COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee ∗ and Felton
Argued at Richmond, Virginia
EUGENE HARRY PROCTOR, III
OPINION BY
v. Record No. 2524-01-2 JUDGE G. STEVEN AGEE
APRIL 1, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Horace A. Revercomb, III, Judge
Donald M. Haddock, Jr. (George W. Townsend,
III; Redmon, Peyton & Braswell, L.L.P.;
George W. Townsend, III, P.C., on briefs),
for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A Westmoreland County Circuit Court jury found Eugene H.
(a.k.a. "Trey") Proctor, III (Proctor) guilty of murder in the
first degree, discharging a firearm in an occupied building and
use of a firearm while committing murder. Proctor was sentenced
to life imprisonment, ten years imprisonment, and three years
imprisonment, respectively. On appeal Proctor alleges the trial
court erred by: (1) permitting the Commonwealth to treat its own
witness as hostile and impeach him through the use of a prior
∗
Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
written statement, (2) admitting improper testimony from the
victim's mother, (3) not finding as a matter of law that the
evidence was insufficient to support his conviction, (4)
allowing the Commonwealth to proceed with a charge under Code
§ 18.2-279 in addition to the charge of murder under Code
§ 18.2-32, and (5) denying his motion for a change of venue.
For the reasons that follow, we affirm the judgment of the trial
court.
I. BACKGROUND
"Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom." Birdsong v.
Commonwealth, 37 Va. App. 603, 605, 560 S.E.2d 468, 469 (2002)
(citing Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d
677, 678 (1997)).
The facts are generally undisputed. On April 23, 2000,
police officers responded to the residence of Proctor's parents
in Colonial Beach where they found Joseph Simmons ("Simmons")
standing by the body of the victim, Crystal Proctor ("Crystal"),
Proctor's wife. Simmons was present when Proctor shot Crystal
in the neck, at close range, with a single-shot twelve-gauge
shotgun.
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Earlier in the day Proctor, Crystal, and several of their
friends had been drinking alcohol and smoking marijuana. In the
early evening Proctor, Crystal, Carl Nave, Michael Bowie and
Simmons all went over to Proctor's house. Proctor, Crystal,
Nave and Bowie then left the house and attempted to purchase
some marijuana from Jeffrey Hunter ("Hunter") who took their
money but failed to deliver any marijuana. Proctor, upset by
this occurrence, returned to his house to retrieve a gun with
which to confront Hunter. Proctor went into the house while
Crystal, Nave and Bowie remained in the car. After hearing
yelling from inside the home, Crystal, Nave and Bowie entered
the house and saw Proctor and his mother struggling over control
of a shotgun. Proctor was yelling and screaming about shooting
someone, and the others tried to calm him down. After gaining
control of the shotgun, Proctor went outside and then re-entered
the house without the gun. Proctor (who did not have a driver's
license) demanded that Crystal drive him to find Hunter but she
refused. Proctor threatened to "blow her head off" if she did
not drive him as he demanded.
Nave grabbed Proctor in an effort to calm him down.
However, upon being released, Proctor wrestled with his mother
over a case containing shells for the shotgun and was able to
grab several shells. He loaded the shotgun and threatened to
shoot everyone if they touched him again. Everyone then left
the house except Simmons, Crystal and Proctor. Simmons
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testified that Proctor then cocked the shotgun and pointed it at
Crystal who was crouched down before him weeping. Proctor kept
saying that he would shoot her if she did not give him a ride.
Proctor began counting to ten and reiterated that he would shoot
Crystal if she did not drive him to find Hunter. When Proctor
finished counting to ten, Crystal arose and began to walk out of
the room with the shotgun still pointed at her head. Proctor
then shot her from about five feet away. Proctor yelled to call
911 and ran out of the house with the gun. He surrendered to
police three days later.
