Blevins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia

LAWRENCE KEVIN BLEVINS
OPINION BY
v. Record No. 3170-01-3 JUDGE LARRY G. ELDER
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge

Robert D. Finch, Jr. (Office of the Public
Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.

Lawrence Kevin Blevins (appellant) appeals from his jury

trial convictions for malicious wounding, abduction with intent

to defile and object sexual penetration. On appeal, he contends

the trial court erroneously denied his motion to suppress (a)

the pre-trial and in-court identifications of appellant as the

assailant and (b) the evidence obtained as a result of his

encounter with a police officer near the scene of the crime. He

also argues the trial court erroneously denied his motion for

mistrial, made after the jury had completed its service but

before the trial court imposed sentence, based on the failure of

a juror accurately to respond to voir dire questioning regarding

whether she or any member of her immediate family had "ever been
the victim of a serious crime." We hold the trial court did not

err in denying appellant's motions to suppress or his motion for

a mistrial, and we affirm the challenged convictions.

I.

BACKGROUND

The victim was attacked in a parking garage by an unknown

assailant as she approached her car at about 7:20 p.m. on

January 16, 2001. The assailant overpowered her and pushed her

into her car. She struggled with her attacker and honked her

horn, but the assailant "beat[] [her] continuously," and she was

unable to attract the attention of any passersby. The victim

was bleeding and in pain and asked the attacker to stop beating

her. Based on the assailant's superior strength and the extent

of her injuries, she concluded that she would "just . . . have

to cooperate with hi[m]."

Shortly thereafter, the victim saw a car coming down the

ramp in the parking garage, and she renewed her efforts to sound

the horn and escape. When the approaching car slowed down and

its driver "jammed on the horn," the assailant was distracted,

and the bloodied victim was able to get out of her car and run

to the approaching vehicle. The assailant's attack on the

victim lasted about twenty-five minutes.

Keith Weltens, the driver of the approaching car, stopped

ten to fifteen feet from the victim's car and opened his

passenger door for the victim. Weltens saw the assailant step
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out of the driver's side of the victim's car, stand beneath a

light in the parking garage, and stare directly at him before

the assailant jumped back into the victim's car. Weltens then

drove the victim to a nearby hospital emergency room where he

reported the crime to the police and described the attacker.

Based on a dispatch reporting the location of the attack

and the description of the attacker, Christopher Atkins, a

uniformed patrol officer, apprehended appellant in a nearby park

less than an hour after the attack had ceased. Other officers

photographed appellant and took the photo to the hospital.

Appellant was arrested after both Weltens and the victim

positively identified the person in the photograph as the

victim's assailant.

Appellant was charged with the instant offenses. Prior to

trial, he moved to suppress the fruits of his detention as the

product of an unreasonable seizure. He also moved to suppress

the single-photo pre-trial identifications as unduly suggestive

and any subsequent in-court identifications as tainted. The

court denied both motions.

After a jury trial in which appellant was convicted for the

instant offenses, appellant moved the court for a mistrial. He

alleged a juror failed to answer a question on voir dire

honestly and that this failure prejudiced him by depriving him

of a fair trial. Appellant represented that the basis for the

motion was the failure of a female juror to admit that she
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herself had been the victim of a robbery and that this failure

was brought to counsel's attention only after the jury had

returned its verdict and been discharged.

The trial court conducted a post-trial hearing at which the

juror was questioned about her experience, the reason for her

failure to disclose it during voir dire, and its impact on her

ability to be impartial in appellant's trial. She testified her

nondisclosure was unintentional and that the experience did not

affect her ability to be impartial. The trial court found her

testimony credible and denied the motion for mistrial.

II.

MOTION TO SUPPRESS

On appeal of the denial of a motion to suppress, we

consider the evidence adduced at both the suppression hearing

and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583,

359 S.E.2d 540, 542-43 (1987), and we view it in the light most

favorable to the Commonwealth, Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound

by the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them." McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc). However, we review de novo the trial court's

application of legal standards such as reasonable suspicion to

the particular facts of the case. Ornelas v. United States, 517

U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).
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We also review de novo the question whether a person has been

seized in violation of the Fourth Amendment. Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

A.

