COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee ∗
Argued at Alexandria, Virginia
JORGE ISAAC SAMUDIO PEREZ, S/K/A
JORGE SAMUDIO-PEREZ
OPINION BY
v. Record No. 0180-02-4 JUDGE ROSEMARIE ANNUNZIATA
MAY 20, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Christopher C. Finch (Pelton, Balland, Young,
Demesky, Baskin & O'Malie, P.C., on brief),
for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Samudio-Perez of rape and sentenced him to
serve six years in the penitentiary. 1 On appeal, he contends the
trial judge erred in denying his midtrial motion for a mistrial
arising from a juror's prior relationship with one of the
detectives assigned to the case. For the following reasons, we
affirm.
∗
Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
1
The jury acquitted Samudio-Perez on a charge of animate
object penetration.
Background
On appeal, we view the facts in the light most favorable to
the Commonwealth, the party prevailing below, together with all
reasonable inferences fairly deducible therefrom. See Ortega v.
Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000).
Viewed accordingly, the evidence shows that Walter Sorto was
called as a prospective juror for Samudio-Perez's trial in
October 2001. The prosecutor asked the prospective jurors if any
of them or a family member had been the victim of a sexual
assault. Sorto told the court his nephew had assaulted his
daughter four years earlier. After the prosecution informed
Sorto the case did not involve sexual assault within a family,
Sorto indicated he could be fair to both sides. Defense counsel
did not ask Sorto any questions and did not move to strike him
for cause. The court impaneled the jury, including Sorto, and
counsel gave opening statements. After a short recess, the judge
discovered that a detective in the case, David E. Moore, had
2
investigated the case involving Sorto's daughter. Sorto had not
recognized Detective Moore during opening statements. The judge
brought Sorto into the courtroom and counsel questioned him about
his relationship with Detective Moore:
THE COURT: Mr. Sorto, over break, it came
to my attention that Detective
Moore, who is involved with this
case, may have been involved
with your daughter's case.
MR. SORTO: That's right.
2
The detective recognized Sorto and wrote a note to the
assistant Commonwealth's attorney, who brought the matter to the
judge's attention.
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THE COURT: Has that come to your
recollection?
MR. SORTO: I was actually – I didn't see
him sitting right there. But
later on, when we were talking, I
saw him right there.
THE COURT: Now that you've come to that
realization that he is the same
one, how does that affect your
feeling about the case?
MR. SORTO: It doesn't really affect me at
all. I've been through this. He
was professional.
THE COURT: Did you talk to Detective Moore
in the course of the
investigation of your daughter's
case?
MR. SORTO: Yes, I did.
MS. SWART: Mr. Sorto, in your dealings with
Detective Moore – we're not
asking if you liked him or
disliked him as a person or
anything like that. In this
case, as I told you in opening
statements, he's going to be
testifying as to the entire
interview with this defendant.
Are you going to be able to set
aside your personal experience
with Detective Moore with your
daughter's case and listen to the
whole statement and assess his
credibility, what he says, on
what he says here today?
MR. SORTO: Basically, whatever comes here
right now - comes up right now
is basically what I have to
decide. I'm not going to through
[sic] anybody's judgment.
MS. SWART: That's all the questions I have.
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THE COURT: All right, Mr. Finch. Do you
have any questions?
MR. FINCH: One or two. Sir, you had a
phone sting that was done in your
house with Detective Moore?
MR. SORTO: That's right.
MR. FINCH: He conducted it?
MR. SORTO: That's right.
MR. FINCH: So you got to know each other a
little bit. If it was his word
against somebody else's, wouldn't
you favor Mr. Moore's word?
MR. SORTO: Not at all. It comes to my mind
that if I'm here, as she
mentioned right now, just
basically whatever is proved or
any other type problems that
comes up [sic], that's basically
it. See, I don't see Mr. Moore
as somebody who's going to
interrupt [sic] this kind of
situation. I mean, he's been
through my case and I know him
basically for that particular
occasion, but that's it.
MR. FINCH: But you were favorably impressed
with him?
