COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
EMMETT WARD CRESSELL, JR.
OPINION BY
v. Record No. 0270-99-3 JUDGE SAM W. COLEMAN III
JULY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
J. Colin Campbell, Judge
Mark W. Claytor (Jeffrey L. Dorsey, on
brief), for appellant.
Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Emmett Ward Cressell was convicted in a jury trial of first
degree murder. He was sentenced to life imprisonment and fined
$100,000. On appeal, Cressell argues that the trial court erred
by denying his motion for a change of venue and by failing to
strike three jurors for cause. He also argues that the evidence
is insufficient to support his conviction. Finding no error, we
affirm.
I. BACKGROUND
On July 24, 1997, Cressell, Louis Ceparano, Hazel Anderson,
Christy Harden, and G.P. Johnson spent the evening and early
morning hours of July 25, celebrating Harden's twenty-first
birthday. At some point in the evening, the birthday celebration
moved to Ceparano's trailer. Everyone was drinking heavily except
Anderson. Before the evening ended, Johnson, who was of
African-American descent, became the victim of a gruesome murder.
Johnson, who was intoxicated, was doused with gasoline, set afire,
burned alive, and decapitated.
Hazel Anderson testified that at least twice during the
evening Cressell grabbed Johnson by the shirt collar, called him a
"nigger," and accused Johnson of trying to start a fight between
Cressell and Ceparano. Later that evening, Cressell and Ceparano
were "horseplaying" with Johnson on a mattress on the floor. Both
Cressell and Ceparano stated several times that they were going to
take Johnson outside and "burn him on a white cross." Anderson
testified that Cressell took off Johnson's watch and, in response
to Johnson's request to return the watch, Cressell stated that
"where you're going, they had their own time." Cressell then
grabbed Johnson's shoulders while Ceparano grabbed Johnson's legs,
and together, the two carried Johnson outside. Johnson,
apparently not comprehending the situation, told Cressell and
Ceparano to be careful not to hurt his ankle, which he had injured
in a car accident a few weeks earlier. Johnson stated, as he was
being carried out of the trailer, "why don't you just shoot me."
Harden, who remained in the trailer with Anderson, testified
that she looked out the window and noticed a large fire. Harden
stepped onto the front porch and realized that Johnson was being
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burned alive. She testified that Ceparano was standing near
Johnson and Cressell was walking back in the direction of the
trailer. Cressell and Ceparano returned to the trailer without
Johnson. Both Anderson and Harden stated that they smelled
gasoline fumes, and Anderson testified that she smelled the fumes
emanating from Cressell when he returned to the trailer. Ceparano
went back outside, and when Anderson began to follow Ceparano,
Cressell stated sarcastically, "it'd be best if you don't go
outside." Later, Ceparano cornered Anderson in the kitchen and
told her in a threatening manner that he had walked Johnson home.
He threatened to kill her if she told anyone anything different.
Ceparano again went outside, and when he returned, he had blood on
the front of his pants. Ceparano changed clothes and washed his
pants.
Harden testified that Cressell told her that Ceparano poured
gasoline on Johnson and set him on fire. She testified that she
and Cressell left the trailer, flagged down a passing car, and
proceeded to the Sheriff's office where Cressell informed the
deputies that Ceparano had murdered Johnson.
In Cressell's initial statements to the authorities, he
denied any involvement in Johnson's murder. He later admitted,
however, that he helped Ceparano carry Johnson outside and across
the driveway. Cressell consistently denied pouring gasoline on
Johnson or setting him on fire. Rather, Cressell stated that he
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saw Ceparano pour gasoline on Johnson and set him on fire.
Ceparano denied murdering Johnson.
Johnson's burned, decapitated body was found near Ceparano's
trailer. When investigators arrived at the scene, they discovered
Johnson's body lying in a prone position still on fire. The
investigator observed two burn sites on Ceparano's property. At
the second burn site, the investigator found "what appeared to be
a piece of a skull," a gas can, beer cans, a blood stain, and
debris piled on top of Johnson's body. There appeared to be a
trail of blood from the first burn site to the second. At the
first burn site, investigators found a belt buckle and loose
change. Johnson's wallet was lying on the ground a few feet from
the back door of Ceparano's trailer, and Johnson's checkbook and
watch were on the loveseat in the trailer. Johnson's body had
been decapitated and his head was buried beneath his body in a
hole more than a foot deep. Near the trailer, the investigator
found a shovel and a splitting maul. Ceparano had blood on his
hands and on his clothing.