II. STANDARD OF REVIEW
The admissibility of evidence is within the broad
discretion of the trial court, and this Court reviews a trial
court's evidentiary rulings for abuse of discretion. Smallwood
v. Commonwealth, 36 Va. App. 483, 487, 553 S.E.2d 140, 142
(2001) (citing Quinones v. Commonwealth, 35 Va. App. 634, 639,
547 S.E.2d 524, 527 (2001)). "The rule is well established in
Virginia that 'great latitude [will be given] to the discretion
of the trial [judge] as to the order in which witnesses may be
called and the manner of their examination.'" Whitehead v.
Commonwealth, 31 Va. App. 311, 318, 522 S.E.2d 904, 907 (2000)
(citing Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5
(1947)).
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III. ANALYSIS
A. Direct Examination of Carl Nave
During the direct examination of Carl Nave, the
Commonwealth had him review a written statement he had given to
the police before trial. The Commonwealth then sought to elicit
testimony from Nave in conformity with the statement. Proctor
objected to this testimony, based on the written statement, as
inadmissible hearsay.
The trial court stated its assumption that the statement
was being used to refresh Nave's memory and was therefore
permissible. The Commonwealth, however, denied the statement
was to refresh Nave's recollection and represented that the
statement was "not in conflict" with Nave's testimony to that
point in the trial. The Commonwealth's Attorney then told the
trial court she intended "to put it [the prior written
statement] in evidence." The court sustained defense counsel's
hearsay objection to admission of the statement.
The Commonwealth then requested a bench conference where
the admissibility of the written statement was argued. The
Commonwealth again admitted that Nave's testimony was "not in
conflict with what he said before but it is not as much as he
said before." Proctor objected to any use of the statement
because Nave "made no prior inconsistent statement and his
recollection doesn't need to be refreshed. He has not once said
I don't remember." At the end of this discussion, the trial
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court permitted the Commonwealth to approach Nave "with that
document if he's not including all his prior statements."
Proctor's objection was overruled. Shortly thereafter, the
trial court also permitted the Commonwealth to treat Nave as a
hostile witness, to which Proctor objected.
The Supreme Court of Virginia has stated that:
As a general rule, a prior consistent
statement of a witness is inadmissible
hearsay. Graham v. Danko, 204 Va. 135, 138,
129 S.E.2d 825, 827 (1963); Crowson v. Swan,
164 Va. 82, 94, 178 S.E. 898, 903 (1935);
Scott v. Moon, 143 Va. 425, 434, 130 S.E.
241, 243 (1925). To allow such a statement
to corroborate and buttress a witness's
testimony would be an unsafe practice, one
which not only would be subject to all the
objections that exist against the admission
of hearsay in general but also would tend to
foster fraud and the fabrication of
testimony. Scott, 143 Va. at 434, 130 S.E.
at 243. Indeed, it has been said that "'the
repetition of a story does not render it any
more trustworthy.'" Id.
Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992)
(citations omitted).
The Commonwealth contends on appeal that Nave's written
statement to the police was properly used to refresh his
recollection on the witness stand. However, that argument
contradicts the Commonwealth's own statements at trial. 1
1
At trial the following colloquy occurred between the
Commonwealth and the court:
THE COURT: I'm assuming that she's
presenting this to refresh his memory in
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The Commonwealth clearly sought to buttress and augment
Nave's oral testimony on the witness stand with his previously
recorded consistent written statement. This is inadmissible
hearsay, unless it fits within one of the narrow exceptions to
the hearsay rule, whether Nave is a hostile witness or not. See
Faison, 243 Va. at 404-05, 417 S.E.2d at 305 (listing the
exceptions to the general rule that such consistent statements
are inadmissible). However, the hearsay exception for past
recollection recorded does not apply here as the record does not
reflect Nave forgot anything for which his memory was to be
order to proceed with questioning. Is that
what –-
MRS. GARLAND: No, Your Honor. I intend to
put it in evidence.
THE COURT: In lieu of his actual testimony?
MRS. GARLAND: In addition. It's not in
conflict.