MR. SORTO: Well, I can't say that right
now. I can't say he was
favorable or not. But I haven't
heard anything yet to say, you
know, of anything [sic]. I don't
know.
MS. SWART: Did you have a favorable
impression of Detective Moore
from that incident [his
daughter's investigation]? Not
now, but back then?
MR. SORTO: From that particular incident, I
did. He was a very professional
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man for that particular case. We
should believe he did a great job
personally on that case [sic]. I
don't know about this. So I
can't say anything right now.
MS. SWART: Today, when he raises his right
hand and swears to tell the
truth, in your mind are you going
to sit there and say, whatever he
says is going to be the truth or
are you going to sit and listen
to his while testimony and try to
figure it out then?
MR. SORTO: Well, I'd rather say listen to
the testimony than rather say
something else.
THE COURT: All right. Thank you, sir. You
may go back to the jury room.
Defense counsel moved for a mistrial based on Sorto's prior
relationship with Detective Moore. 3 The judge denied the motion,
stating "I just can't conclude that he's got any kind of a bias
or pre-disposition one way or another."
During the investigation, Detective Moore was not the lead
investigator on the case, however, he interviewed Samudio-Perez
because he speaks Spanish, Samudio-Perez's native language.
Detective Moore did not record Samudio-Perez's statements and
relied only on his notes from the interview for his testimony.
3
Samudio-Perez also asserted Sorto could have been stricken
for cause had the relationship come to light during voir dire.
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Detective Moore testified that Samudio-Perez made an
incriminating statement to him, specifically noting Samudio-
Perez's admission that the sexual encounter between Samudio-Perez
and the victim occurred without her consent. On direct
examination, Samudio-Perez denied making the incriminating
statement to Detective Moore and stated Moore suggested he write
a letter to the victim. Samudio-Perez wrote the letter, which
also incriminated him.
Analysis
I. Standard of Review
Samudio-Perez's appeal comes to us on a denial of a motion
for a mistrial. Upon familiar principles, we will not reverse
the denial of a motion for a mistrial unless a manifest
probability exists that the trial court's ruling was prejudicial.
See Taylor v. Commonwealth, 25 Va. App. 12, 17, 486 S.E.2d 108,
110 (1997) (citation omitted). 4 We turn now to the substantive
issues presented.
4
Samudio-Perez argues the case at bar is governed by the
same standards we set forth in Green v. Commonwealth, 26 Va.
App. 394, 494 S.E.2d 888 (1998). We find his reliance on Green
is misplaced. In Green, the defendant moved for a mistrial based
on a juror's failure to truthfully answer a question during voir
dire. Id. at 399, 494 S.E.2d at 890. The court recited the
standard of review as follows:
[T]o be entitled to a mistrial for jury
misconduct arising from voir dire, "a party
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."
Id. at 401, 494 S.E.2d at 891 (emphasis added) (quoting Taylor v.
Commonwealth, 25 Va. App. 12, 18, 486 S.E.2d 108, 111 (1997)
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II. Denial of Motion for Mistrial
Under the standard of review set forth above, the party
moving for mistrial, in this case, Samudio-Perez, has the burden
of establishing a manifest probability of prejudice. See Taylor,
25 Va. App. at 17, 486 S.E.2d at 110. To determine if a trial
court's denial of a motion for a mistrial was prejudicial, when a
juror's conduct is at issue, we must look to the juror's possible
bias. The existence of an individual juror's possible bias or
partiality is a question of fact to be determined by the trial
court. See Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d
422, 431 (1985), cert. denied, 475 U.S. 1099 (1986).
Additionally, "[i]t is well settled that the credibility of
witnesses [and] the weight accorded witnesses' testimony . . .
are matters that are within the province of the fact finder."
Brown v. Commonwealth, 25 Va. App. 171, 191, 487 S.E.2d 257, 258
(1997) (citing Barrett v. Commonwealth, 231 Va. 102, 107, 341
S.E.2d 190, 193 (1986)).