An autopsy of Johnson's body revealed that the cause of death
was "inhalation of flame with edema of the lungs and burning of
the respiratory passages." The evidence indicated that the fire
had been started using an accelerant. Johnson was decapitated
postmortem. Johnson's skull suffered a number of blunt trauma and
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chop injuries. His skull was fractured, and his brain was out of
the cranial cavity due to the nature of the injuries.
II. ANALYSIS
A. Motion for a Change of Venue
Prior to trial, Cressell moved for a change of venue, arguing
that widespread media attention created "community prejudice"
against him. He argued that the news reports were inflammatory,
hostile, and prejudicial. Cressell stated that a newspaper
photograph of him in a prison uniform, wearing handcuffs and leg
irons, created an aura and impression in the minds of prospective
jurors in the community that he was guilty. The media also
impermissibly reported his criminal record and prejudicial
evidence concerning particulars of the crime that would be
inadmissible at trial. Although Cressell conceded at oral
argument that the media reports were factually accurate, he argued
that the coverage was inflammatory, pointed, and selective,
because the photographs in the newspaper articles of the victim
showed him as a "young, good-looking black man in a dress marine
corps uniform with a background of the American flag," while the
newspaper articles pictured him, the defendant, in "slovenly jail
garb, a mug shot." In addition, Cressell argues that the media
portrayed the murder as a "hate crime" and Grayson County as a
"hot bed of racism." He asserts that by doing so, the media put
the citizens of Grayson County "on trial" to defend their
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reputation as jurors and that is the "reason that [he] was
convicted of anything at all."
At counsel's request, the court took the motion for change of
venue under advisement pending a determination of whether a
qualified and unbiased jury panel could be seated. After voir
dire of eighty-one potential jurors, a panel of twenty-four jurors
was seated. Of the eighty-one prospective jurors, the court
excused twenty because each expressed the view that he or she had
formed an opinion about the defendant's guilt or innocence from
news accounts that he or she would be unable to set aside. The
court excused nine prospective jurors because each was opposed to
the death penalty. Twenty-eight others were excused for "various
sundry reasons." The court denied the motion for a change of
venue, noting that, although the case had received widespread
publicity, a qualified jury had been selected.
"'It is presumed that a defendant can receive a fair trial in
the locality where the offense occurred, and the burden is on the
accused to overcome that presumption by clearly demonstrating
widespread prejudice against him.'" Brown v. Commonwealth, 28 Va.
App. 315, 336, 504 S.E.2d 399, 409 (1998) (quoting LaVasseur v.
Commonwealth, 225 Va. 564, 577, 304 S.E.2d 644, 651 (1983)). "'A
change of venue based on pre-trial publicity is required when the
defendant demonstrates that there is "widespread" prejudice
against him and that such prejudice would, with reasonable
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certainty, prevent a fair trial.'" Brown, 28 Va. App. at 336, 504
S.E.2d at 409 (quoting Chandler v. Commonwealth, 249 Va. 270, 275,
455 S.E.2d 219, 222 (1995)). The trial court's decision whether
to grant a motion for change of venue is reviewed for an abuse of
discretion. See Kasi v. Commonwealth, 256 Va. 407, 420, 508
S.E.2d 57, 64 (1998), cert. denied, 119 S. Ct. 2399 (1999).
"'[E]xtensive knowledge in the community of either the crimes
or the putative criminal is not sufficient by itself to render a
trial constitutionally unfair.'" George v. Commonwealth, 242 Va.
264, 274, 411 S.E.2d 12, 18 (1991) (quoting Dobbert v. Florida,
432 U.S. 282, 303 (1977) (abrogation on other grounds recognized
by Grimes v. State, 807 S.W.2d 582 (Tex. Crim. App. 1991)). "The
fact that there have been media reports about the accused and the
crime does not necessarily require a change of venue." Roach v.
Commonwealth, 251 Va. 324, 342, 468 S.E.2d 98, 109 (1996)
(citation omitted). "A significant factor in determining whether
a change of venue is warranted is whether the media reports are
factual and accurate." Mueller v. Commonwealth, 244 Va. 386, 398,
422 S.E.2d 380, 388 (1992) (citation omitted). "Another
significant factor the trial court must consider is 'the
difficulty encountered in selecting a jury.'" Roach, 251 Va. at
342, 468 S.E.2d at 109 (quoting Mueller, 244 Va. at 398, 422
S.E.2d at 388).
