COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Senior Judge Coleman
Argued at Richmond, Virginia
CARLOS LOVOS-RIVAS
OPINION BY
v. Record No. 0356-10-2 JUDGE RANDOLPH A. BEALES
MARCH 29, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
David H. Beck, Judge
Ronald Hur, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for
appellee.
Carlos Lovos-Rivas (appellant) was convicted of one count of forcible sodomy, in
violation of Code § 18.2-67.1, 1 and one count of aggravated sexual battery, in violation of Code
§ 18.2-67.3. On appeal, appellant argues that the trial court committed manifest error when it
denied his motion to exclude all but seven of the remaining prospective jurors during voir dire.
Disagreeing with appellant’s argument, we affirm the convictions for the following reasons.
I. BACKGROUND
At the outset of voir dire, the trial court asked the prospective jurors several questions.
Their responses indicated that they had no personal interest in the trial, that they had obtained no
information about the alleged offenses, that they had not expressed any opinion about appellant’s
guilt or innocence, and that they were unaware of any bias they would have toward appellant or
1
The jury acquitted appellant on a second count of forcible sodomy.
the Commonwealth. The prospective jurors indicated that they understood that appellant was
presumed innocent, that appellant did not have to produce any evidence or testify in his own
behalf, and that the Commonwealth had to prove appellant’s guilt beyond a reasonable doubt.
With the exception of one prospective juror, who was excluded from the venire by the trial court,
all of the prospective jurors indicated that they knew of no reason why they could not be fair and
impartial to the parties or why they could not decide the case based solely on the court’s legal
instructions and the evidence that would be presented during the trial.
Next, the prosecutor asked whether any of the prospective jurors, or their family
members or friends, had been sexually assaulted. Several of the prospective jurors responded in
the affirmative. These persons were then asked individually whether they could render a fair and
impartial verdict in light of their past experiences with sexual assaults. Some of these
prospective jurors said that they could not render a fair and impartial verdict – and, consequently,
were stricken for cause – while others indicated that they could be fair and impartial.
Appellant’s trial counsel then examined the prospective jurors. Noting that some of the
prospective jurors had children and others had young relatives, defense counsel asked, “[W]ould
it be fair to say that if your cousin, child, niece, nephew, came up to you, tugged on your arm,
and said that person did something to me, you would automatically believe the child?”
According to the trial transcript, “several jurors” answered in the affirmative, while five
prospective jurors indicated that they would not “automatically” believe the child.
Rephrasing the question, defense counsel asked, “[I]f an unknown child came to you and
said that person did something to me, and that person happens to be an adult, would you be prone
to believe that child?” Again, “several jurors” answered in the affirmative. One prospective
juror responded in the negative.
-2-
Defense counsel then asked, “[W]ould you be partial in believing the child and even to
the point where if the adult comes up and says it didn’t happen that you would not believe the
adult?” This question received no response from the prospective jurors.
Finally, defense counsel asked, “Would you believe the child – and this is the unknown
child – even in a situation where the adult says it didn’t happen?” According to the trial
transcript, “several jurors” again responded in the affirmative, while seven prospective jurors
responded in the negative – Juror Numbers 36, 14, 20, 1, 8, 11, and 48. Defense counsel asked
no more questions on this subject.
At the conclusion of voir dire, appellant moved to strike “the entire venire with the
exception of” Juror Numbers 36, 14, 20, 1, 8, 11, and 48. Defense counsel explained:
The specific issue [is] counsel asked the question if your child
came up to you and said this, would you believe the child,
predominantly all of them answered yes. I asked if an unknown
child came up to you and said this happened and the adult later
said it did not happen, would you be prone to believe the child, and
the answer, again, for the most part was yes. I asked them the
followup question of would you be partial to the child, and, again,
the answer was yes.
The only ones who answered in the negative were thirty-six,
fourteen, twenty, one, eight, forty-eight, and eleven.
The trial court denied appellant’s motion, noting that the venire “has stated that it can be
fair and impartial, that it clearly stated its understanding that Mr. Lovos-Rivas stands not guilty
at this stage of the proceeding, [and] that the Commonwealth carries the burden of proof to prove
beyond a reasonable doubt.” The trial court found that the venire, as it was constituted at that
point in the proceeding, “can indeed be fair and impartial.”
II. ANALYSIS
Appellant argues that the trial court committed reversible error when, near the conclusion
of voir dire, it denied his motion to strike for cause the vast majority of the remaining
-3-
prospective jurors. Appellant contends that these prospective jurors (all but seven of the
remaining members of the venire) “disclosed their bias in being partial toward the testimony of a
child over that of an adult.” Consequently, appellant claims, he was denied his right to a fair and
impartial jury. See Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 736-37
(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.” Salina v. Commonwealth, 217 Va. 92, 93, 225
S.E.2d 199, 200 (1976). Therefore,
[t]he court and counsel for either party shall have the right to
examine under oath any person who is called as a juror therein and
shall have the right to ask such person or juror directly any relevant
question to ascertain whether he is related to either party, or has
any interest in the cause, or has expressed or formed any opinion,
or is sensible of any bias or prejudice therein; and the party
objecting to any juror may introduce any competent evidence in
support of the objection; and if it shall appear to the court that the
juror does not stand indifferent in the cause, another shall be drawn
or called and placed in his stead for the trial of that case.
