COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons ∗
Argued at Chesapeake, Virginia
CORY DeLAURENCIO
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2497-98-1 JUDGE DONALD W. LEMONS
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. and
Associates, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Cory DeLaurencio was convicted of capital murder, robbery
and use of a firearm in the commission of a felony. On appeal,
he contends (1) the trial court erred by refusing to strike a
juror for cause and (2) the evidence was insufficient to support
the convictions for robbery and murder during the commission of
a robbery. Finding no reversible error, we affirm the
convictions.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
At approximately 11:00 p.m. on January 14, 1996, Traibeon
Thomas was driving eastbound on Route 44. He had trouble with a
tire and pulled his vehicle over to the side of the road, near
the Laskin Road exit in Virginia Beach. Carl Gilliam, who was
also driving eastbound on Route 44, stopped his vehicle to
assist Thomas. Gilliam drove Thomas to his apartment where
Thomas called a tow truck. Gilliam then took Thomas to an ATM
to obtain money to pay for the tow truck. When they returned to
Thomas' car, Gilliam saw a white Honda Civic parked in front of
the vehicle. Gilliam stopped his car in front of the Honda.
According to Gilliam, Thomas said, "it looked like somebody was
in his car." Thomas walked up and confronted DeLaurencio, who
then fatally shot Thomas in the head. Gilliam drove off, called
"911" and reported the incident.
Shortly after the incident, DeLaurencio was arrested and
taken into custody. He admitted that he and Aaron Merritt had
broken into the car to remove the speakers and were in the
process of removing them when Thomas returned. Thomas told
DeLaurencio to "rise up out of the car." DeLaurencio admitted
backing out of the car, pulling a gun out of his pocket, and
shooting Thomas. DeLaurencio said he then returned to the Honda
where his friend Merritt was waiting. After speaking with
Merritt, DeLaurencio returned to where Thomas was lying and took
his wallet. Merritt and DeLaurencio drove off in the Honda.
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When the police examined Thomas' vehicle, they discovered that
the back area in the rear seat had been pulled away from the
frame of the vehicle exposing two of the large speakers.
DeLaurencio was indicted by a grand jury for capital murder
in violation of Code § 18.2-31(4), robbery in violation of Code
§ 18.2-58, and (3) use of a firearm in the commission of a
felony in violation of Code § 18.2-53.1. On December 3, 1996,
the robbery indictment was amended by adding "or attempted
robbery."
After all the evidence was presented, the jury received a
capital murder instruction predicated only on robbery and
omitting attempted robbery. DeLaurencio was convicted on all
charges and sentenced to a term of life for capital murder,
twenty years for robbery and three years for the use of a
firearm in the commission of a felony.
II. MOTION TO STRIKE PROSPECTIVE JUROR
The constitutional right of an accused to a trial by jury
is only meaningful if that jury is impartial. See U.S. Const.
amends. VI and XIV; Va. Const. art. 1, § 8. This constitutional
guarantee is reinforced by legislative enactment and by the
Rules of the Supreme Court of Virginia: veniremen must "stand
indifferent in the cause." Code § 8.01-357; see Breeden v.
Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976);
Swanson v. Commonwealth, 18 Va. App. 182, 184-85, 442 S.E.2d
702, 704 (1994) (citation omitted); Rule 3A:14.
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"'Trial courts, as the guardians of this fundamental right,
have the duty to procure an impartial jury.'" Brown v.
Commonwealth, 28 Va. App. 315, 326-27, 504 S.E.2d 399, 404
(1998) (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621,
454 S.E.2d 363, 364 (1995)). Accordingly, "the trial judge must
probe the conscience and mental attitude of the prospective
jurors to ensure impartiality." Griffin, 19 Va. App. at 621,
454 S.E.2d at 364. A juror holding "a preconceived view that is
inconsistent with an ability to give an accused a fair and
impartial trial, or who persists in a misapprehension of law
that will render him incapable of abiding the court's
instructions and applying the law, must be excluded for cause."