* * * * * * *
THE COURT: You've indicated to the Court
there is some inconsistency in that
statement, and –
MRS. GARLAND: What he has said is not in
conflict with what he said before, but it is
not as much as he said before.
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refreshed or supplemented by documentary evidence. 2 Charles E.
Friend, The Law of Evidence in Virginia § 3-7 (5th ed. 1999). 3
Assuming, therefore, that the trial court erred by
permitting the Commonwealth to examine Nave by use of the prior
consistent statement, only error that is prejudicial to Proctor
warrants reversal of the trial court's verdict. The
Commonwealth asserts that if admitting the testimony derived by
use of the prior statement was improper, any error in doing so
was nonetheless harmless. We agree.
When a trial court errs in allowing the
presentation of evidence to the jury, this
Court must decide whether that error was
harmless. As this issue involves
non-constitutional error, if appellant "had
a fair trial on the merits and substantial
justice has been reached," his convictions
will not be reversed. Code § 8.01-678. The
Commonwealth has the burden "to prove that
2
Nave did indicate confusion at one point in response to a
question from the Commonwealth's Attorney; however, his
responses to the subsequent questions were substantially the
same as his prior testimony.
3
Proctor characterizes the use of Nave's prior written
statement as (1) impeachment of the Commonwealth's own witness,
(2) improper hearsay by use of a prior consistent statement, and
(3) improper hearsay because the past recollection recorded
exception does not apply. We address only the last two items as
the record does not reflect impeachment of Nave's credibility
during his questioning from the written statement. Further,
while Proctor objected to Nave being declared a hostile witness,
he made no argument to the trial court as to why its ruling was
erroneous. The trial court's determination of whether a witness
is properly declared hostile is reviewed for an abuse of
discretion in making that designation. See Whitehead, 31
Va. App. at 318, 522 S.E.2d at 907 (stating that the manner in
which witnesses are examined is left to the discretion of the
trial court). Proctor has identified no abuse of discretion,
and we find none.
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the error was non-prejudicial." Beverly v.
Commonwealth, 12 Va. App. 160, 163-64, 403
S.E.2d 175, 177 (1991).
Smallwood, 36 Va. App. at 490, 553 S.E.2d at 143. "An error
does not affect a verdict if a reviewing court can conclude,
without usurping the jury's fact finding function, that, had the
error not occurred, the verdict would have been the same."
Lavinder v. Commonwealth, 12 Va. App. 1003, 1006, 407 S.E.2d
910, 911 (1991) (en banc). We analyze each case individually to
determine whether an error affected the verdict. Id. at 1009,
407 S.E.2d at 913.
Nave's testimony based on the prior written statement
centered on Proctor's actions before the shooting. The
Commonwealth used the statement to elicit Nave's testimony about
Proctor's desire to shoot Hunter for taking his money and
failing to deliver the marijuana, his struggle with his mother
over the shotgun shells, his threats to shoot Crystal if she did
not give him a ride, and his pointing of the gun at Crystal.
An examination of the record reveals that Nave's testimony
elicited from the statement duplicated, as defense counsel
repeatedly noted, that to which he had already testified. Nave
had already testified that Proctor "was going to go get his gun"
and go back for Hunter. He had already testified that Proctor
"and his mother were struggling over [the case containing the
shells]." Likewise, he had previously stated that Proctor
threatened to "blow [Crystal's] head off" unless she gave him a
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ride. Nave did testify, after looking at the statement, that
Proctor pointed the gun at Crystal, but he had previously
testified Proctor was waving the gun around while she was in the
room. In short, Nave didn't testify, by use of the written
statement, to anything materially different from his prior
uncontested testimony before the jury.