(additional citations omitted). Samudio-Perez does not allege
juror misconduct resulting from voir dire; thus, the Green
standard is inapplicable. Moreover, even if we were to accept
the general principles from Green regarding challenges for cause,
the outcome would remain the same. In evaluating both the denial
of a mistrial and a refusal to strike a juror for cause, our
ultimate inquiry is whether the trial court's decision prejudiced
the defendant. Thus, the result reached in the case at bar would
remain the same under both standards.
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The trial court was in the best position to consider Sorto's
response to counsel's questions and resolved the issue of
possible bias in favor of Sorto and the Commonwealth. Sorto
repeatedly informed the court he was able to address the issues
impartially and stated he would not favor Detective Moore's
testimony over another witness' testimony. Furthermore, Sorto
stated he could not determine if Detective Moore had conducted
himself professionally in the case at bar until he considered the
evidence. After further questioning of Sorto by counsel, the
trial judge made a finding of fact that Sorto could be a fair and
impartial juror, stating she could not conclude "[Sorto]'s got
any kind of a bias or pre-disposition one way or another."
Viewing this evidence in the light most favorable to the
Commonwealth, we find there was no "manifest probability" that
the denial of a mistrial was prejudicial to Samudio-Perez. See
Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (1998), rev'd
on other grounds, 527 U.S. 116 (1999).
Samudio-Perez further argues that, if we find Sorto could
have been stricken for cause, then the denial of the motion for a
mistrial should be reversed. In determining a juror's possible
bias, we may consider whether the juror could have been stricken
for cause. See Taylor, 25 Va. App. at 18, 486 S.E.2d at 111.
When there are no grounds to strike a juror for cause, the
juror's presence on the jury will not affect the essential
fairness of a trial and, therefore, we cannot find that prejudice
exists. See id.
In the case at bar, as we have noted, the trial court found
as fact that Sorto was a fair and unbiased juror. Thus, no
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ground for a strike for cause was established. Moreover, Sorto's
relationship with Moore does not establish a per se
disqualification of Sorto as a juror under Virginia law. See
Clozza v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 279
(1984) (holding a prospective juror is not subject to "automatic
exclusion because of an association with law enforcement"). We
have long held that a juror's relationship to a witness does not
require his dismissal per se. See Lilly, 255 Va. at 569-70, 499
S.E.2d at 531. In Lilly, the Supreme Court evaluated the
propriety of seating a juror who had a prior relationship with a
police officer witness and stated: "A juror's relationship to
such a police officer witness does not require per se dismissal
of that juror from the venire, and the juror may be retained if
the trial court is satisfied that the juror can set aside
considerations of the relationship and evaluate all the evidence
fairly." Id. at 570, 499 S.E.2d at 531. Given these principles
and the trial court's conclusion that Sorto could set aside his
prior relationship with Detective Moore and evaluate the evidence
fairly and impartially, we find that Samudio-Perez's grounds for
reversal of the trial court's denial of his mistrial motion are
without merit.
Samudio-Perez finally argues that permitting Sorto to remain
on the jury would erode public confidence in the integrity of
criminal trials. To support his argument, Samudio-Perez relies
on several recent cases, decided by the Virginia Supreme Court,
in which the court determined that "'[p]ublic confidence in the
integrity of the process is also at stake,'" when a juror's
selection is questioned, and is a factor to consider in
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determining whether a potential juror should be seated. 5
Cantrell v. Crews, 259 Va. 47, 51, 523 S.E.2d 502, 504 (2000);
see also Barrett v. Commonwealth, 262 Va. 823, 553 S.E.2d 731
(2001); Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28
(2000).
In Cantrell, a juror was a client of a law firm representing
one of the parties at trial. Although the trial court determined
that the juror could be fair to both sides, the Supreme Court
reversed the trial court's decision, stating, "[Public confidence
in the integrity of the process] cannot be promoted when a
sitting juror is, at the time of trial, a client
5
The Commonwealth argues Samudio-Perez's reliance on Medici
v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), is barred
procedurally because he failed to raise the issue at trial. See
Rule 5A:18. This Court recently held, in Patterson v.