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Cressell has not overcome the presumption that he received a
fair trial in Grayson County. Here, virtually every prospective
juror admitted hearing about the case through the media or by
speaking with others. After extensive voir dire, twenty-four
jurors were selected who "unequivocally answered that they could
enter the jury box with an open mind and wait until the entire
case was presented before reaching a fixed opinion."
Prospective jurors are not required or
expected to be completely ignorant of the
facts and the issues surrounding a highly
publicized case; all that is required is
that a prospective juror can lay aside his
or her impression or opinion and render a
verdict based upon the law and evidence.
Ascher v. Commonwealth, 12 Va. App. 1105, 1114, 408 S.E.2d 906,
912 (1991) (citation omitted).
Moreover, the jury was selected with relative ease, and more
prospective jurors were excused for reasons unrelated to publicity
than were excused for holding fixed, preconceived notions about
Cressell's guilt. See Brown, 28 Va. App. at 337-38, 504 S.E.2d at
409-10 (finding no error in denying motion where twenty-four of
sixty prospective jurors acknowledged awareness of publicity);
Thomas v. Commonwealth, 244 Va. 1, 10-12, 419 S.E.2d 606, 611-12
(1992) (affirming trial court's ruling denying change of venue
where thirty-one percent of prospective jurors questioned were
excused because of pretrial publicity). Finally, Cressell
conceded at oral argument that the media reports were factually
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accurate. See Mueller, 244 Va. at 398, 422 S.E.2d at 388; see
also Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757,
767 (1989) (noting that media coverage disclosing the accused's
criminal record is insufficient to justify a change of venue).
Accordingly, the trial court did not abuse its discretion in
denying the motion for a change of venue.
B. Jury Challenge
Cressell argues that the trial court erred in failing to
strike three prospective jurors for cause. Cressell contends that
prospective jurors Organ and Hancock should have been struck
because they were members of a "poisoned panel" that he sought to
have struck in its entirety and that juror Thompson should have
been struck because during voir dire she expressed sentiments that
she could not be indifferent to the cause.
"The right to a trial by an impartial jury is guaranteed
under both the United States and Virginia Constitutions." Gosling
v. Commonwealth, 7 Va. App. 642, 645, 376 S.E.2d 541, 543 (1989)
(citing U.S. Const. amend VI; Va. Const. art I, § 8). "[S]o long
as the jury that sits is impartial," the compelled use of a
peremptory challenge by a defendant to remove a biased juror does
not violate the Sixth Amendment because peremptory challenges are
"auxiliary" and "are not of federal constitutional dimension."
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United States v. Martinez-Salazar, 120 S. Ct. 774, 779-80 (2000).1
However, the Virginia Supreme Court has held in Breeden v.
Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 737 (1976), that
as a matter of state law, relying on Code §§ 8.01-357 and -358, an
accused is entitled to a panel of jurors free from exception
before exercising peremptory challenges. Thus, we review a trial
court's decision whether to strike a prospective juror for cause
for an abuse of discretion and that ruling will not be disturbed
on appeal unless it appears from the record that the trial court's
action constitutes manifest error. See Stockton v. Commonwealth,
241 Va. 192, 200, 402 S.E.2d 196, 200 (1991).
The 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 may have formed an opinion based
on such accounts. . . . The test, instead,
is whether a juror is capable of laying
aside a preconceived opinion and rendering
"a verdict solely on the evidence."
Wilmoth v. Commonwealth, 10 Va. App. 169, 173, 390 S.E.2d 514, 516
(1990) (citations omitted).
1. Jurors Organ and Hancock
Jurors Organ and Hancock were members of a thirteen member
panel that was initially subjected to voir dire as a group.
1
Because the dispositive holding in Martinez-Salazar
involved a due process challenge under Fed. R. Crim. P. 23, it
is inapposite to our case.
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During voir dire, eleven of the prospective jurors stated they had
formed opinions about the accused's guilt or expressed other
sentiments which required that the judge excuse those eleven
jurors for cause. Organ and Hancock were the two remaining jurors
from the panel of thirteen who were not removed for cause.
Cressell timely objected to the seating of jurors Organ and
Hancock on the ground that they were present and unduly influenced
when the other prospective jurors stated in Organ's and Hancock's
presence that each had formed an opinion about the case, or
explained how they knew the parties, or that they were prejudiced
toward the testimony of law enforcement.
