COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
TEREMUN ANTHONY SALMON
OPINION BY
v. Record No. 2912-98-4 JUDGE ROSEMARIE ANNUNZIATA
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Benjamin H. Woodbridge, Jr. (Brinton T.
Warren, on briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee.
Teremun Anthony Salmon was convicted of petit larceny.
Salmon claims that the trial court erred by overruling his
pretrial motion objecting to the prospective jurors in his
venire on the ground that the Commonwealth had obtained
information derived from criminal background checks on each
potential juror. We disagree, and affirm his conviction.
BACKGROUND
Salmon was indicted for grand larceny on July 20, 1998.
Prior to trial, Salmon filed a written motion objecting to the
pool of prospective jurors because he learned that the
Commonwealth's Attorney was conducting criminal background
checks on those persons. The trial court granted a continuance,
and Salmon filed a second written motion objecting to the jury
pool. The Commonwealth responded with a motion to deny Salmon's
motion, and a hearing was held on the motions on October 22,
1998. The court entered an order denying Salmon's motions, and
the case proceeded to trial on November 18, 1998. Prior to voir
dire, Salmon again raised his objection to the pool of jurors on
the ground that the Commonwealth improperly conducted criminal
background checks on the potential jurors. The court again
overruled the motion, and the parties proceeded with voir dire.
None of the questions asked of the potential jurors by either
party concerned criminal background, and both parties used their
peremptory strikes. The parties then presented evidence and
argument.
The jury returned a verdict finding Salmon guilty of the
lesser-included offense of petit larceny. Salmon moved to have
the verdict set aside on the ground it was unsupported by the
evidence, and, following a hearing on December 4, 1998, the
court overruled the motion and entered an order on December 16,
1998. Salmon noted his appeal that same day. For the following
reasons, we find that the Commonwealth is authorized by statute
to obtain and review criminal background information on
potential jurors, and we affirm Salmon's conviction.
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PROCEDURAL ISSUES
Necessity for Transcript of the October 22, 1998 Hearing
The Commonwealth contends that Salmon failed to timely file
a transcript of the motion hearing on October 22, 1998, and the
record, therefore, is insufficient for this Court to decide the
question presented. The transcript of the October 22, 1998
motion hearing is not indispensable to the adjudication of this
appeal, however. We have stated previously that "[i]f the
record on appeal is sufficient in the absence of [a] transcript
to determine the merits of the appellant's allegations, we are
free to proceed to hear the case." Turner v. Commonwealth, 2
Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). Because the issue
before us is purely a question of law, viz. whether the
Commonwealth is authorized to review criminal background
information on potential jurors, the hearing transcript is not
indispensable to the resolution of the issue on appeal.
Salmon's claim is, therefore, not barred by the lack of the
hearing transcript.
Objection to the Seating of the Jury
The Commonwealth advances a second procedural argument,
contending that Salmon's claim is procedurally barred because he
failed to object to the seating of the jury and, thus, waived
any previous objections he had made concerning the venire. The
Commonwealth cites in support of this claim Spencer v.
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Commonwealth, 238 Va. 295, 306-07, 284 S.E.2d 785, 793 (1989)
(holding that party waives voir dire objection where he objects
to rulings on prospective juror made during voir dire but fails
to object to the seating of that juror), cert. denied, 493 U.S.
1093 (1990).
This contention is also without merit. Salmon objected to
the prosecution's review of potential jurors' criminal
background information in a written motion prior to trial. Code
§ 8.01-352 1 provides, inter alia, that prior to the swearing in
of the jury a party may object to any "irregularity . . . in the
. . . impaneling of jurors . . . ." "A jury is 'impaneled'
. . . when it is ready to try the case." Bowen v. Commonwealth,
132 Va. 598, 604, 111 S.E. 131, 133 (1922). See Black's Law
Dictionary 752 (6th ed. 1990) ("impanel" defined as "[a]ll the
steps of ascertaining who shall be the proper jurors to sit in
the trial of a particular case up to the final formation").
1
The statute provides, in pertinent part:
A. Prior to the jury being sworn, the
following objections may be made without
leave of court: (i) an objection
specifically pointing out [an] irregularity
. . . in the drawing, summoning, returning
or impaneling of jurors . . . . B. Unless
objection to such irregularity . . . is made
. . . then such irregularity . . . shall not
be cause for summoning a new panel . . . or
for setting aside a verdict or granting a
new trial.
