Tross v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Fitzpatrick and Senior Judge Hodges
Argued at Alexandria, Virginia

RUSSELL TROSS

v. Record No. 0828-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA DECEMBER 12, 1995

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge

Steven D. Rosenfield (R. Bruce Wiles, on
briefs), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Russell Tross (appellant) was convicted in a jury trial of

capital murder in violation of Code § 18.2-31(4), robbery in

violation of Code § 18.2-58, and using a firearm to commit murder

in violation of Code § 18.2-53.1. On appeal, he argues that the

trial court erred in: (1) exercising jurisdiction over the case

when the juvenile intake system is facially unconstitutional

under the Virginia Constitution's doctrine of separation of

powers; (2) transferring jurisdiction without considering his

amenability to treatment or rehabilitation as a juvenile; (3)

refusing to strike for cause a potential juror predisposed to the

death penalty; (4) denying his motion for a jury view of the

crime scene; and (5) finding the evidence sufficient to support

his convictions for robbery and capital murder. For the reasons

that follow, we affirm the trial court.
 I. BACKGROUND

On January 22, 1993, at 9:30 p.m., appellant, a sixteen-

year-old, and four companions went to the Super Fresh grocery

store in Harrisonburg, Virginia. On the way to the store,

appellant suggested that they steal some beer. Two people,

Clifford Silver (Silver) and Kelly Botkins (Botkins), entered the

store. Intending to use his gun if anyone tried to stop them

from stealing beer, appellant put the gun in his pocket, "just in

case," and followed Silver and Botkins into the store. Silver

and Botkins both took beer and left without paying. Appellant

hid a forty-ounce bottle of beer in his pocket and began to

leave. He walked through the first set of exit doors into the

vestibule. Steven Daniel (Daniel), the store manager, blocked

appellant's exit by standing between him and the second set of

exit doors. Alcohol Beverage Control Board Agent S. O. Decker

(Decker), who was investigating underage alcohol purchases at the

store, was approaching the store's entrance when he saw appellant

raise his right hand and fire a .25 caliber round into Daniel's

face. Decker was standing six to eight feet away from the

entrance when appellant shot Daniel and never saw Daniel touch

appellant. Daniel died shortly thereafter.
Appellant fled with the stolen beer, fired two shots in the

direction of the pursuing ABC agents, and sped off in the car

with the others. Oran Wood (Wood) testified that, when appellant

returned to the car, he had both the gun and a forty-ounce bottle

2
of beer. A Rockingham County sheriff's deputy arrested appellant

a few hours later. At trial, appellant testified that the gun

discharged accidentally when he tried to turn over the gun to

Daniel, who had grabbed his hand.

An intake officer of the Juvenile and Domestic Relations

District Court for Harrisonburg and Rockingham County filed three

petitions against appellant, charging him with capital murder,

robbery, and using a firearm to commit murder. Finding the

requirements of Code § 16.1-269(A) 1 satisfied, the juvenile court

transferred the case to the Circuit Court of Rockingham County.

The circuit court held a de novo hearing pursuant to Code § 16.1-

269(E) and also found the transfer proper under Code § 16.1-

269(A). The court referred the case to a grand jury that

returned three indictments against appellant for capital murder,

robbery, and using a firearm to commit murder. In a jury trial,

appellant was convicted on all three charges and sentenced to

life imprisonment for the capital murder, twenty years for the

robbery, and two years for the firearm charge.
II. JURISDICTION OF JUVENILE COURT AND SEPARATION OF POWERS

After the intake officer authorized the petitions in this

case, appellant moved to quash their issuance. The juvenile and

domestic relations district court denied the motion to quash and

found that the statutorily mandated intake process did not

1
Code § 16.1-269 was repealed in 1994. The juvenile
transfer requirements are now contained in Code § 16.1-269.1.

3
violate the doctrine of separation of powers. On March 9, 1993,

the juvenile judge found as follows: "[T]he appropriate sections

of the Code of Virginia were followed by the intake officer and

. . . the statutory framework of the commencement of juvenile

petitions is constitutional and was followed in this case as to

all three petitions." After transfer to the circuit court and

indictment on all three charges, appellant again moved to quash

the indictments on the same ground. The trial court denied his

motion and found the intake system facially constitutional.
Appellant argues that the trial court lacked jurisdiction to

try him because the juvenile intake system authorizes an

executive branch officer to act in a judicial capacity, thus

violating the principle of separation of powers contained in the

Constitution of Virginia. See Va. Const. art. I, § 5 and art.