The testimony of Joseph Simmons, who (unlike Nave) was in
the room when Proctor shot Crystal, offered much of the same
testimony. Although Simmons did not go with Proctor and the
others to buy marijuana, he testified that when the group
returned to the house Proctor was yelling and screaming and
"talking about how he was going to shoot somebody." He
testified that Proctor "and his mom started wrestling with the
bullet case." Simmons also stated that he saw Proctor load,
cock and point the gun towards Crystal while threatening to
shoot her if she didn't give him a ride. Finally, he testified
that Proctor gave Crystal a count to ten while holding the
shotgun towards her face.
As the jury heard nothing new from Nave by use of the
written statement, there was no prejudice to Proctor by reason
of the trial court's error in permitting the Commonwealth to use
the prior consistent statement. Further, given the
substantially similar evidence from other witnesses, it is
apparent that the jury's verdict would have been the same had
the use of the prior written statement not occurred.
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Accordingly, we find no reversible error in the trial court
permitting the Commonwealth to examine Nave by use of the prior
written statement.
B. Testimony of Tracy McGuire
Proctor alleges the trial court erred by admitting certain
hearsay testimony from Tracy McGuire, the victim's mother. We
disagree.
The record discloses that the Commonwealth and the court
repeatedly instructed the witness not to testify to hearsay.
Nonetheless, there were occasions when Proctor's counsel
objected to McGuire's testimony as improper hearsay. The trial
court sustained all of Proctor's hearsay objections. Proctor
also requested the trial court give the jury a cautionary
instruction which was promptly given, and McGuire was dismissed
as a witness.
The jury is presumed to follow the court's instructions.
Burley v. Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265,
269 (1999) ("Juries are presumed to follow prompt cautionary
instructions regarding the limitations placed upon evidence."
(citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d
644, 657 (1983))). Proctor cites no reason upon which to base a
finding that the jury did not do as the court instructed.
Further, Proctor made no motion for a mistrial and identifies no
request for relief that was not promptly granted. Accordingly,
we find no error by the trial court.
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C. Sufficiency of the Evidence
Our standard of review when evaluating the sufficiency of
the evidence on appeal is guided by familiar principles:
"When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom. The
jury's verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it."
Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260,
261 (1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172,
176, 366 S.E.2d 719, 721 (1988)). "If there is evidence to
support the conviction, the reviewing court is not permitted to
substitute its judgment, even if its view of the evidence might
differ from the conclusions reached by the finder of fact at the
trial." Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d
312, 314 (1998).
Proctor argues that the evidence was insufficient to
support his conviction. He essentially argues that he was too
intoxicated to form the requisite intent for first-degree murder
as a matter of law. "Generally, voluntary intoxication is not
an excuse for any crime." Wright v. Commonwealth, 234 Va. 627,
629, 363 S.E.2d 711, 712 (1988). Virginia does recognize one
exception to this rule: voluntary intoxication can negate the
premeditation required for first degree-murder. Id. (citing,
inter alia, Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292
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S.E.2d 798, 807 (1982)). As Proctor points out in his brief,
the jury was properly instructed on this point.
The jury heard testimony from several witnesses regarding
the events leading up to the shooting. It heard testimony from
Simmons, an eyewitness to the shooting, that Proctor repeatedly
threatened to shoot Crystal if she did not give him a ride. It
heard testimony that Proctor retrieved the gun, struggled with
his mother over the shells and loaded the gun. Simmons also
testified that Proctor pointed the gun at Crystal's head and
counted to ten. Whether Proctor's voluntary intoxication rose
to such a level that it negated his ability to premeditate the
crime was a factual determination for the jury. The jury was
entitled to consider the evidence and conclude that his
intoxication did not rise to that level. As a matter of law
this was a proper question for the jury, and its decision in
this regard was not plainly wrong or without evidence to support
it.
D. Conviction under Code § 18.2-279
It is unlawful for any person to "maliciously discharge a
firearm within any building when occupied by one or more persons
in such a manner as to endanger the life or lives of such person
or persons." Code § 18.2-279. The statute further states that
"[i]n the event of the death of any person, resulting from such
malicious shooting . . . the person so offending shall be guilty
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of murder, the degree to be determined by the jury or the court
trying the case without a jury."