Code § 8.01-352.
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Salmon thus properly objected to the impaneling of the jury by
his pretrial motion. Having renewed his objection prior to voir
dire, Salmon complied with the requirements of Code § 8.01-352
and with Rule 5A:18 of the Rules of the Supreme Court, which
states that "[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless objection was stated
together with the grounds therefor at the time of the ruling
. . . ." See Mu'Min v. Commonwealth, 239 Va. 433, 445 n.6, 389
S.E.2d 886, 894 n.6 (1990); Spencer, 238 Va. at 306-07, 284
S.E.2d at 793. Salmon is, therefore, not barred by any failure
to make timely objection to the panel. We now turn to the
merits of his appeal.
AUTHORIZATION OF THE COMMONWEALTH'S ATTORNEY TO REVIEW CRIMINAL
BACKGROUND INFORMATION OF POTENTIAL JURORS
The question presented is one of first impression in the
Commonwealth. Upon review, we find that the applicable statutes
authorize the Commonwealth's Attorney's use of the background
information in question and that this practice is not unfair to
the defendant.
In most of our sister states in which the prosecution's
review of potential jurors' criminal background information has
been challenged, the practice has been upheld. Challenges to
the practice have been based on state statutes governing the
dissemination of criminal record information, see Tagala v.
State, 812 P.2d 604 (Alaska 1991) (Alaska statute restricting
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usage of criminal background information held to authorize
prosecutor's use of such information in reviewing potential
jurors prior to voir dire); cf. State v. Bessenecker, 404 N.W.2d
134 (Iowa 1987) (statute governing dissemination of criminal
background information held not to authorize prosecutor to
review venire's criminal background information), on Sixth
Amendment grounds, see United States v. Falange, 426 F.2d 930
(2d Cir. 1970) (prosecution's use of jurors' criminal background
information in exercising challenges in voir dire did not
require dismissal of jury where it did not appear that jury was
prejudiced against defendants); State v. Goodale, 740 A.2d 1026
(N.H. 1999) (prosecution's use of jurors' criminal record
information during jury selection did not violate Sixth
Amendment right to impartial jury), and on due process grounds,
see Saylor v. State, 686 N.E.2d 80 (Ind. 1997) (prosecution
permitted to conduct criminal background checks on potential
jurors, and trial court's willingness to entertain discovery
request from defendant to obtain the information from prosecutor
assured that defendant received due process of law); cf.
Goodale, 740 A.2d 1026 (prosecution's use of jurors' criminal
background information during jury selection violated due
process clause, because defendant could not have obtained the
information under state law, and the prosecution did not
disclose to defendant discrepancies between the criminal records
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and jurors' questionnaires unless juror was selected to panel). 2
The challenge before us is based on the pertinent Virginia
statutes and on considerations of fundamental fairness.
The parties agree that Code § 19.2-389(A)(1) governs the
issue. It states, in pertinent part:
Criminal history record information shall be
disseminated, whether directly or through an
intermediary, only to:
Authorized officers or employees of criminal
justice agencies, as defined by § 9-169, for
purposes of the administration of criminal
justice and the screening of an employment
application or review of employment by a
criminal justice agency with respect to its
own employees or applicants, and
dissemination to the Virginia Parole Board
. . . .
The statute refers specifically to the definitions provided in
Code § 9-169 of such key terms as "criminal justice agencies"
and "administration of criminal justice." A "criminal justice
agency" is defined in the statute as any "governmental agency
. . . which as its principal function performs the
administration of criminal justice." Code § 9-169.
"Administration of criminal justice" is defined, inter alia, as
the "performance of any activity directly involving the . . .
2
A number of the jurisdictions that have upheld the
prosecution's review of potential jurors' criminal background
information have also held the defendant has a due process right
to review the information as well. Because Salmon has not
asserted a right to review the disputed information, we do not
decide whether the defense was entitled to disclosure of the
information in this case.
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prosecution . . . of accused persons or criminal offenders
. . . ." 3 Id. Because the administration of criminal justice,
by definition, includes "the prosecution . . . of accused
persons or criminal offenders," the Office of the Commonwealth's
Attorney constitutes a "criminal justice agency" within the
meaning of Code § 9-169. This conclusion is supported by the
description of the Commonwealth's Attorney in Code
§ 15.2-1627(B) as "a part of the department of law enforcement
of the county or city in which he is elected or appointed . . .