III, § 1. 2 He contends that juvenile intake officers are

executive in nature because: (1) the Department of Youth and

Family Services (the Department) 3 appoints them pursuant to Code
2
Article I, Section 5 of the Virginia Constitution provides
"[t]hat the legislative, executive, and judicial departments of
the Commonwealth should be separate and distinct." Article III,
Section 1 of the Virginia Constitution states as follows:

The legislative, executive, and judicial
departments shall be separate and distinct,
so that none exercise the powers properly
belonging to the others, nor any person
exercise the power of more than one of them
at the same time . . . .
3
The Commonwealth does not dispute that the Department of
Youth and Family Services is an executive agency under Code
§§ 2.1-1.1, 2.1-1.2, and 66-1.

4
§ 16.1-233(A); (2) the Department compensates them pursuant to

Code §§ 16.1-233(B) and 16.1-238; and (3) they exercise the

executive power to investigate and arrest. Additionally,

appellant argues that juvenile intake officers possess the

judicial power to determine probable cause, authorize the filing

of petitions, and issue detention orders, thus creating an

overlap in functions that violates the separation of powers

doctrine.
In response, the Commonwealth asserts that: (1) any

possible defect in the juvenile intake system does not affect the

jurisdiction of the juvenile court; (2) an invalidly issued

petition would not void appellant's conviction; and (3) the

juvenile intake system is constitutional. We hold that the

juvenile court properly exercised jurisdiction over appellant's

case.
(A) Juvenile Intake System

The legislature created the juvenile and domestic relations

district courts to fulfill certain purposes, including:
1. To divert from or within the juvenile
justice system, to the extent possible,
consistent with the protection of the public
safety, those children who can be cared for
or treated through alternative programs;
2. To provide judicial procedures
through which the provisions of this law are
executed and enforced and in which the
parties are assured a fair hearing and their
constitutional and other rights are
recognized and enforced;
3. To separate a child from such child's
parents, guardian, legal custodian or other
person standing in loco parentis only when
the child's welfare is endangered or it is in

5
 the interest of public safety and then only
after consideration of alternatives to
out-of-home placement which afford effective
protection to the child, his family, and the
community; and
4. To protect the community against
those acts of its citizens which are harmful
to others and to reduce the incidence of
delinquent behavior.

Code § 16.1-227. To achieve these goals, Code § 16.1-233(A)

authorizes the Director of the Department of Youth and Family

Services to "develop and operate . . . probation and other court

services for juvenile and domestic relations district courts in

order that all children coming within the jurisdiction of such

courts throughout the Commonwealth shall receive the fullest

protection of the court." The Director may appoint the necessary

Department personnel to aid in the development and operation of

court service units. Code § 16.1-233(A). The Department pays

the salaries of these employees with Department funds. Code
§ 16.1-233(B).

In Virginia, two types of probation and court service units

exist: state court service units operated by the Department and

local court service units. Code § 16.1-235. For both state and

local court service units, the chief judge or judges of the

juvenile and domestic relations district court may appoint

probation officers and related court service personnel from a

list of eligible persons certified by the Director or, in local

court service units, certified by the local governing body. Id.

In appointing court service personnel, the juvenile court judges

6
must comply with qualifications and regulations established by

the State Board of Youth and Family Services pursuant to Code

§ 16.1-233(C). Id. "No person shall be assigned to or

discharged from the state-operated court service staff of a

juvenile and domestic relations district court except as provided

in Chapter 10 of Title 2.1, nor without the prior mutual approval

of the judge thereof and the Director." Code § 16.1-233(D).

Additionally, pursuant to Code § 16.1-236, in both state and

local court service units, the chief judge of the juvenile and

domestic relations district court may designate one or more

probation officers as supervisors.
Probation and court service personnel in state-operated

court service units are state employees paid by the Commonwealth.

Code § 16.1-238. Local court service unit probation officers

and personnel are paid by the county or city, although any county

or city complying with minimum standards set by the State Board

may seek reimbursement from the Department for up to one-half of

the compensation paid. Id.