Although none of the eleven jurors excused expressly stated
his or her opinion about Cressell's guilt or innocence, one
readily concludes from the responses that most, if not all,
believed Cressell was guilty. However, both Organ and Hancock
unequivocally stated that they did not hold fixed, preconceived
opinions regarding Cressell's guilt or innocence and affirmatively
stated that they could be fair and impartial. Both answered
affirmatively when asked whether they understood that Cressell was
presumed innocent until proven guilty and that he had no burden to
present any evidence. Both Organ and Hancock also answered
affirmatively when asked if they could set aside any preconceived
views and render a verdict based solely on the law and evidence
presented at trial. Moreover, Organ and Hancock stated that they
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were not influenced by the fixed opinions of the eleven
prospective jurors who were excused. Accordingly, the trial court
did not err in refusing to strike Organ and Hancock for cause.
2. Juror Thompson
Cressell argues that the court erred by refusing to strike
Thompson for cause and that the court's refusal to strike Thompson
was not cured by the defense's use of a peremptory challenge.
Cressell correctly asserts that his use of a peremptory
strike to remove Thompson does not cure prejudice caused to him by
seating a biased juror. See Brooks v. Commonwealth, 24 Va. App.
523, 530-31, 484 S.E.2d 127, 130 (1997) (finding that a
prosecutor's use of a peremptory challenge to remove a prospective
juror who should have been stricken for cause will not cure
possible prejudice); see also DeHart v. Commonwealth, 20 Va. App.
213, 216, 456 S.E.2d 133, 134 (1995). "A defendant has a right to
an impartial jury drawn from 'a panel [of twenty] free from
exceptions.'" Breeden, 217 Va. at 300, 227 S.E.2d at 737
(citation omitted); see also Code §§ 8.01-357, 8.01-358,
19.2-262(2). "If a venireman who should have been removed for
cause is allowed to remain on the jury panel, the accused is
'denied the opportunity of having another impartial person on his
jury.'" Brown v. Commonwealth, 29 Va. App. 199, 212, 510 S.E.2d
751, 757 (1999) (citation omitted). The trial court, however, did
not err in refusing to strike Thompson for cause.
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During voir dire of Thompson, the following colloquy
occurred:
COURT: Can you put what you've read or
heard about it totally aside and have an
open mind when you enter the jury box?
THOMPSON: Yes sir.
* * * * * * *
[DEFENSE COUNSEL] CLAYTOR: Have you formed
any opinion about his [Cressell's] character
or anything like that based upon what you've
read in the paper?
THOMPSON: (No audible response.)
[DEFENSE COUNSEL] CLAYTOR: Do you think
[the defendant is] guilty of something as he
sits here? I see you nodding your head Ms.
Thompson. What do you mean by that?
THOMPSON: I feel like he's probably guilty
of something because why would he be here at
this far.
* * * * * * *
[DEFENSE COUNSEL] CLAYTOR: Do you believe
that someone who is present during the
commission of a crime and possibly could
have stopped it shares responsibility for
that crime and is therefore guilty of at
least something? I see you shaking your
head yes Ms. Thompson.
THOMPSON: Yes.
[DEFENSE COUNSEL] CLAYTOR: Now in the event
that the Court gave you instructions to the
contrary, can you put that feeling aside and
do exactly as the Court instructs you do to?
I see you shaking your head yes Ms.
Thompson.
THOMPSON: (Inaudible.)
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* * * * * * *
[DEFENSE COUNSEL] DORSEY: Now based on what
you've seen in the media, and I won't [sic]
you to be honest about this, okay. I want
you to think about your answers about this
and be honest about this. But based on what
you've seen in the media, read in the media,
read in the newspaper, seen on T.V., do you
have a feeling about what happened in this
case? Ms. Thompson, you're saying you
didn't. Is that right?
THOMPSON: Yes sir.
* * * * * * *
[DEFENSE COUNSEL] DORSEY: Now here's the,
here's the, here's a tough question. If the
Court told you to set that opinion aside to
forget about that opinion and have it not
enter into your mind or into your heart, to
use that word, if the Court told you to set
that opinion aside, would that be a hard
thing for you to let . . . ? You could set
it aside?
THOMPSON: Yes.