SEIZURE

"Fourth Amendment jurisprudence recognizes three categories

of police-citizen [contacts]: (1) consensual encounters, (2)

brief, minimally intrusive investigatory detentions based upon

specific, articulable facts, commonly referred to as Terry

stops, and (3) highly intrusive arrests and searches founded on

probable cause." Wechsler v. Commonwealth, 20 Va. App. 162,

169, 455 S.E.2d 744, 747 (1995) (citation omitted).

Consensual encounters "'need not be predicated on any

suspicion of the person's involvement in wrongdoing,' and remain

consensual 'as long as the citizen voluntarily cooperates with

the police.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414

S.E.2d 869, 870 (1992) (quoting United States v. Wilson, 953

F.2d 116, 121 (4th Cir. 1991)). "As long as the person to whom

questions are put remains free to disregard the questions and

walk away, there has been no intrusion upon that person's

liberty or privacy as would under the Constitution require some

particularized and objective justification." United States v.

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64

L. Ed. 2d 497 (1980).

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 "A seizure occurs when an individual is either physically

restrained or has submitted to a show of authority." McGee, 25

Va. App. at 199, 487 S.E.2d at 262. "Whether a seizure has

occurred . . . depends upon whether, under the totality of the

circumstances, a reasonable person would have believed that he

or she was not free to leave." Id. at 199-200, 487 S.E.2d at

262. Relevant factors under the "totality of the circumstances"

analysis include "the threatening presence of several officers,

the display of a weapon by an officer, some physical touching of

the person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer's request

might be compelled." Mendenhall, 446 U.S. at 554, 100 S. Ct. at

1877.

"[I]f there are articulable facts supporting a reasonable

suspicion that a person has committed a criminal offense, that

person may be stopped in order to identify him, to question him

briefly, or to detain him briefly while attempting to obtain

additional information." Hayes v. Florida, 470 U.S. 811, 816,

105 S. Ct. 1643, 1647, 84 L. Ed. 2d 1705 (1985). In reviewing

whether an officer had reasonable suspicion to justify the

seizure, we must consider the "totality of the circumstances and

view those facts objectively through the eyes of a reasonable

police officer with the knowledge, training, and experience of

the investigating officer." Murphy v. Commonwealth, 9 Va. App.

139, 144, 384 S.E.2d 125, 128 (1989).
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 Here, the evidence supported the trial court's implicit

finding that Officer Christopher Atkins' initial encounter with

appellant in the park was consensual. Atkins approached

appellant on foot "at a walking pace" at a time when Atkins was

the only police officer in the park. Although Atkins was in

uniform, he greeted appellant by saying, in a normal tone of

voice, "How are you doing?" and Atkins described his encounter

with appellant as "very casual contact." In the same normal

tone of voice, Atkins said to appellant, "Do you mind taking off

your stocking cap for me?" Appellant complied with Officer

Atkins' request. The totality of the circumstances support the

trial court's implicit finding that this portion of appellant's

encounter with Officer Atkins was consensual.

Once appellant complied with Officer Atkins' request to

remove his hat, Officer Atkins could see that appellant had a

"real short, buzz type haircut." At that time, Atkins had

confirmed that appellant met the general description he had

received from witness Weltens of the victim's attacker -- a

white male of a certain approximate height and weight, with

"facial hair that appeared to be two to three days growth," "a

buzz type haircut," and "wearing a gray sweatshirt with purple

fringe." The fact that appellant matched the assailant's

general description, coupled with appellant's presence in the

immediate vicinity of the attack only a short time after the

attack had ended, gave Officer Atkins reasonable suspicion to
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detain appellant briefly to confirm or dispel his suspicion that

appellant might, in fact, have been the victim's assailant. See

Thomas v. Commonwealth, 16 Va. App. 851, 856, 434 S.E.2d 319,

322 (1993), aff'd on reh'g en banc, 18 Va. App. 454, 444 S.E.2d

275 (1994).