In addition to the traditional investigatory and supervisory

powers of a probation officer, a juvenile probation officer

possesses: (1) "the authority to administer oaths and take

acknowledgements for the purposes of §§ 16.1-259 and 16.1-260 to

facilitate the processes of intake and petition," Code

§ 16.1-237(G); and (2) "the powers of arrest of a police officer

and the power to carry a concealed weapon when specifically so

7
authorized by the judge." Code § 16.1-237(H). Additionally,

juvenile probation officers known as "intake officers" are

responsible for "[c]omplaints, requests and the processing of

petitions to initiate a case" in the juvenile and domestic

relations district courts. Code § 16.1-260(A).

Under Code § 16.1-260(A), the filing of a petition that

meets the requirements of Code § 16.1-262 commences any matter

alleged to be within the jurisdiction of the juvenile and

domestic relations district court. An intake officer "may

authorize a petition to be filed by any complainant having

sufficient knowledge of the matter to establish probable cause

for the issuance of the petition." Code § 16.1-260(B). However,

an intake officer may refuse to authorize the filing of a

petition if he or she finds no probable cause for issuing the

petition or the petition is not in the child's best interests.

Id. If an intake officer refuses to authorize a petition

involving a Class 1 misdemeanor or possible felony, the

complainant has the right to apply to a magistrate for a warrant.

Code § 16.1-260(D). After the filing of the petition, the court

must issue a summons to the child if the child is twelve years

old or older and to the child's parents or guardian. Code
4
§ 16.1-263.
4
Other states have similar juvenile intake systems. For
example, in North Carolina, the Administrative Office of the
Courts has a Division of Juvenile Services that is responsible
for the statewide system of juvenile probation and aftercare
services. N.C. Gen. Stat. § 7A-289.3 (1987). The Director of
the Administrative Office of the Courts appoints the

8
 (B) Juvenile Court Jurisdiction

The jurisdiction of the juvenile and domestic relations

district courts is set out in Code § 16.1-241. Code

§ 16.1-241(A)(1) provides that each juvenile and domestic

relations district court has exclusive, original jurisdiction

over proceedings involving delinquent children, unless the case

is transferred to the circuit court. Additionally, the

legislature enacted a specific provision dealing with any

potential defect in the intake process, providing that "[f]ailure

to comply with the [intake] procedures . . . shall not divest the

juvenile court of the jurisdiction granted it in § 16.1-241."

Code § 16.1-260(G). The filing of a petition pursuant to Code

Administrator for Juvenile Services to head the Division. Id.
The Administrator appoints chief court counselors for each
district with the approval of each chief district judge and the
Director. N.C. Gen. Stat. § 7A-289.4(3) (1987). Each chief
court counselor supervises intake services in his or her
district. N.C. Gen. Stat. § 7A-530 (1979). The intake
counselors in each district screen petitions "alleging that a
juvenile is delinquent or undisciplined to determine whether the
petition should be filed." N.C. Gen. Stat. § 7A-517(17) (1993).
In Maine, the Department of Corrections has a Division of
Probation and Parole that oversees probation and parole services.
Me. Rev. Stat. Ann. tit. 34-A, § 5401 (West 1985). The juvenile
caseworkers who may request the filing of a petition to commence
juvenile delinquency proceedings are employees of the Department.
Me. Rev. Stat. Ann. tit. 15, § 3301(1)(C) (West 1989); Me. Rev.
Stat. Ann. tit. 34-A, § 5602(1) (West 1985).
Similarly, in Maryland, the Department of Juvenile Justice
assigns intake officers to the juvenile courts. Md. Cts. & Jud.
Proc. Code Ann. § 3-801(o) (1995). The Secretary of the
Department must establish juvenile intake services, provide staff
to operate the programs, and supervise the staff. Md. Ann. Code
art. 83C, § 2-127 (1989). Intake officers assigned to the
juvenile courts determine whether the juvenile court has
jurisdiction and authorize the filing of petitions. Md. Cts. &
Jud. Proc. Code Ann. § 3-810(c) (1995).

9
§ 16.1-260(A) is not a jurisdictional prerequisite to the

juvenile court acquiring subject matter jurisdiction over a case

involving a delinquent child.