At the close of the Commonwealth's case, Proctor made a
motion to strike, arguing the Commonwealth could not
simultaneously prosecute charges under Code § 18.2-279 and
§ 18.2-32. Proctor asserted that the Commonwealth must elect
which theory of murder (and consequently which statute) it
wished to present to the jury. The trial court denied the
motion.
Proctor raises two issues on appeal in support of his
argument. First, he contends that Code § 19.2-294 mandated the
Commonwealth elect which charge it would present to the jury.
Code § 19.2-294 provides that "if the same act be a violation of
two or more statutes . . . conviction under one of such statutes
or ordinances shall be a bar to a prosecution or proceeding
under the other or others." However, this argument was not made
to the trial court and, thus, we will not consider it on appeal.
Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 489 (1998) ("The Court of Appeals will not consider
an argument on appeal which was not presented to the trial
court.").
Secondly, Proctor argues that where a death occurs during
the malicious discharge of a firearm in an occupied dwelling,
Code § 18.2-279 only allows a murder conviction – not a
conviction for malicious discharge and murder.
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He contends that the legislature's decision not to use the
language "shall also be" instead of "shall be guilty of murder,"
in Code § 18.2-279 evidences an intent that a malicious
discharge resulting in death is removed from Code § 18.2-279 by
operation of law and thrust into Code § 18.2-32 —— the murder
statute. As such, he argues, the trial court erred in
submitting both charges to the jury.
"When the language of a statute is plain and unambiguous,
we are bound by the plain meaning of that language. We must
determine the intent of the General Assembly from the words
contained in the statute, unless a literal construction of the
statute would yield an absurd result." Shelor Motor Co. v.
Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) (citations
omitted). Indeed, when determining the boundaries of such a
statute, "[t]he plain, obvious, and rational meaning of a
statute is always preferred to any curious, narrow or strained
construction . . . ." Branch v. Commonwealth, 14 Va. App. 836,
839, 419 S.E.2d 422, 424 (1992). "Although penal laws are to be
construed strictly [against the Commonwealth], they 'ought not
to be construed so strictly as to defeat the obvious intention
of the legislature.'" Willis v. Commonwealth, 10 Va. App. 430,
441, 393 S.E.2d 405, 411 (1990) (quoting Huddleston v. United
States, 415 U.S. 814, 831 (1974)).
Code § 18.2-279 makes clear that to be guilty of
maliciously discharging a firearm, contemporaneous physical
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occupation of the building is an essential element of the
offense. See Johnson v. Commonwealth, 18 Va. App. 441, 447-48,
444 S.E.2d 559, 563 (1994). When viewed in the light most
favorable to the Commonwealth, the evidence at trial showed that
Proctor fired a twelve-gauge shotgun in the living room of his
home, killing his wife, Crystal, who was standing about five
feet away. At the time Proctor discharged the weapon, Joseph
Simmons was also in the house, indeed, "maybe only three or four
feet" from the victim. Simmons testified that when Proctor
fired the gun, he was knocked back onto the couch and could not
hear. Proctor clearly endangered Simmons by discharge of the
firearm within the building as the Commonwealth noted at trial. 4
To adopt Proctor's interpretation of the statute would allow him
to evade its punitive consequences for endangering the other
occupants of the house by the contemporaneous murder of one of
them. Such a reading would be a narrow and strained
construction that would defeat the obvious intention of the
legislature. We will not adopt such a reading and, therefore,
find no error in the conviction of Proctor under both Code
§ 18.2-279 and Code § 18.2-32 under the facts of this case.
4
The Commonwealth argued "there were other people in the
house . . . it was occupied by other people, or at least one
other person when this firearm was discharged."
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E. Change of Venue
A trial court's decision whether to grant a motion for
change of venue is reviewed for an abuse of discretion.
