COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman
Argued at Salem, Virginia
MINH NGOC TRAN
MEMORANDUM OPINION * BY
v. Record No. 1610-07-3 JUDGE SAM W. COLEMAN III
DECEMBER 9, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M. D. Turk, Judge
Stephanie G. Cox (Frank, Spicer & Cox, P.C., on brief), for
appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
Minh Ngoc Tran, appellant, appeals a conviction for misdemeanor assault and battery. On
appeal, he contends the trial court erred by: (1) denying his motion to strike a prospective juror for
cause; and (2) denying his request to admonish the jury that evidence of two prior convictions
should be disregarded as evidence of appellant’s guilt of the amended charge. Finding no error, we
affirm appellant’s conviction.
BACKGROUND
On voir dire, the trial court asked whether the prospective jurors had acquired any
information about the alleged offense or appellant from the news media or any other source.
Several jurors, including prospective Juror Hudgins, raised their hands. The trial court then asked:
[C]onsidering what you may have heard or may have read about
this case . . . do you believe that you can enter the jury box with an
open mind and wait until the entire case is presented before you
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reach a fixed opinion or conclusion as to the guilt or innocence of
[appellant]? Do any of you have a problem with that, based upon
what you may have heard or read in the past?
The prospective jurors responded in the negative. The trial court asked, “Each of you can
put it aside and judge this case fairly and impartially based solely on the evidence and the law
that is presented to you today?” The record shows that the potential jurors responded
affirmatively to this question.
Appellant’s counsel then questioned prospective Juror Hudgins concerning what she had
learned through the media. The following exchange occurred:
[APPELLANT’S COUNSEL]: Ms. Hudgins, you raised your hand
about having heard something either about this case or [appellant]
through the media.
HUDGINS: Uh-huh.
[APPELLANT’S COUNSEL]: Do you know approximately when
that was or how you heard that?
HUDGINS: Well I read the newspaper, The Roanoke Times,
every day so I read several articles . . . over time about . . . the
different charges that have been brought up . . . against him.
[APPELLANT’S COUNSEL]: So you have been kind of
following the story.
HUDGINS: Yes, I followed this story along and I knew a case
was pending against him.
[APPELLANT’S COUNSEL]: Okay.
HUDGINS: And I knew that he had been charged before and had
been convicted before of molestation charges.
[APPELLANT’S COUNSEL]: Okay, do you feel like because you
have been following this story in the media that . . . there is
probably information in that story that you will not hear in this
courtroom?
HUDGINS: That very well could be.
[APPELLANT’S COUNSEL]: Okay. Would it be difficult for
you to set aside the information that you gleaned from the press
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and the media and just try to focus on what you are going to hear
here today?
HUDGINS: Well, you know, perhaps; I mean, sometimes there
are things that, you know, that you already know, they are stored in
your brain and, you know. There is a reporter’s bias when
someone writes a story and, you know, sometimes it is already
there.
[APPELLANT’S COUNSEL]: Okay.
HUDGINS: I will say that.
[APPELLANT’S COUNSEL]: Okay.
HUDGINS: But I will set it aside and I will try to hear this from
what I hear today.
[APPELLANT’S COUNSEL]: Okay, but I think you said a
moment ago that that might be difficult and it is possible that you
might bring this extraneous information back into the jury room
with you because you have been following this story.
HUDGINS: Well, . . . I am one of those newspaper readers. I read
it from front to back.
* * * * * * *
HUDGINS: [I]t is a local case and it is a case of interest and I
have followed it.
* * * * * * *
HUDGINS: It is something that I was interested in.
* * * * * * *
HUDGINS: So I probably have more knowledge is what I am
trying to tell you. I probably have more knowledge just going in.
[APPELLANT’S COUNSEL]: Than what you are going to hear?
HUDGINS: Than what I am going to hear.
[APPELLANT’S COUNSEL]: Okay. And you think it would be
difficult for you to divorce yourself from that information going
in?
HUDGINS: There is a likelihood of that.
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The trial court then asked potential Juror Hudgins several questions:
[TRIAL COURT]: Ms. Hudgins, if I tell you to put that aside and
not consider it at all in this case, can you put that aside?
HUDGINS: I certainly can put it aside but like I said, you know,
there is obviously information.
[TRIAL COURT]: Right, but if I tell you not to consider any of
that information, you can do that?
HUDGINS: Yes sir, I can.
Appellant’s counsel moved to strike prospective Juror Hudgins based on her answer that
there was a “likelihood” she would consider the information she learned from the newspaper
articles during the deliberations. The trial court denied the motion, stating, “When I asked her if
she could put it aside, she said she could.” Appellant used a peremptory strike to remove
potential Juror Hudgins.