Additionally, the Commonwealth contends that the United

States Supreme Court's decision in Gerstein v. Pugh, 420 U.S. 103

(1975), resolves this case. In Gerstein, the Supreme Court held

that an "illegal arrest or detention does not void a subsequent

conviction." 420 U.S. at 119 (citing Frisbie v. Collins, 342

U.S. 519 (1952)). The Florida procedures at issue in Gerstein
allowed a prosecutor to charge a defendant by information and

detain him pending trial without any independent probable cause

determination. Id. at 116. A class action filed by Florida

prisoners sought declaratory and injunctive relief under the

Civil Rights Act, 42 U.S.C. § 1983. Id. at 106-07.

In dealing with this Fourth Amendment challenge, the Court

held that the "prosecutor's assessment of probable cause [was]

not sufficient alone to justify restraint of liberty pending

trial." Id. at 118-19. "[T]he Fourth Amendment requires a

timely judicial determination of probable cause as a prerequisite

to detention . . . ." Id. at 126. However, the Court recognized

that, "although a suspect who is presently detained may challenge

the probable cause for that confinement, a conviction will not be

vacated on the ground that the defendant was detained pending

trial without a determination of probable cause." Id. at 119

(emphasis added).

10
 A majority of state and federal courts have relied on

Gerstein in holding that an illegal arrest or detention does not

void a subsequent conviction. See, e.g., Seabolt v. Hopper, 240

S.E.2d 57, 58 (Ga. 1977) (defendant arrested pursuant to warrant

issued by justice of the peace under an invalid fee system);

Tommie v. State, 279 S.E.2d 510, 512 (Ga. Ct. App. 1981)

(defendant returned to state under warrant alleging offense other

than one for which he was subsequently convicted); Commonwealth
v. Sudler, 436 A.2d 1376, 1380 (Pa. 1981) (police failed to

include informant's name in affidavits accompanying arrest

warrant); Commonwealth v. Owens, 649 A.2d 129, 134 (Pa. Super.

1994) (magistrate not detached and neutral because of

quasi-familial relationship with victim), appeal denied, 656 A.2d

118 (Pa. 1995); State v. Schreuder, 712 P.2d 264, 270-72 (Utah

1985) (probable cause statement supporting arrest warrant failed

to reveal source of information or any basis for determining the

credibility or reliability of the source).

Following the Gerstein analysis, these courts remedy an
invalid arrest or detention by excluding evidence derived from

the invalid arrest or detention, rather than by granting a new

trial or dismissing the charges. Sudler, 436 A.2d at 1380;

Owens, 649 A.2d at 134; Schreuder, 712 P.2d at 271. More

importantly, these courts have recognized that an illegal arrest

or detention does not affect the jurisdiction of the court trying

the defendant. Seabolt, 240 S.E.2d at 58; Sudler, 436 A.2d at

11
1380; Schreuder, 712 P.2d at 271-72. In Schreuder, the Supreme

Court of Utah explained the rationale behind the Gerstein rule:
[O]nce the risk of illegal detention has
dissipated, i.e., by the time a trial has
been held, the protection is no longer
relevant or necessary because other
constitutional safeguards have come into
play. Under this analysis, the probable
cause requirement for an arrest warrant
becomes moot by the time a defendant has been
convicted because the much more stringent
requirements of proof at trial have been
employed to protect the defendant.

712 P.2d at 272.

Additionally, "the power of a court to try a person for

crime is not impaired by the fact that he had been brought within

the court's jurisdiction by reason of a 'forcible abduction.'"

Frisbie v. Collins, 342 U.S. 519, 522 (1952) (Michigan police

officers kidnapped defendant in Illinois in violation of Federal

Kidnapping Act and brought defendant to Michigan for trial). In

Frisbie, the Supreme Court reasoned that "due process of law is

satisfied when one present in court is convicted of crime after

having been fairly apprized [sic] of the charges against him and

after a fair trial in accordance with constitutional procedural

safeguards." Id. The United States Supreme Court reaffirmed

Frisbie in United States v. Alvarez-Machain, 504 U.S. 655, 661-62

(1992). In Alvarez-Machain, United States officials abducted a

Mexican national and brought him to the United States for trial

in connection with the kidnapping and murder of a United States

Drug Enforcement Administration (DEA) agent and his pilot. 504

U.S. at 657. The Supreme Court held that the defendant's

12
abduction did not violate the United States-Mexico Extradition

Treaty and that his "forcible abduction [did] not therefore

prohibit his trial in a court in the United States for violations

of the criminal laws of the United States." Id. at 670.

