COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
BILLY LEE TAYLOR
OPINION BY
v. Record No. 0377-96-1 JUDGE ROSEMARIE ANNUNZIATA
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Sterling H. Weaver, Sr., for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Appellant, Billy Lee Taylor, was convicted by a jury of
second degree murder and a related firearm charge. On appeal, he
contends the trial court erred in refusing to grant a mistrial
based on a juror's delayed response to a voir dire question.
Finding no error, we affirm his convictions.
I.
During voir dire, the trial court asked prospective jurors,
"Have any of you ever been the victim or have any members of your
immediate family ever been the victim of a violent crime?" Juror
Clements did not respond. Following the exercise of peremptory
challenges, Clements was included as a jury member. After
impanelment and opening statements, but before evidence was
presented, the court recessed for lunch. Upon reconvening,
Clements revealed that she had not disclosed during voir dire
that her husband had been held up at gunpoint earlier that year.
Clements reiterated the inadvertence of her nondisclosure and
stated her belief that she could try the case at bar on the basis
of the evidence presented. 1
1
In a conference room out of the jury's presence but in the
presence of appellant and the attorneys for both parties, the
following colloquy transpired between the court and juror
Clements:
COURT: Okay. Miss Clements, we're back
here in my chambers. I understand
the Bailiff tells me that you have
remembered that you husband had
been the victim of a violent crime,
is that right?
JUROR: Well, you know, when you said
violent crime, it didn't really
register and, you know what I mean,
he was held up --
COURT: At gunpoint?
JUROR: Gunpoint.
COURT: When was that?
JUROR: You know what, I can't -- This is
awful. It was either the spring or
the early summer.
COURT: This year?
JUROR: This year.
COURT: Was there a trial?
JUROR: No, no.
COURT: Never had to go to court or
anything like that?
JUROR: No, sir.
COURT: Well, the question, you know, I've
asked others is that do you think
that that experience would in any
way prevent you from trying this
- 2 -
(..continued)
case, listening to the evidence and
making a decision in this case
without being affected, prejudiced
in any way by the experience your
husband had?
JUROR: I wouldn't think so. Now, I'm
saying I wouldn't think so in the
respect that I didn't even remember
it, I really didn't, and I said
I've got to tell somebody because I
got real nervous about it after I
remembered it.
COURT: I think it's appropriate --
JUROR: I didn't mean to do this, I really
didn't. I'm so sorry.
COURT: Do you think then it would in some
way affect you ability to make a
decision based on the evidence you
hear in court or not?
JUROR: I'm trying to be as objective as I
know how and I don't think it would
because I don't think that it would
affect my judgment.
COURT: Okay. You think that you could put
that out of your mind, do you?
JUROR: I'm trying, now that I remember --
I know this sounds terrible and I
hate to do this to you worse than
anything in the world --
COURT: That's all right. I want you to be
honest and straightforward.
JUROR: It made me real nervous, scared me.
COURT: I understand that. Don't be afraid
because we understand. What I want
to know now, though, is now that
you've remembered it, do you
believe you could try this case
today and the next couple of days
and render a verdict based only on
the law and the evidence that you
- 3 -
(..continued)
hear in this case without in any
way being affected by the
experience or the knowledge that
your husband had this experience?
Are you having some trouble? You're
hesitating.
JUROR: Yes, I am, and that's why; it
scared me to death, it really did.
COURT: What scared you to death.
JUROR: It scared me it didn't come to my
mind and then when I thought about
it I said Oh, my Lord. Then when I
started thinking about it, the more
I thought about it --
COURT: The more you thought about the
incident, you mean?
JUROR: Right.
COURT: The more you thought about it,
what?
JUROR: That I'm trying, I'm going to be as
objective, use my own judgment.
COURT: You mean you can use your own
judgment without being affected by
the knowledge that your husband was
held up, is that right?
JUROR: Yes, sir. I'm -- I feel terrible
about this, I really do.
COURT: Stop worrying about that now, about
the fact that you didn't tell us.
That's neither here nor there right
now. What I want to know is --
JUROR: Whether I can do this right?
COURT: You can do this without having that
interfere with your judgment?
JUROR: To the best of my ability, I'll do
the best I can.
