that, "[b]ased upon the lack of deception by [Divers], combined
with the overwhelming guilt of [Blevins], . . . Divers' presence
did not result in actual prejudice to . . . Blevins."
B
The Court of Appeals, after a meticulous review of the
evidence and the applicable law, affirmed the trial court's
ruling. The Court of Appeals concluded that, "[b]ecause the
evidence supported the trial court's findings that the juror's
failure to answer the subject voir dire question was accidental
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rather than intentional and that she stood impartial to the
cause, its denial of [Blevins'] motion for mistrial was not
error." Blevins, 40 Va. App. at 429, 579 S.E.2d at 666.
IV
Blevins asserts that, if Divers had "honestly reveal[ed]"
that she had been a robbery victim during jury voir dire, he
would have had a valid basis to challenge Divers for cause.
Blevins also asserts that he was denied the opportunity to use a
peremptory strike in the event a challenge for cause was denied.
Thus, Blevins contends, he was denied a fair jury trial. ∗
The Sixth Amendment of the Constitution of the United
States provides, in pertinent part, that, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . .
trial, by an impartial jury." The right to an impartial jury is
applicable to the states by way of the Fourteenth Amendment.
Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Manns v.
Commonwealth, 213 Va. 322, 323, 191 S.E.2d 810, 811 (1972).
Article I, Section 8 of the Constitution of Virginia also
∗
Blevins also contends that the trial court's denial of the
motion for a mistrial "could weaken public confidence in the
integrity of criminal trials." We will not consider this
contention because it was not raised in the trial court. Rule
5:25. Additionally, Blevins contends that he was denied his
right to effective assistance of counsel. This contention,
however, is not cognizable on direct appeal. Lenz v.
Commonwealth, 261 Va. 451, 460, 544 S.E.2d 299, 304, cert.
denied, 534 U.S. 1003 (2001).
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guarantees an accused the right to a trial by an impartial jury,
and due process requires "a jury capable and willing to decide
the case solely on the evidence before it." Smith v. Phillips,
455 U.S. at 217.
In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984), the Supreme Court enunciated a two-part test to be
applied in determining whether a litigant is entitled to a new
trial in cases alleging juror dishonesty during voir dire. The
Supreme Court held that, in order to obtain a new trial in such
situations, a litigant
must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then
further show that a correct response would have
provided a valid basis for a challenge for cause. The
motives for concealing information may vary, but only
those reasons that affect a juror's impartiality can
truly be said to affect the fairness of a trial.
Id. The Supreme Court also noted that it has long held that a
litigant is entitled to a fair, but not perfect, trial, as there
are no perfect trials. Id. at 553.
In Taylor v. Commonwealth, 25 Va. App. 12, 14, 486 S.E.2d
108, 109 (1997), aff'd per curiam, 256 Va. 214, 505 S.E.2d 378
(1998), a juror in a murder-by-use-of-a-firearm case had failed
to state during voir dire that her husband had been robbed at
gunpoint earlier in the year. The Court of Appeals, applying
the McDonough test, affirmed the trial court's refusal to
declare a mistrial and, in so doing, observed that "there was no
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dispute at trial that [the juror] stood indifferent to the
cause." 25 Va. App. at 18, 486 S.E.2d at 111. The Court
further stated that, "[b]ecause there was no basis for a
challenge for cause, [the juror's] presence on the jury did not
affect the essential fairness of the trial." Id.
An appellate court must give deference to a trial court's
factual finding regarding a juror's impartiality because the
trial court " 'sees and hears the juror.' " Eaton v.
Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990),
cert. denied, 502 U.S. 824 (1991) (quoting Wainwright v. Witt,
469 U.S. 412, 426 (1985)). Thus, we will reverse a trial
court's finding with respect to juror impartiality "only upon a
showing of manifest error." Weeks v. Commonwealth, 248 Va. 460,
475, 450 S.E.2d 379, 389 (1994), cert. denied, 516 U.S. 829
(1995).
In the present case, the findings of the trial court are
fully supported by the evidence. Divers did not intentionally
give a wrong answer on voir dire; she either did not hear or did
not understand the court's question. Divers also was not biased
against Blevins, and she decided the case impartially based upon
the evidence presented at trial. Clearly, therefore, Blevins
failed to establish either part of the two-part McDonough test.
V
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Blevins, however, asserts not only a claim based upon
allegations of juror dishonesty, but also a general Sixth
Amendment claim of juror bias. In Fitzgerald v. Greene, 150
F.3d 357, 362-63 (4th Cir.), cert. denied, 525 U.S. 956 (1998),
the Court of Appeals for the Fourth Circuit held that "[f]ailure
to satisfy the requirements of McDonough does not end the . . .
inquiry . . . when the [accused] also asserts a general Sixth
Amendment claim challenging the partiality of a juror based upon
additional circumstances occurring outside the voir dire."
Therefore, regardless of whether a juror's answer is honest, an
accused has the right to demonstrate that the juror was actually
biased. Id. at 363.
In the present case, at the post-trial hearing, Blevins
failed to show actual bias. As we have previously noted, the
trial court's findings are fully supported by the evidence and
clearly establish that Divers was free of bias and acted
impartially. Therefore, the trial court did not err in
overruling Blevins' motion for a mistrial, and the Court of
Appeals properly affirmed Blevins' convictions.
VI
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
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