In Valentine v. Commonwealth, 18 Va. App. 334, 443 S.E.2d

445 (1994), this Court relied on Alvarez-Machain and held that

"the alleged defect in the institution of appellant's extradition

pursuant to the Interstate Agreement on Detainers [was] not

jurisdictional." Id. at 338, 443 S.E.2d at 447. Similarly, the

Pennsylvania Superior Court applied the Gerstein-Frisbie analysis

in a juvenile delinquency proceeding involving a juvenile who was

not properly returned to the state for trial pursuant to the

Interstate Compact on Juveniles. See In re Cowell, 364 A.2d 718,

721 (Pa. Super. 1976).

The present situation is analogous to Gerstein and its

progeny. Indeed, the deprivations of Fourth Amendment rights

listed in those cases are far more egregious than the violation

alleged in the instant case. Appellant does not assert that the

intake officer failed to give a neutral evaluation of the basis

underlying the petition nor does he contend that any Fourth

Amendment violation occurred. He concedes that the intake

officer did not abuse his statutory powers and thus violate

appellant's due process rights. Indeed, he makes only a facial

challenge to the statutory scheme and argues no prejudice or

harm. Thus, even if the intake officer system were

13
unconstitutional, any defects in the petition process would not

void appellant's convictions.
(C) Juvenile Intake System's Constitutionality

Lastly, appellant failed to establish that the juvenile

intake system violates the constitutional requirement of

separation of powers.

We recognize that, "'[i]n assessing the constitutionality of

a statute, we must presume that the legislative action is valid.

The burden is on the challenger to prove the alleged

constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App.

840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v.

Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)).

"[I]f a reasonable doubt exists as to a statute's

constitutionality, the doubt must be resolved in favor of its

validity. . . . [C]ourts will declare legislation invalid only

when it is 'plainly repugnant to some provision of the state or

federal constitution.'" Etheridge v. Medical Ctr. Hosp., 237 Va.

87, 94, 376 S.E.2d 525, 528 (1989) (citations omitted).

In both state and local court service units, the chief judge

or judges of the juvenile and domestic relations district courts

are involved in the appointment of juvenile probation officers

and, thus, intake officers. Code § 16.1-235 authorizes juvenile

court judges to appoint probation officers and other court

service personnel. Although the Department Director and the

State Board are involved in the appointment process, this

14
involvement does not minimize the input of the juvenile court

judges. Additionally, under Code § 16.1-233(D), the juvenile and

domestic relations district court judges and the Director have

equal control over the assignment and discharge of the personnel

in state court service units, and the juvenile court chief judges

have the power to appoint probation officers to supervisory

positions under Code § 16.1-236.

"A primary rule of statutory construction is that courts

must look first to the language of the statute. If a statute is

clear and unambiguous, a court will give the statute its plain

meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245

Va. 80, 85, 425 S.E.2d 800, 802 (1993). We hold that the plain

meaning of the statutes involved is that juvenile and domestic

relations district court judges have co-appointment and discharge

powers over juvenile intake officers in both state-operated and

local court service units. Thus, juvenile intake officers are

not purely executive officers as appellant contends, but are

quasi-judicial in nature.

Additionally, the Supreme Court of Virginia has adopted the

"whole power" doctrine in reviewing an alleged violation of the

separation of powers. See Winchester & Strasburg R.R. Co. v.

Commonwealth, 106 Va. 264, 268-70, 55 S.E. 692, 693-94 (1906);

Baliles v. Mazur, 224 Va. 462, 472, 297 S.E.2d 695, 700 (1982).

In Winchester & Strasburg Railroad, the Supreme Court stated as

follows:
When we speak . . . of a separation of the

15
 three great departments of government, and
maintain that that separation is
indispensable to public liberty, we are to
understand this maxim in a limited sense. It
is not meant to affirm that they must be kept
wholly and entirely separate and distinct,
and have no common link or dependence, the
one upon the other, in the slightest degree.
The true meaning is that the whole power of
one of these departments should not be
exercised by the same hands which possess the
whole power of either of the other
departments; and that such exercise of the
whole would subvert the principles of a free
constitution. . . . Indeed there is not a
single constitution of any state in the union
which does not practically embrace some
acknowledgment of the maxim and at the same
time some admixture of powers constituting an
exception to it.