Sizemore v. Commonwealth, 11 Va. App. 208, 211, 397 S.E.2d 408,
410 (1990).
"'[I]n determining whether a prospective juror should have
been excluded for cause, we review the entire voir dire, rather
than a single question and answer.'" Brown, 28 Va. App. at 327,
504 S.E.2d at 404 (quoting Barnabei v. Commonwealth, 252 Va.
161, 173, 477 S.E.2d 270, 277 (1996)). Whether a juror is
impartial is a question of historical fact. See Wainwright v.
Witt, 469 U.S. 412, 428 (1985). On appeal, a trial judge's
decision to seat a juror is entitled to great deference, and the
decision will not be overturned unless the error is manifest.
See McGill v. Commonwealth, 10 Va. App. 237, 241, 391 S.E.2d
597, 600 (1990).
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Here, DeLaurencio contends that the prospective juror
should have been struck for cause based on his "prejudice
relating to the presumption of innocence" and based on his
"prejudice relating to bias toward law enforcement witnesses."
We disagree and hold that the trial court did not err by not
striking this prospective juror for cause.
"Even though a prospective juror may hold preconceived
views, opinions, or misconceptions, the test of impartiality is
whether the venireperson can lay aside the preconceived views
and render a verdict based solely on the law and evidence
presented at trial." Griffin, 19 Va. App. at 621, 454 S.E.2d at
364. The rationale behind this rule of law has been stated by
the Supreme Court of the United States:
In these days of swift, widespread and
diverse methods of communication, an
important case can be expected to arouse the
interest of the public in the vicinity, and
scarcely any of those best qualified to
serve as jurors will not have formed some
impression or opinion as to the merits of
the case. This is particularly true in
criminal cases. To hold that the mere
existence of any preconceived notion as to
the guilt or innocence of an accused,
without more, is sufficient to rebut the
presumption of a prospective juror's
impartiality would be to establish an
impossible standard. It is sufficient if
the juror can lay aside his impression or
opinion and render a verdict based on the
evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). The Supreme Court
of Virginia observed:
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"In these days of newspaper enterprise and
universal education, every case of public
interest is almost, as a matter of
necessity, brought to the attention of all
the intelligent people in the vicinity, and
scarcely any one can be found among those
best fitted for jurors who has not read or
heard of it, and who has not some impression
or some opinion in respect to its merits.
It is clear, therefore, that upon the trial
of the issue of fact raised by a challenge
for such cause the court will practically be
called upon to determine whether the nature
and strength of the opinion formed are such
as in law necessarily to raise the
presumption of partiality."
Briley v. Commonwealth, 222 Va. 180, 184-85, 279 S.E.2d 151, 154
(1981) (quoting Reynolds v. United States, 98 U.S. 145, 155-56
(1878)). Therefore, "[t]he constitutional guarantee of an
impartial jury does not contemplate excluding those who have
read or heard news accounts concerning the case or even
exclusion of those who have formed an opinion based on such
accounts." Wilmoth v. Commonwealth, 10 Va. App. 169, 173, 390
S.E.2d 514, 516 (1990).
Accordingly, jurors are not required to be totally ignorant
of the facts and issues involved in a case on which they sit.
See Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358
(1987), cert. denied, 485 U.S. 1015 (1988). It is sufficient if
they can set aside any impression or opinion and decide the case
solely on the evidence presented at trial. See id. This
ability to set aside any impression or opinion garnered from
newspaper or other media sources, however, must be demonstrated
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beyond a reasonable doubt. See Gosling v. Commonwealth, 7 Va.
App. 642, 647, 376 S.E.2d 541, 544 (1989). Accordingly, any
reasonable doubt as to a juror's qualifications must be resolved
in favor of the accused. See Breeden, 217 Va. at 298, 227
S.E.2d at 735.