During the trial for the felony crime of sexual battery, third or subsequent offense, the trial
court admitted two prior conviction orders for sexual battery as evidence of appellant’s prior
offenses. At the conclusion of the presentation of evidence, appellant made a motion to strike the
charge of sexual battery. The trial court reduced the charge to misdemeanor assault and battery.
In Jury Instruction No. 8, the trial court admonished the jury: “Evidence that the defendant
was previously convicted of a similar offense is not proof that he committed a battery on or about
March 1, 2006 to March 31, 2006.” During deliberations, the jury asked, “Can we use the
conviction of the similar case as evidence to consider during the deliberations?” The jury also
requested to see the prior conviction orders.
Appellant’s counsel asserted that the evidence of the prior convictions would not have been
admitted as evidence in the trial had the original charge been for an assault and battery offense.
Therefore, she asked the trial court to admonish the jury that the proof of prior convictions by
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appellant was not evidence to be considered in the case. The Commonwealth responded that Jury
Instruction No. 8 covered the matter.
The following exchange between the trial court and a juror took place:
[TRIAL COURT]: I have received the question that you had. The
instruction packet that you have answers the question, I think, and
there is an instruction that deals with it and I will ask you to go
back and review that instruction, okay. I think that is the best I can
tell you at this point.
JUROR: Which instruction, Your Honor. What number?
[TRIAL COURT]: If you will review the packet, okay. There is
an instruction in there that deals with, I think, this particular
instance, okay.
JUROR: Can we see the evidence that was passed around when
we were sitting here?
[TRIAL COURT]: No sir, no sir. Thank you all.
JUROR: I think there is some confusion about the instruction on
how to view that. We knew there was an instruction in there, but
there may be some misinterpretation about that instruction.
[TRIAL COURT]: I think the instruction is fairly self-explanatory.
If there is some other confusion, let me know and we will see what
we can do.
After the jury returned to continue its deliberations, appellant’s counsel again expressed
concern to the trial court that the jury appeared to be considering the evidence of the prior
convictions “as some type of evidence on this assault and battery charge.” She requested the
court to admonish the jury that “[the prior convictions] cannot be used as evidence.” The trial
court reiterated that Jury Instruction No. 8 addressed the matter. Appellant’s counsel asserted,
“[I]t’s not really an admonition in light of the current charge that they are considering, which is
obviously different from where we started today.” Counsel also expressed her continuing
concern that the jury was considering the evidence despite the instruction given. The trial court
refused to further instruct the jury. The jury returned a guilty verdict.
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ANALYSIS
Motion to Strike Juror
An accused is constitutionally guaranteed the right to trial
by an impartial jury. “Trial courts, as the guardians of this
fundamental right, have the duty to procure an impartial jury,” a
responsibility primarily discharged “through meaningful voir
dire.” “[T]he test of impartiality is whether the venireperson can
lay aside . . . preconceived views and render a verdict based solely
on the law and evidence presented at trial.” “A juror who holds a
preconceived view that is inconsistent with an ability to give an
accused a fair and impartial trial, or who persists in a
misapprehension of law that will render him incapable of abiding
the court’s instructions and applying the law, must be excluded for
cause.” “[I]n determining whether a prospective juror should have
been excluded for cause, we review the entire voir dire, rather than
a single question and answer.”
Brown v. Commonwealth, 28 Va. App. 315, 326-27, 504 S.E.2d 399, 404-05 (1998) (citations
omitted).
The standard to be applied by the trial court in determining
whether to retain a venireman on the jury panel is whether his
answers during voir dire examination indicate to the court
something that would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.
Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990) (citing Adams v. Texas,
448 U.S. 38, 45 (1980)).
On appeal, “we must give deference to the trial court’s decision whether to retain or
exclude individual veniremen because the trial court ‘sees and hears the juror.’” Id. (quoting
Wainwright v. Witt, 469 U.S. 412, 426 (1985)). We will not disturb the trial court’s decision
“absent a showing of ‘manifest error.’” Id. (quoting Spencer v. Commonwealth, 240 Va. 78, 94,
393 S.E.2d 609, 619 (1990)).
Although potential Juror Hudgins stated she had read newspaper articles concerning other
charges brought against appellant, in response to several questions posed by the trial court, she
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stated that she could decide the case without prejudice. During voir dire of the potential jurors
and prior to the disclosure that she had read newspaper articles, prospective Juror Hudgins did
not indicate that she knew of any reason why she could not give a fair and impartial trial to both
parties based solely on the law and evidence presented at the trial. Furthermore, during
questioning by appellant’s counsel, potential Juror Hudgins volunteered, “But I will set [the
information from the media reports] aside and I will try to hear this from what I hear today.”