106 Va. at 270, 55 S.E. at 694 (emphasis added) (quoting Dreyer

v. Illinois, 187 U.S. 71, 84 (1902)).

In the instant case, while there is some overlap of

executive and judicial functions, juvenile intake officers do not

exercise the "whole power" of the judiciary. Although the

juvenile intake officers authorize filing petitions to commence

juvenile proceedings, the juvenile and domestic relations

district court judges control the actual disposition of juveniles

before the court. The judicial powers assigned to the juvenile

intake officers, such as determining probable cause to invoke the

juvenile court's jurisdiction and issuing detention orders, are

in accord with the quasi-judicial nature of the intake officers.

Such powers are analogous to the duties of magistrates in the

adult criminal system. See Code § 19.2-45. Thus, for the

foregoing reasons, we hold that the juvenile intake system does

16
not violate the Virginia Constitution's doctrine of separation of

powers.
III. AMENABILITY TO TREATMENT

Next, appellant argues that the trial court erred in

refusing to consider his amenability to treatment or

rehabilitation as a juvenile when deciding whether to transfer

his case to the circuit court. The trial judge found that

appellant's "amenability to treatment or rehabilitation as a

juvenile [was] not a factor in this proceeding" because of the

nature of the charges involved.
In a juvenile transfer hearing, "the trial court's decision

whether to transfer jurisdiction will not be reversed absent a

showing that its exercise of discretion has been abused." Kluis

v. Commonwealth, 14 Va. App. 720, 723, 418 S.E.2d 908, 909-10

(1992). "[W]hen the alleged delinquent act is armed robbery,

rape . . . or murder, . . . the court may certify the child

without making the [amenability to treatment] finding required by
5
this subdivision." Code § 16.1-269(A)(3)(b) (emphasis added).
5
Code § 16.1-269 was repealed in 1994. Code § 16.1-269.1(B)
now provides as follows:

The court may hold a transfer hearing
and certify the juvenile for transfer to the
appropriate circuit court without making the
finding required by subdivision A 4 if a
juvenile fourteen years of age or older is
charged with:
1. A Class 1 or 2 felony violation of
Chapter 4 (§ 18.2-30 et seq.) of Title 18.2
or, if the juvenile is sixteen years of age
or older, a Class 3 felony violation of
Chapter 4 (§ 18.2-30 et seq.) of Title 18.2

17
"The statute . . . dispenses with the finding that the juvenile

is unamenable 'to treatment or rehabilitation' as a prerequisite

to transfer in such instances." Novak v. Commonwealth, 20 Va.

App. 373, 383, 457 S.E.2d 402, 406-07 (1995) (quoting Code

§ 16.1-269(A)(3)(b)). "A determination of nonamenability based

solely on the [delinquent act] . . . is only permissible when the

offense is one of those enumerated in the statute." Hutcherson

v. Commonwealth, 7 Va. App. 534, 537, 375 S.E.2d 403, 404 (1989).
In this case, the delinquent acts committed by appellant

included armed robbery in violation of Code § 18.2-58 and capital

murder in violation of Code § 18.2-31(4). 6 Code

§ 16.1-269(A)(3)(b) specifically lists these acts as not

requiring a finding of nonamenability. Thus, the trial judge did

not abuse his discretion in determining nonamenability based

solely on the nature of the charges.
IV. JUROR STRIKE

Appellant next argues that the trial court erred in refusing

for: (i) murder under Article 1; (ii)
mob-related felony under Article 2; (iii)
kidnapping or abduction under Article 3; or
(iv) assault or bodily wounding under Article
4; or
2. Any unclassified felony violation of
Chapter 4 (§ 18.2-30 et seq.) of Title 18.2
which carries a maximum penalty of
imprisonment for life or a term of
imprisonment of forty years if committed by
an adult.
6
Although not raised by appellant, we note that the use of a
firearm in the commission of murder charge is encompassed within
the "delinquent act" of murder as enumerated in the statute.

18
to strike for cause venireman Jeff Morris (Morris) because Morris

was predisposed to imposing the death penalty.