Code § 8.01-358; see Rule 3A:14. If a prospective 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.” Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931 (1914).
However, ‘“[i]t is not uncommon to discover during voir dire that prospective jurors have
preconceived notions, opinions, or misconceptions about the criminal justice system, criminal
trials and procedure, or about the particular case.’” Cressell v. Commonwealth, 32 Va. App.
744, 761, 531 S.E.2d 1, 9 (2000) (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621, 454
S.E.2d 363, 364 (1995)). “The opinion entertained by a juror, which disqualifies him, is an
opinion of that fixed character which repels the presumption of innocence in a criminal case, and
in whose mind the accused stands condemned already.” Justus v. Commonwealth, 220 Va. 971,
-4-
976, 266 S.E.2d 87, 91 (1980) (citation omitted and emphasis added). Thus, ‘“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.’” Cressell, 32 Va. App. at 761,
531 S.E.2d at 9 (quoting Griffin, 19 Va. App. at 621, 454 S.E.2d at 364).
Given that the trial court is ‘“able to see and hear each member of the venire respond to
questions posed’” during voir dire, it ‘“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.’” Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005) (quoting
Green v. Commonwealth, 262 Va. 105, 115-16, 546 S.E.2d 446, 451 (2001)). Juror impartiality
is a question of fact, see Wainwright v. Witt, 469 U.S. 412, 428 (1985), and a trial court’s
decision to seat a juror is entitled to great deference on appeal, see McGill v. Commonwealth, 10
Va. App. 237, 241, 391 S.E.2d 597, 600 (1990). Accordingly, the decision to retain or exclude a
prospective juror “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, 732
(2001).
In determining whether the trial court should have excluded the prospective jurors
challenged by appellant, this Court must consider the “‘entire voir dire, not just isolated
portions.’” Juniper v. Commonwealth, 271 Va. 362, 401, 626 S.E.2d 383, 408 (2006) (quoting
Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004)). However, in this
case, appellant relies on an isolated portion of voir dire in making his argument that the trial
court should have excluded all but seven remaining prospective jurors.
During this portion of voir dire, defense counsel posed a few questions about the
prospective jurors’ inclination to believe a child’s complaint of sexual abuse. Defense counsel’s
-5-
final question on this subject asked if the prospective jurors would believe the claim of an
“unknown child” even if an adult denied that sexual abuse occurred. Seven prospective jurors
responded in the negative to this question. The trial transcript reflects that “several jurors”
responded in the affirmative. However, the transcript does not reflect that all of the prospective
jurors who did not respond in the negative to defense counsel’s question actually responded in
the affirmative to this question. It is certainly possible – and appears likely – that some of the
prospective jurors did not respond to this question at all, especially since none of the prospective
jurors responded to the previous question from defense counsel. Nevertheless, after posing this
final question about the “unknown child,” defense counsel broadly moved to strike for cause all
of the prospective jurors (except for the seven prospective jurors who responded in the negative
to this question).
Not only does the record fail to establish that all of these prospective jurors actually
responded in the affirmative to defense counsel’s question about an unknown child, but the
“several jurors” who did respond in the affirmative were not questioned any further on this
subject. 2 Thus, we certainly cannot conclude from this brief and isolated portion of voir dire that
any of these prospective jurors actually held “a preconceived view that is inconsistent with an
ability to give [appellant] a fair and impartial trial” in this case. Sizemore v. Commonwealth, 11
Va. App. 208, 211, 397 S.E.2d 408, 410 (1990).
In Mullis v. Commonwealth, 3 Va. App. 564, 351 S.E.2d 919 (1987), this Court
addressed a similar situation. There, Mullis’s trial counsel asked the following question during
voir dire: “[I]f a police officer gives some testimony and a private citizen gives testimony that
2
We note that the decision to question prospective jurors individually is within the trial
court’s discretion. Fisher v. Commonwealth, 236 Va. 403, 410-11, 374 S.E.2d 46, 50 (1988).
Here, appellant’s counsel never even sought the trial court’s permission to question any of the
prospective jurors individually.
-6-
differs from what the police officer said -- are there any of you who would believe or have a
tendency to believe the police officer as opposed to the private citizen? . . . This is if all things
are equal.” Four of the veniremen answered “yes” or “probably.” The trial court denied Mullis’s
motion to strike these four jurors for cause. Id. at 569-70, 351 S.E.2d at 922-23. On appeal, this
Court affirmed that ruling, holding:
The general abstract question put to the jurors, without more, made
it difficult for them to give a meaningful answer and is a poor
indication of the manner in which they would serve as jurors and
evaluate any particular police testimony. Certainly their responses
did not indicate to the trial judge who heard the entire voir dire and
observed the prospective jurors that they would give unqualified
credence to the testimony of a police officer. At most, their
responses indicated that as an abstract proposition they would
probably or would have a tendency to give some weight to the fact
that a witness was a police officer in resolving credibility issues if
all else were equal.