When Officer Atkins turned on his flashlight, he noticed a

spot of blood on appellant's head. Using his flashlight to make

a closer inspection, he saw smaller red droplets around

appellant's ear and scratch marks running from appellant's neck

toward his chest. These observations served to heighten rather

than dispel Officer Atkins' reasonable suspicion that appellant

might have been the victim's attacker and justified Atkins'

detaining appellant further in order to photograph him and to

have the victim and witness view the photograph to confirm or

dispel Atkins' suspicions. Atkins immediately called for

assistance, obtained a photograph of appellant and had the

photograph transported to the nearby hospital where the victim

and witness promptly identified the person in the photograph as

the victim's attacker. Appellant was detained no more than

twenty-five minutes before the police obtained probable cause

for arrest. On these facts, we affirm the trial court's

conclusion that the totality of the circumstances justified the

detention. Cf. id. at 857, 434 S.E.2d at 323 (holding that

"[t]ransportation of a suspect a short distance for possible

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identification has consistently been found reasonable and

consonant with Fourth Amendment safeguards").

B.

PHOTO IDENTIFICATION

At trial, the Commonwealth bears the burden of proving the

identity of the accused as the perpetrator beyond a reasonable

doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d

611, 613-14 (1968). Although "'a single photograph display is

one of the most suggestive methods of identification and is

always to be viewed with suspicion,'" Wise v. Commonwealth, 6

Va. App. 178, 184, 367 S.E.2d 197, 200 (1988) (quoting Hudson v.

Blackburn, 601 F.2d 785, 788 (5th Cir. 1979)), "[p]re-trial

show-ups are not per se violative of constitutional rights,"

Ford v. Commonwealth, 28 Va. App. 249, 258, 503 S.E.2d 803, 807

(1998). In considering whether such an identification is

inadmissible as the product of an unduly suggestive process, we

look to the totality of the circumstances and consider factors

including:

the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
of the witness' prior description of the
criminal, the level of certainty
demonstrated by the witness at the
confrontation and the length of time between
the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34

L. Ed. 2d 401 (1972).

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 The application of these factors to the identifications of

the witness and victim support the trial court's finding that

the identifications did not result from an unduly suggestive

procedure. Here, the victim had ample opportunity to view her

assailant during the twenty-five minute attack. When the

assailant first approached the victim, his "face was touching

[hers] right in [her] face," and "[they] met eye to eye" before

the assailant forced her into her "two seated" car. Although

the victim and her attacker struggled while in the car as she

attempted to escape from him, the attack ceased when she agreed

to his demands, and the assailant "became very calm." The

victim's car was parked next to a light in the parking garage

and her car "ha[d] [a] T-top[], so [she] was never without light

during [the] attack." This evidence supports a finding that the

victim had ample opportunity to view her assailant at the time

of the attack.

The victim also accurately described her assailant as a

short man with short hair, a goatee around his mouth that was

"peppered gray," and a spot of blood on his head. Although her

description of the clothing he was wearing at the time of the

attack did not appear to be accurate, the victim testified that

her attacker had "a very distinctive facial appearance" and that

her identification of the photograph of appellant as her

assailant "was based on facial appearance" and "body structure,"

"not . . . on the clothing in that photograph." When the police
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asked the victim an hour after the assault if she could identify

her attacker from a photograph, she said that she could. She

then identified the single photograph of appellant as her

attacker, saying one photograph "was all I needed to be shown."

The victim also identified appellant as her attacker at both the

suppression hearing and at trial, testifying she had

"[a]bsolutely no[]" doubt. In light of the victim's level of

certainty, the fact that the victim may have been told prior to

viewing the photograph that witness Keith Weltens had already

identified the photograph as depicting the perpetrator does not

require a different result.

Weltens also had ample opportunity to view the victim's

attacker, although his opportunity was of shorter duration than

the victim's. Weltens testified that the parking garage was

"bright" and "well lit" and that he had a "real good"

"unobstructed view" of the assailant from a distance of ten to

fifteen feet for four to five seconds as Weltens sat in his car

and the assailant stood beside the victim's car. Weltens then

got out of his car and viewed the assailant for an additional

three to four seconds, during which the assailant was "just

standing there" "staring directly at [Weltens]."

Weltens accurately described appellant's height, clothing

and facial appearance, although he underestimated appellant's

weight. Weltens said that when he viewed the single photograph

of appellant about an hour later, the photograph was "the exact
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match" of the description he gave and that the person in the

photograph was the victim's attacker. Weltens, like the victim,

testified he was "positive" that appellant was the victim's

assailant.