During voir dire, the trial judge asked Morris: "[W]ould

you be able to consider voting for a sentence less than death?"

Morris answered: "I don't think so." The judge and both

attorneys then questioned Morris regarding his views on the death

penalty. Morris testified that: (1) he would not automatically

vote for the death penalty; (2) he would follow the instructions

of the court; and (3) he would vote for life imprisonment if the

Commonwealth failed to prove the aggravating factors. The court

found, over appellant's objection, that Morris was qualified as a

juror and refused to excuse him for cause. The judge stated:
Although there were certain things that . . .
Mr. Morris, the juror, stated [that] were
maybe not correct or his personal feeling, he
did not hesitate when all the voir dire is
considered to respond with respect to
instruction of law by the Court. And I
believe that based upon my view of the juror
he is under all circumstances qualified to
serve as a juror.

Appellant used his first peremptory strike to remove Morris from

the panel.

On appeal, this Court
"must give deference to the trial court's
decision whether to retain or exclude
individual veniremen because the trial court
'sees and hears the juror.' For that reason,
the trial court's decision in that regard
will not be disturbed on appeal absent a
showing of 'manifest error.'

The standard to be applied by the trial
court in determining whether to retain a
venireman on the jury panel is whether his

19
 answers during voir dire examination indicate
to the court something that 'would prevent or
substantially impair the performance of his
duties as a juror in accordance with his
instructions and his oath.'"

Satcher v. Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831

(1992) (citations omitted) (quoting Eaton v. Commonwealth, 240

Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S.

824 (1991)), cert. denied, 113 S. Ct. 1319 (1993).

In Satcher, the Supreme Court of Virginia upheld the trial

court's refusal to strike five prospective jurors for being

predisposed to the death penalty. 244 Va. at 236, 421 S.E.2d at

831. The Court determined that, although all five veniremen

indicated a favorable attitude toward the death penalty, they

stated that: (1) they could impose life imprisonment in a murder

case; (2) they would consider mitigating evidence; (3) they would

render an impartial verdict regardless of their views about the

death penalty; and (4) they would follow the court's instructions

about the Commonwealth's burden of proving aggravating factors.
Id. at 235, 421 S.E.2d at 830-31. "[W]ith respect to all five,

the trial court expressed confidence in their ability to follow

the court's instructions, to stand indifferent to the cause, and

to render a fair verdict." Id. at 236, 421 S.E.2d at 831.

The colloquy in the instant case is less compelling than

that in Satcher, and the trial court did not err in refusing to

strike Morris for cause. Morris testified that: (1) he would

vote for life imprisonment if the Commonwealth failed to prove

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the aggravating factors; (2) he would consider mitigating

factors; (3) he had not formed an opinion about appellant's guilt

and would have an open mind; and (4) he would follow the judge's

instructions. The trial court's decision to retain Morris does

not show "manifest error" but rather careful consideration by the

trial judge, who was in the best position to determine Morris's

qualifications.
V. JURY VIEW

Appellant contends that the trial court erred in denying his

motion for a jury view of the crime scene because some of the

jurors knew more than others about the Super Fresh grocery store

where the shooting occurred. In denying appellant's motion, the

trial judge stated as follows:
[W]e're not sure what things are there that
were not there [eleven months ago] or
pertinent parts of the store or outside of
the store, whether the lighting is different,
whether many things are different.

* * * * * * *

Here there are many factors that are
important in determination of the case, the
lighting, the time of day, how the lights
were reflecting, various things. And the
thing that concerns me is . . . whether . . .
the jury may attempt to substitute what they
see on a view for what evidence they heard
. . . .

Code § 19.2-264.1 allows a jury view in criminal cases "when

it shall appear to the court that such view is necessary to a

just decision." Granting a view is within the sound discretion

of the trial court. Quesinberry v. Commonwealth, 241 Va. 364,

21
378, 402 S.E.2d 218, 227, cert. denied, 502 U.S. 834 (1991).

We find no abuse of discretion by the trial court.

Photographs, diagrams, and other evidence established the layout

of the store, and the view was not "necessary to a just

decision."
VI. SUFFICIENCY OF THE EVIDENCE

(A) Robbery

Lastly, appellant argues that the trial court erred in

finding the evidence sufficient to support both his robbery and

murder convictions. He contends initially that the evidence

failed to establish that he took beer from the store. At trial,

the evidence was disputed as to whether appellant took beer from

the Super Fresh store.
"Determining the credibility of witnesses who give

conflicting accounts is within the exclusive province of the

jury, which has the unique opportunity to observe the demeanor of

the witnesses as they testify." Lea v. Commonwealth, 16 Va. App.