Cressell v. Commonwealth, 32 Va. App. 744, 753, 531 S.E.2d 1, 5
(2000) (citing Kasi v. Commonwealth, 256 Va. 407, 420, 508
S.E.2d 57, 64 (1998)).
Arguing that the case had garnered a prejudicial amount of
pretrial publicity, Proctor asked the trial court for a change
of venue. In support of his motion Proctor presented numerous
newspaper articles about the case, including the Commonwealth
Attorney's regular newspaper column. Proctor submitted
twenty-two affidavits from Westmoreland County citizens
expressing their belief that it would be difficult for him to
receive a fair trial in the county. The trial court denied the
motion.
The Supreme Court of Virginia recently addressed the
relevant factors for assessing the denial of a motion for a
change of venue in Thomas v. Commonwealth, 263 Va. 216, 559
S.E.2d 652 (2002).
[T]here is a presumption that a defendant
will receive a fair trial in the
jurisdiction where the offense occurred and
the defendant bears the burden of overcoming
"this presumption by demonstrating that the
feeling of prejudice on the part of the
citizenry is widespread and is such that
would 'be reasonably certain to prevent a
fair trial.'" Mueller v. Commonwealth, 244
Va. 386, 398, 422 S.E.2d 380, 388 (1992)).
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Thomas, 263 Va. at 230, 559 S.E.2d at 659-60. The presumption
is not overcome simply because there is widespread knowledge of
the case as "[j]urors need not be ignorant of the crime." Id.
(citing Irvin v. Dowd, 366 U.S. 717, 722 (1961); Buchanan v.
Commonwealth, 238 Va. 389, 406, 384 S.E.2d 757, 767 (1989)).
Along with the sheer volume of publicity, other factors are
relevant in evaluating whether the defendant can obtain a fair
trial. Id. Among these factors are the accuracy of the
publicity, whether the publicity is temperate and
non-inflammatory, and the timing of the publicity. Id. A
"critical element" in determining whether widespread pretrial
publicity has so prejudiced the community that the defendant
cannot get a fair trial is the ease in seating an impartial
jury. Id. at 231, 559 S.E.2d at 660 (citing Roach v.
Commonwealth, 251 Va. 324, 242, 468 S.E.2d 98, 109 (1996)). As
the Thomas Court stated:
[I]t is the ease of seating the jury that is
the relevant factor, not the ultimate result
of that process. Never has this Court held
the impartiality of the seated jury to be a
factor in considering whether a motion for a
change of venue should be granted, much less
found it dispositive.
Id. at 232, 559 S.E.2d at 661 (citations omitted). The "more
difficult it is to seat a jury, the more likely it is that the
public will believe the judicial process to be tainted by
prejudice." Id. at 233, 559 S.E.2d at 661.
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Application of these factors to the case at bar
demonstrates the trial court did not err in denying Proctor's
motion. Proctor admits he did not contest the accuracy of the
media reports, but he did contend some of the articles written
by the Commonwealth's Attorney were intemperate and
inflammatory. It appears the trial court did not make specific
findings in this regard, though it noted that the Commonwealth's
Attorney came "very close" to improperly expressing her opinion
on factual matters in some instances.
Nonetheless, the trial court specifically noted the
"relative ease" with which it empanelled a jury. It took five
days for the trial court in Thomas to voir dire over 100 persons
with seventy-three struck for cause. Thomas, 263 Va. at 229,
559 S.E.2d at 659. By contrast, of twenty-seven jurors for voir
dire in the case at bar, only three were struck from the jury
pool for cause related to pretrial publicity.
Given the trial court's specific finding of "the relative
ease" with which a jury was seated in this case, the trial court
clearly considered this "critical element." We therefore find
the trial court did not abuse its discretion in denying
Proctor's motion for a change of venue.
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IV. CONCLUSION
For the reasons set forth above, we find no reversible
error in the decisions of the trial court and affirm the
defendant's convictions.
Affirmed.
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