COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
THEODORE EDWARD GREEN
OPINION BY
v. Record No. 2774-96-1 JUDGE RICHARD S. BRAY
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
James O. Broccoletti (Zoby & Broccoletti, on
brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
A jury convicted Theodore Edward Green (defendant) of second
degree murder and related use of a firearm. Defendant complains
on appeal that the trial court erroneously denied his motion for
a mistrial based upon alleged juror misconduct and later
disallowed post-verdict investigation of the incident. Finding
no error, we affirm the convictions.
I.
A venire was assembled for trial of defendant on indictments
charging the murder of Walter C. Williams and attendant use of a
firearm. After advising the panel that the purpose of voir dire
was to "ensure that [no one was] related to any of the parties,"
conscious of any "interests or bias in the case," or otherwise
ineligible to serve on the jury, the following questions,
pertinent to this appeal, together with the collective responses
of the venire, were propounded by the court and counsel:
The Court: Have any of you or have any members
of your immediate family been the
victim of a crime involving the use
of a firearm?
The Jurors: No.
The Court: Have any members of your immediate
family been the victim of a
homicide?
The Jurors: No.
The Court: Have you or have any members of
your immediate family ever been
prosecuted by the Norfolk
Commonwealth Attorney's Office?
The Jurors: No.
* * * * * * *
The Court: Do any of you have any interest in
the trial or outcome of this case?
The Jurors: No.
The Court: Have any of you acquired any
information about the alleged
offense or the accused from any
source outside of the courtroom?
The Jurors: No.
The Court: Our system of justice presumes the
accused is innocent until proven
guilty. Is each of you able to keep
this presumption alive in your mind
throughout the entire case until you have
entered the jury room to begin you [sic]
deliberations?
The Jurors: Yes.
The Court: You understand the Commonwealth
must prove the defendant's guilt
beyond all reasonable doubt?
The Jurors: Yes.
* * * * * * *
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The Court: Have any of you expressed or formed
any opinion concerning the guilt or
innocence of the accused?
The Jurors: No.
The Court: Are any of you sensible of any bias
or prejudice for or against the
Commonwealth or the accused?
The Jurors: No.
* * * * * * *
The Court: Do any of you know of any reason
whatever which would prevent you from
giving a fair and impartial trial to the
Commonwealth and to the accused based
solely on the law and the evidence?
The Jurors: No.
* * * * * * *
Defendant's
Attorney: Are there any jurors among you that have
the opinion that just because the
defendant has been charged under the
pending indictments that he's guilty?
The Jurors: No.
Defendant's
Attorney: Have any of you been the victim of
a crime involving violence?
The Jurors: No.
Counsel then exercised their respective peremptory challenges and
a jury was impaneled, free from exception.
II.
The Commonwealth's evidence established that defendant
inflicted gunshot wounds on both himself and Williams, the
victim, during an argument between the two men. Williams later
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died as a result of his injuries. Commonwealth witness Edith
Harris testified that she observed a "drive-by shooting" but was
unsure if a car was "involved," didn't recall if either the
"shooter" or victim was in a vehicle, and could identify no one
involved in the offenses. However, witness Darnell Blunt
testified that defendant exited a car, "confronted" and "swung"
at the unarmed Williams, "shot himself" "in the leg," "turned
around and shot" Williams, and "got in the car and left."
Defendant testified that he was walking toward his parked
automobile, after conversing with a friend, when he "saw a car
turning around in my peripheral vision . . . [and] somebody in
the car . . . said, [']there goes the M . . . F . . . right
there.[']" These remarks were followed by several gunshots, one
of which struck him in the leg. He denied knowing or injuring
the victim or possessing a firearm during the incident. Defense
witness Melanie Woodhouse had observed "firing" from a vehicle
that rounded the corner "real fast" while defendant was "standing
. . . talking" with someone.
III.
After several hours of jury deliberations, the foreman
announced that, "[w]e have a hung jury." Without objection,
however, deliberations resumed following an "Allen charge" by the
trial court. Shortly thereafter, the court received a
handwritten note from the jury advising that, "One of the jurors
has stated that relatives of hers were involved in a drive-by
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shooting" and inquiring, "Would or could this have any influence
or importance in this case?" 1
Defendant immediately moved for a mistrial, arguing that no
juror had disclosed personal or immediate family victimization by
"violence" but "now . . . [a juror is] asking us if . . . she is
impartial because . . . a relative . . . was a victim of a
drive-by shooting." Noting that the question did not identify
either the juror or a member of her immediate family as a victim,
the status referenced in voir dire, the court denied defendant's
motion and, without objection, instructed the jury to "decide
this case on the testimony and exhibits . . . [in] evidence,"
without considering "[t]he experience of a relative of a juror."
Deliberations resumed, followed by verdicts of guilty, related
sentencing proceedings, and discharge of the jury.
Defendant requested a presentence report and an attendant
hearing was conducted several months after trial. Defendant then
renewed his earlier mistrial motion "based upon the question
posed by the jury" in its note to the court, asserting that it
suggested a lack of "impartiality" and juror "misconduct" during
voir dire. In the alternative, defendant urged the court to
recall the "whole jury," identify the juror in issue, and permit
defendant to examine her with respect to misconduct and bias.
1
A second note requested "a copy of Ms. Edith Harris' report
to the police," describing her "testimony [as] vague, yet very
important." In response, the court instructed the jury that the
document was "not admissible into evidence."
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The court overruled both motions, resulting in this appeal.
IV.