Commonwealth, 39 Va. App. 658, 576 S.E.2d 222 (2003), that an
analysis of "public confidence" is inherent in any appellate
review of a juror's impartiality. We assume without deciding
that Patterson applies here and consider the issue on the
merits.
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of the law firm representing one of the parties to the
litigation . . . ." Cantrell, 259 Va. at 51, 523 S.E.2d at 504.
The Supreme Court addressed the issue again in Medici, a
case in which a potential juror's husband had been murdered and
the person accused of his murder was represented by the same
public defender's office as Medici, the defendant. The juror
stated she could judge the evidence fairly and impartially and
she was impaneled. The Supreme Court reversed and held the trial
court erred in not striking the juror for cause, concluding that
"permitting her to sit as a juror, in the circumstances of this
case . . . weaken[ed] public confidence in the integrity of
criminal trials." Medici, 260 Va. at 227, 532 S.E.2d at 31.
Finally, the Supreme Court underscored the importance of
safeguarding public confidence in jury selection in Barrett,
where a prospective juror's brother was a police officer who
would testify for the Commonwealth during the trial. The trial
court found the juror could be fair and impartial and denied
Barrett's motion to strike the juror for cause. The Supreme
Court reversed the trial court's decision, stating:
Our consideration of prospective juror
Wade's answers gives us no reason to
question the honesty and sincerity of his
determination to discharge his duties as
juror in an unbiased manner. . . . However
in [Medici and Cantrell] . . . we recognized
that in constituting the jury panel,
"[p]ublic confidence in the integrity of the
process" is also "at stake." . . . In the
recited circumstances of this case we think
that a refusal to strike the prospective
juror for cause makes it unlikely that the
public would have confidence in the judicial
process.
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Barrett, 262 Va. at 826-27, 553 S.E.2d at 733 (citations
omitted).
Citing these principles, Samudio-Perez contends the
relationship between Sorto and Detective Moore "creates the
perception that the integrity of the [judicial] process is at
stake" and that permitting Sorto to remain on the jury would
"weaken the public confidence in the integrity of criminal
trials." We disagree.
All the challenged jurors in Cantrell, Medici, and Barrett
had in common a contemporaneous and continuing relationship with
legal counsel or a witness in the case. By contrast, Sorto had a
single contact with Moore four years earlier, but had no
contemporaneous or continuing relationship with him. Thus,
Sorto's prior "relationship" with Detective Moore bears no
affinity to the types of juror relationships found prejudicial in
Cantrell and its progeny. We, therefore, find no error in the
trial court's refusal of Samudio-Perez's motion for a mistrial,
and we affirm.
Affirmed.
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Agee, J. concurring.
I agree with the majority opinion, but write separately
because I would also hold Rule 5A:18 bars the issue first raised
on appeal that seating juror Sorto would erode public confidence
in the integrity of criminal trials.
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18 (emphasis added). "The main purpose of
requiring timely specific objections is to afford the trial court
an opportunity to rule intelligently on the issues presented,
thus avoiding unnecessary appeals and reversals." Ohree v.
Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488 (1998).
When such specific objections have not been made, this Court will
not consider an argument on appeal which was not presented to the
trial court. Id. at 308, 494 S.E.2d at 488 (citing Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)).
This rule also applies to constitutional claims. Id. (citing
Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900
(1992)).
At no time did Samudio-Perez raise for the trial court's
consideration the argument he makes on appeal that "the
relationship between Detective Moore and Juror Sorto is of the
sort that creates the perception that the integrity of the
process is at stake." He cites Medici v. Commonwealth, 260 Va.
223, 532 S.E.2d 28 (2000), as the foundation for his new
appellate claim although he failed to present that case (or any
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other) to the trial court. 6
Samudio-Perez's failure to raise this argument at trial
forecloses his ability to raise the claim for the first time on
appeal. Further, Samudio-Perez has cited no "good cause" for his
failure to raise the issue or proffered any reason as to why the
ends of justice exception should apply. Therefore, the
application of Rule 5A:18 should dispose of Samudio-Perez's
appeal on this issue.