In light of the Biggers factors, we hold the evidence

supports the trial court's conclusion that the identifications

were not unduly suggestive. Our holding in Wise, cited by

appellant, is factually distinguishable and, thus, does not

require a different result. See Wise, 6 Va. App. at 180,

185-86, 367 S.E.2d at 198, 201 (holding identifications were

unduly suggestive where bank robber wore disguise and witnesses

had been "unable to describe the robber's facial features" but

claimed to have recognized accused when, almost five months

after the robbery at issue, they were shown a single still

photograph from a videotape of another bank robbery). Thus, we

affirm the trial court's admission of the pre-trial

identifications. Because the admission of the pre-trial

identifications was not error, no basis exists for excluding the

in-court identifications.

III.

MOTION FOR MISTRIAL

Appellant contends he is entitled to a new trial based on a

juror's failure to reveal on voir dire the fact that she had

previously been robbed at gunpoint while entering her parked

car. Because the juror did not disclose this fact in a timely
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fashion, appellant argues, he was deprived of the opportunity to

challenge her for cause or, at the very least, to use a

peremptory challenge to remove her from the jury. We hold the

trial court's denial of the mistrial motion was not error

because the record supported the trial court's findings that the

juror did not fail to answer "honestly" the questions on voir

dire and that the juror was not biased.

In order for a litigant to be entitled to a mistrial based

on jury misconduct on 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.
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."

Taylor v. Commonwealth, 25 Va. App. 12, 18, 486 S.E.2d 108, 111

(1997) (quoting McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 556, 104 S. Ct. 845, 850, 78 L. Ed. 2d 663 (1984)),

aff'd, 256 Va. 214, 505 S.E.2d 378 (1998).

Appellant contends the juror "failed to answer honestly"

the question regarding whether she had been "the victim of a

serious offense" because she did not bring to the court's

attention the fact that she previously had been robbed at

gunpoint. Appellant contends the juror's incorrect answer,

standing alone, established dishonesty. We disagree. The

United States Supreme Court noted in McDonough that "[t]o
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invalidate the result of a [lengthy] trial because of a juror's

mistaken, though honest, response to a question, is to insist on

something closer to perfection than our judicial system can be

expected to give." 464 U.S. at 555, 104 S. Ct. at 849-50

(emphases added) (citing Fed. R. Civ. P. 61, governing new

trials, and 28 U.S.C. § 2111, "the harmless-error statute . . .

[that] applies directly to appellate courts"). Thus, the Court

indicated that the honesty of the juror's response is to be

gauged by whether the juror gave an incorrect answer

intentionally or accidentally. Only an intentionally incorrect

response may provide a basis for the granting of a mistrial.

See id. As the Supreme Court further noted,

A trial represents an important investment
of private and social resources, and it ill
serves the important end of finality to wipe
the slate clean simply to recreate the
peremptory challenge process because counsel
lacked an item of information which
objectively he should have obtained from a
juror on voir dire examination.

Id. at 555, 104 S. Ct. at 850.

Here, the trial court conducted a post-trial hearing on

appellant's mistrial motion. Smith v. Phillips, 455 U.S. 209,

215, 102 S. Ct. 940, 945, 71 L. Ed. 2d 78 (1982) (recognizing

"that the remedy for allegations of juror partiality is a

hearing in which the defendant has the opportunity to prove

actual bias"). Upon appellate review, we must give deference to

the trial court's decision regarding whether a juror is

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impartial because the trial court "'sees and hears the juror.'"

Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391

(1990) (quoting Wainwright v. Witt, 469 U.S. 412, 426, 105

S. Ct. 844, 853, 83 L. Ed. 2d 841 (1985)). Accordingly, we will

disturb the trial court's decision regarding juror impartiality

"only upon a showing of manifest error." Weeks v. Commonwealth,

248 Va. 460, 475, 450 S.E.2d 379, 389 (1994).

In examination by the court at the hearing on appellant's

post-trial motion, the juror testified repeatedly that she did

not deliberately withhold the information that she previously

had been robbed. She testified that she either "didn't hear"

the question or "didn't understand" and that her failure to

respond correctly "was not a deliberate act."