Here, the prospective juror acknowledged awareness of
accounts of the crime in the media but his awareness was
coextensive with the brief summary of allegations provided by
the trial judge at the commencement of voir dire. Although he
characterized the media's account as "prejudging" the accused,
the prospective juror repeatedly stated that he would base his
decision upon the evidence presented at trial.
Additionally, viewing the voir dire of the prospective
juror as a whole, it is clear that he was committed to hearing
the evidence and observing the demeanor of witnesses before
making determinations of credibility. The juror dispelled any
notion that the status of being a police officer would per se
render the officer's testimony more believable than contrary
testimony by one who was not a police officer. In the
hypothetical "swearing contest" posed by defense counsel, the
prospective juror stated, "it would depend on who the individual
is and what the facts were." A person's occupation is not
excluded from the mix of facts that are permissible in
determining credibility.
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It is ironic that the entire colloquy with the prospective
juror over credibility of police testimony took place when the
defendant's theory of the case did not involve any credibility
determinations based upon testimony by police officers. The
defendant had confessed to his involvement in the shooting and
to taking the victim's wallet. At trial, he argued that he did
not intend to take the victim's wallet when he shot the victim
and that the killing and the taking of the wallet were two
separate acts. In both his motion to strike and in his motion
to set aside the verdict, he argued that the evidence was
insufficient to show that the killing occurred during the
commission of a robbery. From the identification of potential
witnesses for the defense, it is clear that the hypothetical
"swearing contest" with a police officer was not anticipated and
was not part of the defendant's theory of the case.
DeLaurencio's reliance upon Brown v. Commonwealth, 29 Va.
App. 199, 510 S.E.2d 751 (1999), is misplaced. In Brown, one
juror had been the victim of an attempted abduction and possible
sexual assault and expressed reservations about her ability to
set aside her personal experiences in a trial involving similar
charges. The second juror in Brown could not embrace the
presumption of innocence. Neither of the issues in Brown are
implicated in this case.
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Upon review of the voir dire as a whole, we find that the
trial judge did not err by refusing to strike this prospective
juror for cause.
III. ROBBERY
The issue on appeal as granted by this Court is as follows:
Whether the trial court committed reversible
error by failing to grant appellant's
motions to strike and to set aside the
jury's verdicts and by finding the evidence
sufficient that appellant committed robbery
sufficient for a finding of guilty for
robbery under Code § 18.2-31(4).
In DeLaurencio's motion to strike, he maintained that a larceny
of the wallet took place but that the evidence was insufficient
to sustain a conviction for robbery. Additionally, DeLaurencio
maintains that "the killing and the robbery were two separate
acts"; consequently, the evidence was "insufficient to show that
the killing occurred in the commission of a robbery or attempted
robbery."
Robbery is "the taking, with intent to steal, of the
personal property of another, from his person or in his
presence, against his will, by violence or intimidation." Jones
v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939)
(citations and quotation marks omitted). "The violence or
intimidation must precede or be concomitant with the taking."
Whitley v. Commonwealth, 223 Va. 66, 73, 286 S.E.2d 162, 166
(1982). Additionally, "[t]he intent to steal and the taking
must coexist. And the offense is not robbery unless the animus
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furandi was conceived before or at the time the violence was
committed." Branch v. Commonwealth, 225 Va. 91, 94-95, 300
S.E.2d 758, 759 (1983).
The robbery instruction given by the trial court without
objection provided:
The Court instructs the jury that the
defendant is charged with the crime of
robbery. The Commonwealth must prove beyond
a reasonable doubt each of the following
elements of that crime:
1. That the defendant intended to steal;
and
2. That a wallet and United States currency
was taken; and
3. That the taking was from Traibeon Thomas
or in his presence; and
4. That the taking was against the will of
the owner or possessor; and
5. That the taking was accomplished by
violence to the person.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty but you shall not fix the
punishment until your verdict has been
returned and further evidence is heard by
you.