Defendant first contends the note clearly revealed that an
unidentified juror had failed to disclose during voir dire that
she "had a relative who was a victim of a crime involving a
firearm," despite inquiry by the court. He maintains that "an
affirmative answer . . . could have led to a motion to exclude
for cause as a result of bias" or promoted a more informed
exercise of peremptory strikes, thereby avoiding the "implied
bias" of the juror.
We are mindful that
[t]he right to a trial by an impartial jury
is guaranteed under both the United States
and Virginia Constitutions. This guarantee
is reinforced by legislative enactment and by
the rules of court. It is the trial judge's
duty to secure an impartial jury for the
parties. Resolution of the question of a
juror's impartiality depends upon the facts
and circumstances of each particular case.
At a minimum, . . . the law requires that the
juror "stand indifferent in the cause." Any
reasonable doubt regarding the prospective
juror's ability to give the accused a fair
and impartial trial must be resolved in favor
of the accused.
Swanson v. Commonwealth, 18 Va. App. 182, 184-85, 442 S.E.2d 702,
703-04 (1994) (quoting Gosling v. Commonwealth, 7 Va. App. 642,
645, 376 S.E.2d 541, 543-44 (1989)).
However, to 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
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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) (emphasis added) (quoting McDonough Power Equipment, Inc.
v. Greenwood, 464 U.S. 548, 556 (1984)). Thus, "juror misconduct
does not automatically entitle either litigant to a mistrial."
Robertson v. Metropolitan Washington Airport Authority, 249 Va.
72, 76, 452 S.E.2d 845, 847 (1995). The trial court must also
find a probability of prejudice, with the "burden of establishing
that probability . . . upon the party moving for a mistrial."
Id.
When the issue arises from a "midtrial" challenge to a
juror's impartiality, we "will reverse the trial court's decision
only for an abuse of discretion," applying the "same standard" of
review appropriate to appellate consideration of a decision to
seat a venireperson. Hunt v. Commonwealth, 25 Va. App. 395, 399,
488 S.E.2d 672, 674 (1997); see David v. Commonwealth, 26 Va.
App. 77, 80, 493 S.E.2d 379, 381 (1997) (juror impartiality a
factual determination, disturbed on appeal only for "manifest
error"). Hence, we will not overturn "the denial of a motion for
a mistrial . . . unless there exists a manifest probability that
[the ruling] was prejudicial." Taylor, 25 Va. App. at 17, 486
S.E.2d at 110.
Here, the jury's note indicated that "one of the jurors" had
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"relatives . . . involved in a drive-by shooting" and questioned
the "influence or importance" of such circumstances to "this
case." On voir dire, the panel had been asked, "[h]ave any of
you or . . . any member of your immediate family" been "the
victim of a crime involving . . . a firearm," "homicide," or
"violence." (Emphasis added). Thus, lacking a disclosure that
either a juror or immediate family member had been the victim of
an offense named in the court's inquiry, the note did not
establish an untruthful response on voir dire. Moreover, the
note clearly did not facially demonstrate bias or partiality.
Thus, defendant failed to demonstrate both juror misconduct and
bias. 2
Further, the trial court, with the agreement of counsel,
specifically instructed the jury to ignore "the experience of a
relative of a juror" and "decide this case on the testimony and
exhibits [in] evidence." "Unless the record shows to the
contrary, it is to be presumed that the jury followed an explicit
cautionary instruction promptly given." Albert v. Commonwealth,
2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986) (citation
omitted).
V.
Defendant next contends that the trial court erroneously
denied his post-verdict motion to recall the "whole jury" and
2
Responses to other questions posed to the panel on voir
dire confirmed a fair and impartial jury.
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identify and investigate the juror referenced in the note. The
record discloses that defendant made no effort to pursue such
relief when the issue first arose during trial. Instead, fully
aware of the note's contents and implications, defendant elected
to forego a timely inquiry and await the verdict.
"To permit prisoners to avail themselves,
after verdict, of pre-existing objections to
the competency of jurors, as a matter of
right, would not only be unreasonable, but
most mischievous in its consequences . . . .
A prisoner knowing, or willfully remaining
ignorant of the incompetency of a juror,
would take the chances of a favorable
verdict . . . ; and if the verdict should be
adverse, would . . . [seek to] avoid its
effect."
Allen v. Commonwealth, 122 Va. 834, 845-46, 94 S.E. 783, 787
(1918) (emphasis added) (quoting Bristow's Case, 15 Gratt. (56
Va.) 648). Thus, defendant's "conscious decision to find out
what the jury was going to do . . . in hopes that [it] might
acquit" constituted a waiver of his right to further inquiry. 3
Gray v. Hutto, 648 F.2d 210, 211 (4th Cir. 1981); United States
v. Breit, 712 F.2d 81, 82 (4th Cir. 1983); see Robertson, 249 Va.
at 76-77, 452 S.E.2d at 847; Royal v. Commonwealth, 2 Va. App.
59, 69-70, 341 S.E.2d 660, 666 (1986) (rev'd on other grounds,
Royal v. Commonwealth, 234 Va. 403, 362 S.E.2d 323 (1987)).
3
Such circumstances are clearly distinguishable from
instances of juror misconduct first discovered post-verdict. Cf.
Robertson, 249 Va. at 76, 452 S.E.2d at 847, with Commercial
Union Ins. Co. v. Moorefield, 231 Va. 260, 266-67, 343 S.E.2d
329, 333 (1986), and Haddad v. Commonwealth, 229 Va. 325, 330,
329 S.E.2d 17, 20 (1985), and Kearns v. Hall, 197 Va. 736, 743,
91 S.E.2d 648, 653 (1956).
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Accordingly, we affirm the convictions.
Affirmed.
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