Further, the transcript of the original voir dire indicates

that the court's question to the jury, "[H]ave you or any

members of your immediate family ever been the victim of a

serious offense?" immediately followed a portion of the voir

dire in which the trial judge had dismissed a different juror

for cause, called a replacement juror, and asked only the

replacement juror a series of questions to "ca[tch]" the

replacement juror "up with the rest of the panel." The

transcript reflects no pause in the court's questioning as it

turned its attention from the replacement juror back to its

questioning of the entire panel, a fact lending credence to the

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challenged juror's testimony that she simply did not hear the

question.

Finally, the challenged juror willingly admitted her

robbery and resulting fear of parking garages to a bailiff on at

least one occasion, tending to support the fact that her failure

to reveal that information on voir dire in appellant's trial was

unintentional. These circumstances, coupled with the juror's

repeated statements that her failure to respond correctly to the

trial court's question was unintentional, support the trial

court's finding that she did not fail to answer a material

question "honestly."

The evidence also supported the trial court's finding that

the juror's personal experience as the victim of a robbery

thirteen to fifteen years earlier did not affect her ability to

serve impartially as a juror in appellant's trial for the

instant offenses. The juror said that, although being robbed at

gunpoint affected her emotionally, causing her to "relive" the

robbery from time to time, she did so only when she was "by

[her]self] and somebody [was] behind [her]." She insisted that

"[her] verdict was strictly on the evidence, nothing about [her]

personal life," and that her prior bad experience had

"[a]bsolutely" nothing to do with the outcome of appellant's

trial. The trial court accepted her testimony, finding she had

"an impartial mind, an understanding of the presumption of

innocence, and [an] indifference to the outcome."
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 The holdings in Cantrell v. Crews, 259 Va. 47, 51, 523

S.E.2d 502, 504 (2000), Medici v. Commonwealth, 260 Va. 223,

226-27, 532 S.E.2d 28, 30-31 (2000), and Barrett v.

Commonwealth, 262 Va. 823, 826-27, 553 S.E.2d 731, 733 (2001),

indicating that "public confidence in the integrity of the [jury

selection] process" is an important factor in determining

whether a juror should be struck for cause do not require a

different result. Those cases involved challenges that occurred

before the jury was sworn, which did not give rise to the same

concerns for balancing fairness with finality embodied in

McDonough, 464 U.S. at 553-56, 104 S. Ct. at 848-50, and

recognized in Taylor, 25 Va. App. at 18 n.3, 486 S.E.2d at 111

n.3. Also, both Cantrell and Barrett involved a relationship

between the challenged juror and a witness or other participant

in the trial that the Court presumed would result in bias as a

matter of law. Cantrell, 259 Va. at 51, 523 S.E.2d at 504

(noting juror was "a client of the law firm representing one of

the parties to the litigation as a result of a similar

occurrence"); Barrett, 262 Va. at 826-27, 553 S.E.2d at 733

(noting juror was brother of police officer witness). No

evidence of such a relationship existed in this case.

Because the evidence supported the trial court's findings

that the juror's failure to answer the subject voir dire

question was accidental rather than intentional and that she

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stood impartial to the cause, its denial of appellant's motion

for mistrial was not error.

Finally, even assuming "misconduct" occurs when a juror

unintentionally gives an incorrect response on voir dire,

"'juror misconduct does not automatically entitle either

litigant to a mistrial.' The trial court must also find a

probability of prejudice, with the 'burden of establishing that

probability . . . upon the party moving for a mistrial.'" Green

v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891

(1998) (quoting Robertson v. Metropolitan Washington Airport

Auth., 249 Va. 72, 76, 452 S.E.2d 845, 847 (1995)). Based on

the trial court's finding that the juror was not biased,

appellant has failed to prove he was entitled to a mistrial

because he failed to show prejudice. 1

IV.

For these reasons, we hold the trial court did not err in

denying appellant's motions to suppress or his motion for a

mistrial, and we affirm the challenged convictions.

Affirmed.

1
Appellant alludes on brief to his constitutional right to
the effective assistance of counsel. To the extent appellant
purports to raise a claim of ineffective assistance of counsel,
a claim which appears somehow to be based on the juror's
untruthfulness, we note that we have no jurisdiction over such
claims. See, e.g., Browning v. Commonwealth, 19 Va. App. 295,
297 n.2, 452 S.E.2d 360, 362 n.2 (1994).
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