“Proof that a prospective juror is impartial and fair should come from the juror and not be based
on his or her mere assent to persuasive suggestions.” Williams v. Commonwealth, 14 Va. App.
208, 214-15, 415 S.E.2d 856, 860 (1992) (citing Breeden v. Commonwealth, 217 Va. 297, 300,
227 S.E.2d 734, 736 (1976)). After spontaneously stating she would set aside the information
she had read, potential Juror Hudgins reaffirmed to the trial court that she could put aside what
she had read and not consider it during deliberations.
On appeal, this Court reviews the entire voir dire process. Here, the trial court had the
opportunity to observe the prospective juror’s answers and demeanor. Because potential Juror
Hudgins indicated she could be impartial and disregard the news account she had read, the trial
court’s refusal to strike her for cause was not an abuse of discretion. See Thomas v.
Commonwealth, 263 Va. 216, 231, 559 S.E.2d 652, 660 (2002) (“A potential juror who has
knowledge of the case, even if such person has formed an opinion about the case, is entitled to sit
on the jury if that opinion can be set aside.”).
“It is not required . . . that the jurors be totally ignorant of the facts
and issues involved. In these days of swift, widespread and
diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will not have
formed some impression or opinions as to the merits of the
case. . . . It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in
court.”
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Brown, 28 Va. App. at 329-30, 504 S.E.2d at 406 (quoting Irvin v. Dowd, 366 U.S. 717, 722-23
(1961)).
Prior Conviction Jury Instruction
In order to prove the enhanced penalty necessary for the charge of sexual battery, third or
subsequent offense, the trial court admitted into evidence appellant’s two prior conviction orders
for sexual battery. See Berry v. Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687
(1996) (prior conviction admissible if probative of an element of offense charged or required
predicate for enhanced punishment). Appellant acknowledges that these prior convictions were
relevant and admissible to the prosecution of the original charge. However, he contends that the
information became irrelevant and highly prejudicial to the charge the jury was ultimately called
upon to consider, the lesser-included offense of assault and battery.
The trial court addressed this matter by giving Jury Instruction No. 8, which was a correct
statement of the law. “A reviewing court’s responsibility in reviewing jury instructions is ‘to see
that the law has been clearly stated and that the instructions cover all issues which the evidence
fairly raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).
During the deliberations, the jury asked, “Can we use the conviction of the similar case as
evidence to consider during the deliberations?” The jury also requested to see the prior conviction
orders and expressed confusion about how to interpret “the instruction.” In response, the trial court
referred the jury to the instructions as given and refused to further instruct or admonish the jury.
Appellant contends the juror’s questions make it evident that the prior convictions were “very much
a part of [its] deliberations.” However,
the deliberations of jurors “during retirement, their expressions,
arguments, motives, and beliefs represent that state of mind which
must precede every legal act and is in itself of no jural
consequence.” A question posed to the court during deliberations,
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after all, could suggest as little as the tentative views of a single
juror.
Ludwig v. Commonwealth, 52 Va. App. 1, 14-15, 660 S.E.2d 679, 685 (2007) (quoting
Kennemore v. Commonwealth, 50 Va. App. 703, 709, 653 S.E.2d 606, 609 (2007)). See also
Couture v. Commonwealth, 51 Va. App. 239, 248, 656 S.E.2d 425, 429 (2008) (“[N]either the
jury’s question nor its ultimate verdict shakes our confidence in the jurors’ presumed obedience
to the trial court’s directive to resolve all issues in the case . . . solely on the basis of the
instructions of law already given.”).
Furthermore,
“[o]nce the judge has made an accurate and correct charge, the
extent of its amplification must rest largely in his discretion. The
trial judge, in the light of the whole trial and with the jury before
him, may feel that to repeat the same words would make them no
more clear, and to indulge in variations of statement might well
confuse. How far any charge on technical questions of law is
really understood by those of lay background would be difficult to
ascertain, but it is certainly more evident in the living scene than in
a cold record.”
Kennemore, 50 Va. App. at 712-13, 653 S.E.2d at 610-11 (quoting United States v. Bayer, 331
U.S. 532, 536-37 (1947)).
The granted jury instructions covered the issues raised by the evidence and addressed the
question submitted by the jury. On this record, we cannot say the trial court abused its discretion
by referring the jury to the instructions with no further amplification. “‘A trial judge does not
abuse his discretion by failing to modify a correct statement of the law on the mere chance that a
jury may not follow clearly written instructions.’” Ludwig, 52 Va. App. at 13, 660 S.E.2d at 684
(quoting Gaines v. Commonwealth, 39 Va. App. 562, 567, 574 S.E.2d 775, 777 (2003) (en
banc)).
For the reasons stated herein, we affirm appellant’s conviction.
Affirmed.
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