If you find that from the evidence that
the Commonwealth has failed to prove beyond
a reasonable doubt any one or more of the
elements of the offense, then you shall find
the defendant not guilty.
DeLaurencio maintains that he did not have the requisite
intent to steal the wallet prior to or concomitant with the act
of violence. However, the object of his intent is immaterial
under the instruction approved by DeLaurencio. He concedes that
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he came to the disabled vehicle with the intent to steal the
speakers. Further, he concedes that a wallet with currency was
taken from the victim against his will. The violence preceded
the taking. "[W]here the violence against the victim and the
trespass to his property combine in a continuing unbroken
sequence of events, the robbery itself continues as well for the
same period of time." Briley v. Commonwealth, 221 Va. 532, 543,
273 S.E.2d 48, 55 (1980). Here, DeLaurencio's mental intent to
steal, the shooting, and the taking of the wallet are closely
connected in time, place, manner and causation. The evidence
was sufficient to support the jury's finding that a robbery
rather than a mere larceny occurred.
Finally, the Grand Jury indictment charged DeLaurencio,
[o]n or about January 14, 1996, did
willfully, deliberately, and with
premeditation, kill Traibeon L. Thomas,
during the commission of robbery or
attempted robbery.
Upon conclusion of the evidence, counsel and the trial judge
discussed jury instructions. Apparently, concerned that the
jury would be confused by the inclusion of "robbery or attempted
robbery" in the instruction, the trial judge allowed DeLaurencio
to choose which of the two circumstances would be offered to the
jury as a basis for liability for capital murder: attempted
robbery of the speakers or robbery of the wallet. We do not
express an opinion concerning the correctness of this procedure
because it is not before us on appeal. It is recited herein to
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explain how the jury was instructed. DeLaurencio chose the
robbery instruction, and attempted robbery was removed from the
jury's consideration.
DeLaurencio concedes that he took the victim's wallet. He
maintains, however, that "the killing and the robbery were two
separate acts" and that the evidence was "insufficient to show
that the killing occurred in the commission of a robbery." The
Commonwealth argues, "[t]he defendant intended to steal from the
victim before the killing and did steal from him before or after
the killing through the use of force. He killed during the
commission of a robbery."
In Quesinberry v. Commonwealth, 241 Va. 364, 402 S.E.2d
218, cert. denied, 502 U.S. 834 (1991), a larceny became a
robbery because the victim interrupted the theft and was killed
in a continuing unbroken sequence of events that were the
"interdependent objects of a common criminal design." Id. at
374, 402 S.E.2d at 224. The jury in Quesinberry was instructed
concerning robbery and found that a robbery occurred.
The Virginia Supreme Court in Quesinberry revisited its
analysis in Briley, 221 Va. 532, 273 S.E.2d 48. It said,
In Briley, Linwood Briley and his cohorts
stopped their victim outside a restaurant,
robbed him at gunpoint, forced him into his
own automobile, abducted him, and took him
to an island located in the James River.
Upon arrival at the island, approximately 15
to 20 minutes after the initial robbery,
they shot him fatally. They drove away in
his car, which they later stripped of parts
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and abandoned. We hold that the murder was
closely related in time, place, and causal
connection to the robbery, making it a part
of the same criminal enterprise as a matter
of law. Id. at 544, 273 S.E.2d at 56.
Since Briley, we have affirmed convictions
for capital murder during the commission of
a robbery when the evidence was sufficient
to support a conclusion that the killing and
theft were interdependent objects of a
common criminal design.
Quesinberry, 241 Va. at 373, 402 S.E.2d at 224 (citations
omitted).
In this case the murder and the robbery were closely
related in time and place and causation sufficient to say that
the murder and robbery were interdependent objects of a common
criminal design.
Finding no reversible error, the convictions for capital
murder, robbery and use of a firearm in the commission of a
felony are affirmed.
Affirmed.
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