The Supreme Court of Virginia has rendered several recent
decisions where new trials were ordered because a juror was
inappropriately seated. See Barrett v. Commonwealth, 262 Va.
823, 553 S.E.2d 731 (2001); Medici, 260 Va. 223, 532 S.E.2d 28;
Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (2000). The
Supreme Court found in these cases the trial court had abused its
discretion in the seating of the juror in question because
seating that juror would cause "public confidence in the
integrity of the process" to be diminished. However, none of
these cases address whether the appellant raised the issue of
"public confidence and the integrity of the process" at trial or
7
whether the opposing party argued the application of Rule 5:25.
I do not read our recent decision in Patterson v.
Commonwealth, 39 Va. App. 658, 576 S.E.2d 222 (2003), to void the
6
Medici was released June 9, 2000. Samudio-Perez's trial
was sixteen months later, October 24, 2001.
7
For present purposes, I assume Rules 5:25 and 5A:18 are
interchangeable and what is said in application to one applies
to the other.
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application of Rule 5A:18 when a "Medici" claim is made. 8 In
Patterson, a panel of this Court found a Medici claim was not
procedurally barred by Rule 5A:18. The ratio decidendi of the
panel opinion was not that Cantrell and its progeny established,
as a matter of law, the inapplicability of Rule 5A:18 when a
"public confidence" claim is raised for the first time on appeal.
Instead, based on the facts in the record of that case, the
Patterson panel held that although the "appellant did not
specifically use the words 'public confidence' at trial, he did
ask the court to strike the juror for cause, based on his
relationship with the Orange County Sheriff's Department and the
information he received from them." 39 Va. App. at 666, 576
S.E.2d at 226.
This finding in Patterson represents a determination that
the appellant in that case sufficiently raised the issue in the
trial court so as to vitiate the application of Rule 5A:18. It
was not a holding that a Medici claim cannot be procedurally
barred as a matter of law.
The Supreme Court of Virginia has consistently affirmed in
evaluating error in the seating of a juror, that "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,
262 Va. at 826, 553 S.E.2d at 732 (citing Medici, 260 Va. at
8
By Medici claim, I mean the assertion that the seating of
a juror was error because the juror's presence would cause
public confidence in the integrity of the judicial system to be
diminished.
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227, 532 S.E.2d at 30); see also Cantrell, 259 Va. at 50, 523
S.E.2d at 504; Vinson v. Commonwealth, 258 Va. 459, 467, 522
S.E.2d 170, 176 (1999). While "public confidence in the
integrity of the process is one of the elements a trial court
should consider when deciding whether a juror should be struck
for cause," Barrett, 262 Va. at 826-27, 553 S.E.2d at 733,
nothing in that maxim contradicts or overrides the obligation of
a party to raise that issue in the trial court and not for the
first time on appeal.
To the contrary, the Supreme Court has repeatedly reiterated
the primacy of Rule 5:25. For example, in Buck v. Commonwealth,
247 Va. 449, 443 S.E.2d 414 (1994), a case involving Batson
objections to the exclusion of certain persons on the basis of
race from the venire, Buck's "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, the failure to request that the trial
court give an instruction to the jury on the abolition of parole
pursuant to Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629
(2000), cannot be raised for the first time on appeal.
Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d 754 (2002). The
Court specifically noted "the consistent application of Rule 5:25
advances the rule's purpose of avoiding unnecessary reversals and
trials." Id. at 93, 556 S.E.2d at 757.
While "public confidence in the integrity of the process" is
an important consideration, it is of no higher rank than the
assertion of racial prejudice in the selection of jurors under
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Batson or in the fair instruction of the jury for sentencing
through their knowledge of the abolition of parole under Jerman.
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.
Accordingly, I would also affirm the ruling of the trial
court, denying Samudio-Perez's motion for a mistrial, because his
Medici argument on appeal is barred from consideration under Rule
5A:18.
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