Id. at 571-72, 351 S.E.2d at 924 (emphasis added); see O’Dell v. Commonwealth, 234 Va. 672,
694, 364 S.E.2d 491, 503 (1988).
As in Mullis, the record here does not establish that the prospective jurors whom
appellant sought to exclude held firm opinions of such “fixed character which repel[] the
presumption of innocence in a criminal case, and in whose mind the accused stands condemned
already.” Justus, 220 Va. at 976, 266 S.E.2d at 91. At most, “several” prospective jurors in this
case, like the jurors in Mullis, expressed agreement with an “abstract proposition” raised by
defense counsel. 3 Mullis, 3 Va. App. at 572, 351 S.E.2d at 924. The prospective jurors
3
We observe that the prospective jurors’ responses during voir dire in this case did not
even raise the possibility of jurors giving “unqualified credence to the testimony of a law
enforcement officer” and deciding credibility issues “solely on that basis” – which was the issue
addressed (and rejected) by this Court in Mullis. 3 Va. App. at 571, 351 S.E.2d at 923. As this
Court stated in Mullis, “For a juror to give unqualified credence to the testimony of a law
enforcement officer and to decide credibility issues solely on that basis is an impermissible basis
for resolving credibility and would constitute bias.” Id.; see also Chavez v. United States, 258
F.2d 816, 819 (10th Cir. 1958) (“A defendant cannot be fairly tried by a juror who would be
inclined to give unqualified credence to a law enforcement officer simply because he is an
-7-
appellant sought to exclude perhaps indicated a tendency to believe an abstract “unknown
child,” 4 but the record below simply does not reveal “the nature and strength of the opinion
formed” by these prospective jurors. Briley v. Commonwealth, 222 Va. 180, 185, 279 S.E.2d
151, 154 (1981). Because defense counsel did not ask any further questions of the venire as a
whole or seek to question the prospective jurors individually, we cannot determine whether any
of these prospective jurors indicated a “casual impression” or held a “deep and abiding
conviction.” Hopson v. Commonwealth, 52 Va. App. 144, 152, 662 S.E.2d 88, 93 (2008)
(quoting Briley, 222 Va. at 185, 279 S.E.2d at 154). Consequently, the isolated portion of voir
dire appellant relies upon does not reveal that any of the prospective jurors were unable to decide
the facts of this case fairly and impartially.
In addition, considering the entire voir dire, not just isolated portions, Juniper, 271 Va. at
401, 626 S.E.2d at 408, we note that the prospective jurors in this case indicated that they had no
pre-existing opinions about appellant’s guilt or innocence, that they had not obtained any
information about the offenses charged against appellant, that they were not biased toward either
appellant or the Commonwealth, and that they could give appellant a fair and impartial trial
officer.”). Unlike in Mullis, therefore, the issue raised on appeal here does not involve the grave
concern of jurors allegedly giving unqualified credence to the testimony of a police officer
simply because of the officer’s official status.
4
Here, the voir dire questions posed by appellant’s counsel did not even concern trial
testimony. Contra Mullis, 3 Va. App. at 569-70, 351 S.E.2d at 922-23 (where the prospective
jurors were asked if they would believe a police officer or a private citizen “if a police officer
gives some testimony and a private citizen gives testimony that differs from what the police
officer said” (emphasis added)). Appellant’s counsel in this case asked the prospective jurors to
imagine a child relative “tugg[ing] on your arm” or an unknown child “c[oming] to you” –
situations that do not at all concern assessing the credibility of witnesses at a trial. Therefore, the
venire’s responses to appellant’s counsel’s questions shed even less light here than in Mullis on
the question of whether members of the venire had formed fixed opinions concerning the
credibility of trial witnesses that are inappropriate for jurors at a criminal trial.
-8-
based on the applicable law and the facts of the case. See Mullis, 3 Va. App. at 572, 351 S.E.2d
at 924 (noting that the prospective jurors in that case made the same assurances).
Observing the venire from its “superior position” for determining the fitness of each
prospective juror, Townsend, 270 Va. at 329, 619 S.E.2d at 73, the trial court found that the
prospective jurors remaining on the venire at the time of appellant’s motion to strike most of
those jurors would “indeed be fair and impartial.” This finding is entitled to great deference on
appeal. See McGill, 10 Va. App. at 241, 391 S.E.2d at 600. Therefore, the trial court’s decision
to retain the remaining members of the venire – and not just the seven prospective jurors
appellant did not seek to exclude – certainly did not amount to manifest error. See Barrett, 262
Va. at 826, 553 S.E.2d at 732.
III. CONCLUSION
The trial court did not commit manifest error when it denied appellant’s motion to strike
for cause all but seven of the remaining prospective jurors. Therefore, we will not disturb the
trial court’s decision on appeal. Accordingly, for the foregoing reasons, we affirm appellant’s
convictions for forcible sodomy and aggravated sexual battery.
Affirmed.
-9-