300, 304, 429 S.E.2d 477, 479 (1993). "The jury's finding that a

particular witness was credible will not be reversed on appeal

unless plainly wrong or without evidence to support it." Id.

In this case, the evidence established that appellant had

beer in his possession when he entered the car following the

shooting. Appellant's testimony that he handed beer to Silver

while inside the store was contradicted by Wood, one of

appellant's companions. Wood testified that appellant had beer

22
when he "got into the car." (Emphasis added). The jury was

entitled to believe Wood over appellant.

Robbery is defined as "'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.'" Beard

v. Commonwealth, 19 Va. App. 359, 361-62, 451 S.E.2d 698, 699-700

(1994) (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163

S.E.2d 570, 572-73 (1968)).
The distinctive elements of robbery are
(1) the use of violence, or the threat
thereof, against the victim, and (2) the
theft of property from his person or in his
presence. Theft of property is a trespass
upon the rights of the owner therein for as
long as he is deprived of the use thereof; he
retains legal possession of the goods stolen
even when they are in the actual possession
of the thief. In a robbery prosecution,
where 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) (citation omitted), cert. denied, 451 U.S. 1031 (1981).
The Supreme Court of Virginia has "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 374, 402 S.E.2d at 224.

"[W]here a killing and a taking of property are so closely

related in time, place, and causal connection as to make them

23
parts of the same criminal enterprise, the predicates for capital

murder . . . are established." Pope v. Commonwealth, 234 Va.

114, 125, 360 S.E.2d 352, 359 (1987), cert. denied, 485 U.S. 1015

(1988).

In Quesinberry, the defendant and an accomplice planned to

break into a warehouse. Before going to the warehouse, the

defendant stopped to get his gun for "security." While the

defendant and his accomplice were stealing money from an office

in the warehouse, the warehouse owner interrupted them. The

owner ran, and the defendant chased and shot him. The defendant

and his accomplice then took the money and left the warehouse.
Quesinberry, 241 Va. at 368-69, 402 S.E.2d at 221.

"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 . . . ." Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

In this case, the evidence established that appellant and his

companions planned a trip to the store to steal beer. Before

appellant went inside the store, he put the gun in his jacket

pocket, "just in case," intending to use the gun if anyone tried

to stop them. Appellant hid a bottle of beer in his pocket. As

he was leaving, the manager stopped him, and appellant shot the

manager in the face. Under these circumstances, as in

Quesinberry, the evidence was sufficient to show that the taking

of the beer and the killing of Daniel were part of the "same

24
criminal enterprise" and intimately connected.

Appellant contends that, even if he took the beer, it was a

completed act before he encountered the manager and thus no

robbery occurred. However, this Court has endorsed the concept

of continuing asportation. Beard, 19 Va. App. at 363, 451 S.E.2d

at 700. In Beard, we held that "asportation of stolen property

continues and is not complete until the taker severs the property

from the absolute control and possession of the victim." Id.

In this case, appellant's asportation of the beer continued until

he shot the store manager in the face and took beer from the

manager's dominion and control.

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 (B) Murder

Appellant also asserts that the evidence is insufficient to

support his conviction for murder because he testified that the

gun discharged accidentally. Again, appellant's version of

events was disputed by Agent Decker, who testified that he saw

appellant shoot the manager in the face and that the manager did

not cause the gun to discharge accidentally. Specifically, Agent

Decker stated as he demonstrated for the jury:
They were approximately this far apart and
their shoulders I remember were square. The
defendant turned to his right and smiled, a
few seconds later similar to this, that
quick, [his] right arm goes up . . . to Steve
Daniel's face. I heard a popping sound.
Daniel immediately collapsed to the floor.
* * * * * * *

I did not see any contact [between Mr.
Daniel and the defendant].

The jury, as fact finder, was entitled to believe Agent Decker

over appellant. The evidence was sufficient to convict appellant

of murder, and, accordingly, the decision of the trial court is

affirmed.

Affirmed.

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