- 4 -
Appellant's counsel asked no questions of Clements but
requested a mistrial, stating
I doubt very seriously if there would have
been grounds to strike her for cause, I think
you probably would have allowed her to stay
on the panel, but that would have been
information that only she could have provided
to us that would have been valuable to us in
determining whether or not we wanted to
exercise a strike to remove her from the
panel.
We now are at the point where we've
exhausted all of our strikes, the jury has
been selected and seated and now this
information comes to bear; and I can tell the
Court that with someone who'd been, someone
who had a family member, a husband who'd been
robbed at gunpoint within the last six months
and with the assailant not being apprehended,
I would have, on behalf of my client,
exercised a strike to remove that person from
the panel, not because I would have felt that
the person would have been biased or
prejudiced either in favor of the
Commonwealth or the defendant, but because
those life experiences may have in some way
filtered over into her decision-making
process here today.
I am now without the ability to do that.
The only way I can get the ability to select
a jury based on the information from the
questioning being given properly is that that
information is given before I have the
opportunity to use up my strikes. That being
passed, I would ask that the Court grant a
(..continued)
COURT: I know you will, but do you think
you can put that out of your mind
and try this case just on the
evidence that you hear in this
courtroom?
JUROR: Yes, sir, I think I can.
- 5 -
mistrial.
The court found that Clements had not intentionally withheld the
information and that "she honestly believe[d] and demonstrated
that [the incident would] not interfere with her judgment." The
court denied appellant's motion for mistrial, finding that going
forward would not prejudice appellant.
II.
We address the issue whether Clements' failure to give a
timely response to the voir dire question prejudiced appellant's
right of peremptory challenge such that the trial court erred in
refusing to grant a mistrial. 2 "`On appeal the denial of a
motion for a mistrial will not be overruled unless there exists a
manifest probability that the denial of a mistrial was
prejudicial.'" Bottoms v. Commonwealth, 22 Va. App. 378, 385,
470 S.E.2d 153, 157 (1996) (citation omitted).
While the issue presented in this case has not been
addressed in Virginia, it was settled by the United States
Supreme Court in McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984). See also Zerka v. Green, 49 F.3d 1181 (6th
Cir. 1995); United States v. Edmond, 43 F.3d 472 (9th Cir. 1994);
2
The thrust of appellant's argument on brief is that
Clements' disclosure established that she was unable to stand
indifferent to the cause and that the trial court, therefore,
erred in refusing to grant a mistrial. Appellant did not raise
this argument at trial, where he stated his belief that Clements
was not subject to a strike for cause. To the extent appellant
now argues that Clements should have been stricken for cause, his
contention is procedurally barred. Rule 5A:18.
- 6 -
Rasmussen v. Sharapata, 895 P.2d 391 (Utah Ct. App. 1995). But
see State v. Scher, 650 A.2d 1012, 1018-21 (N.J. Super. Ct. App.
Div. 1994).
The McDonough Court evaluated whether the trial court abused
its discretion in refusing to grant a new trial when it learned
that a juror had failed to respond affirmatively to a voir dire
question. The Court premised its analysis on harmless error
principles, which the Court found to reflect "the practical
necessities of judicial management." 464 U.S. at 553-56. 3 In
that light, the Court found that "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. Thus, the Court
adopted the following rule:
to obtain a new trial in such a situation, a
party must first demonstrate that a juror
failed to answer honestly a material question
3
This Court has long held that "[a litigant]
is entitled to a fair trial but not a perfect
one, for there are no perfect trials." . . .
We have also come a long way from the time
when all trial error was presumed prejudicial
and reviewing courts were considered
"citadels of technicality." The harmless
error rules adopted by the Court and Congress
embody the principle that courts should
exercise judgment in preference to the
automatic reversal for "error" and ignore
errors that do not affect the essential
fairness of the trial.
McDonough, 464 U.S. at 553 (citations omitted).
- 7 -
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.
Id. at 556.
Applying the McDonough analytical model here, we hold that
the trial court did not abuse its discretion in refusing to grant
a mistrial. Notwithstanding Clements' failure to respond timely
to the question propounded during voir dire, there was no dispute
at trial that she stood indifferent to the cause. Because there
was no basis for a challenge for cause, Clements' presence on the
jury did not affect the essential fairness of the trial,
notwithstanding the impairment to appellant's right of peremptory
challenge. Thus, we find no manifest probability that the denial
of appellant's motion for a mistrial was prejudicial.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
- 8 -