[having] the duties and powers imposed upon him by general law,
including the duty of prosecuting all warrants, indictments or
informations charging a felony." Thus, because the Office of
the Commonwealth's Attorney is a criminal justice agency within
the meaning of Code § 19.2-389(A)(1), the statute permits
dissemination of criminal history record information to
authorized officers or employees of that agency.
Salmon contends, however, that a prosecutor's review of
potential jurors' criminal background records is not an
3
Code § 9-169 defines "administration of criminal justice"
as the
performance of any activity directly
involving the detection, apprehension,
detention, pretrial release, post-trial
release, prosecution, adjudication,
correctional supervision, or rehabilitation
of accused persons or criminal offenders or
the collection, storage, and dissemination
of criminal history record information.
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"activity directly involving the . . . prosecution . . . of [an]
accused person[ ]" and, therefore, does not constitute the
"administration of justice." Code § 9-169 (emphasis added).
His argument is without merit. "In a criminal case, a
'prosecution' is the process in which an accused is brought to
justice from the time a formal accusation is made through trial
and final judgment in a court of appropriate jurisdiction."
Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343
(1999) (citing Sigmon v. Commonwealth, 200 Va. 258, 267, 105
S.E.2d 171, 178 (1958)). According to this definition, voir
dire of potential jurors directly involves the prosecution of a
criminal case, because it is part of "the process in which an
accused is brought to justice from the time a formal accusation
is made through trial and final judgment . . . ." Id. The
Commonwealth's Attorney's use of potential jurors' criminal
background information, therefore, is directly related to the
prosecution of criminal cases and is authorized by Code
§ 19.2-389(A)(1). Thus, because the Office of the
Commonwealth's Attorney is a criminal justice agency, and
because the "administration of justice" includes the prosecution
of criminal cases, Code § 19.2-389(A)(1) authorizes the
Commonwealth's Attorney to review the criminal background
records of prospective jurors.
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Salmon contends the Commonwealth's Attorney's review of
potential jurors' criminal background information is
fundamentally unfair to criminal defendants. Salmon argues that
the Commonwealth's review of such information allows it to
inquire into prospective jurors' backgrounds without incurring
the possible hostility from the panel that questioning during
voir dire might engender, thereby giving the prosecution an
unfair advantage in the exercise of its peremptory challenges.
Salmon argues that this purported advantage would lead to juries
unfairly biased against the defendant, because the
Commonwealth's access to the criminal record information in
question would allow it to "screen out" potential jurors who had
previously been arrested or indicted, but not convicted, and who
might, therefore, be especially sympathetic to a defendant in
Salmon's position. We find no merit in these arguments.
While "[i]t is always the duty of the trial court to secure
a fair jury, and to avoid, if possible, any suspicion of
unfairness," Core v. Core's Adm'rs, 139 Va. 1, 13, 124 S.E. 453,
456 (1924), it is well established in Virginia that "[t]he
manner in which jury selection is conducted is within the
discretion and control of the trial court, guided by statute and
rule of court." Edlow v. Arnold, 243 Va. 345, 346, 415 S.E.2d
436, 437 (1992) (citations omitted). As noted, the trial court
followed the mandate of Code § 19.2-389(A)(1) in overruling
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Salmon's objection to the Commonwealth's review of potential
jurors' criminal record information prior to voir dire. We have
previously noted that where harm alleged by an appellant is
"equivocal and speculative," we find no abuse of the trial
court's discretion. Haase v. Haase, 20 Va. App. 671, 680, 460
S.E.2d 585, 589 (1995). Such is the case here. Salmon has
shown no harm or prejudice that accrued to him as a result of
the Commonwealth's access to the criminal background records of
potential jurors, and we perceive none. Moreover, most of our
sister states have held that the prosecution's review of
potential jurors' criminal background records "does not result
in juries biased against the defendant, but merely eliminates
bias against the government." Wayne R. LaFave, et al., 5
Criminal Procedure § 22.3(b), at 302 (1999). We share this
view. Thus, for the foregoing reasons, we affirm the
conviction.
Affirmed.
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