* * * * * * *
[DEFENSE COUNSEL] DORSEY: We talked about
media coverage. Have you talked about this
case with anybody? Have you-all had
conversations about this case with folks in
your neighborhood or community over the
course of the months that this has been
going on?
THOMPSON: (No audible response.)
[DEFENSE COUNSEL] DORSEY: During those
conversations, did those conversations lead
you to come to conclusions about what you
think happened?
THOMPSON: (No audible response.)
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[DEFENSE COUNSEL] DORSEY: Ms. Thompson,
you're saying yes. You're saying yes.
THOMPSON: Yes.
[DEFENSE COUNSEL] DORSEY: Here again, I'm
going to ask you the same question that I
asked you before about media coverage, I
mean, now you already answered this
question. I understand your answer. But
would those conversations that you've had
combined with media and combined with
everything that you know about this case,
would that influence your decision?
THOMPSON: (No audible response.)
[DEFENSE COUNSEL] DORSEY: Could you set
that aside?
THOMPSON: (No audible response.)
[DEFENSE COUNSEL] DORSEY: You could set it
aside? Ms. Thompson?
THOMPSON: (No audible response.)
* * * * * * *
[DEFENSE COUNSEL] DORSEY: From the witness
stand. From exhibits that are produced
before you. I want to ask you a question
about your exposure to the media and
exposure to the newspaper and T.V. accounts.
Let's say that you've heard all the evidence
from the witness stand. Got all the
exhibits and the case is over. Mr. Bolt's
presented his case and we've presented our
case and the case is over. But there was
some fact that you read about in the
newspaper that was never presented to you in
Court. Never showed in Court. Would you
have a hard time setting that fact aside?
You read something in the paper that you
know, well I know that this happened because
I read it in the paper a million times but
that never showed upon [sic] in Court.
Would you still think about that fact? Ms.
Thompson?
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THOMPSON: I don't think I would.
[DEFENSE COUNSEL] DORSEY: You don't think
you would? You'd be able to set that aside?
THOMPSON: Yeah.
* * * * * * *
[COMMONWEALTH'S ATTORNEY] BOLT: Ladies and
Gentlemen . . . if the Court instructs you
that the defendant is presumed innocent, do
you, does anybody have a problem with that
concept? That, the Court will instruct you
that the defendant is presumed innocent.
I'm going to ask you to respond also. Does
everyone agree with that? Everyone nods
affirmative. Defendant's presumed
innocence. The Court, and we will assume
if, if the Court instructs you that the
defendant, whether he's arrested, indicted,
or anything for this offense that you should
not consider that. Does anyone have any
problem with putting that out of your mind
and not considering it? If the Court tells
you to.
THOMPSON: No.
* * * * * * *
THE COURT: Mr. Bolt had asked you can you
give a fair and impartial trial and let me
just ask you. Can you and I'll ask this to
all three (3) of you, can all of you set
aside any impressions that you may have
received through the news media or any
opinion you may have formed? And if you
become the jury and you're sworn to try the
case, can you enter the jury box with an
open mind and can you render a verdict based
solely and only on the evidence and the law
that you receive? Can you do that? Ms.
Thompson nods yes.
"A prospective juror who is biased, prejudiced, or who
'persists in a misapprehension of law that will render him [or
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her] incapable of abiding the court's instructions and applying
the law, must be excluded for cause' because such a juror cannot
be impartial." Griffin v. Commonwealth, 19 Va. App. 619, 621, 454
S.E.2d 363, 364 (1995) (quoting Sizemore v. Commonwealth, 11 Va.
App. 208, 211, 397 S.E.2d 408, 410 (1990)).
It is not uncommon to discover during voir
dire that prospective jurors have
preconceived notions, opinions, or
misconceptions about the criminal justice
system, criminal trials and procedure, or
about the particular case. 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 (citation omitted).
Cressell argues that this case is controlled by our decision
in Brown, 29 Va. App. 199, 510 S.E.2d 751, and the Supreme Court's
decision in Breeden, 217 Va. 297, 227 S.E.2d 734. We disagree.
In Brown, the defendant sought to strike three prospective jurors
for cause. The holding concerning the seating of prospective
jurors one and two is relevant to our discussion. During voir
dire, prospective juror one stated that she had been the victim of
a violent crime. In response to questions regarding whether that
experience would influence her ability to "keep an open mind" and
render a decision based on the facts of the case, she expressed
equivocation. She stated that she was not certain that her
experience would influence her decision. We held that the juror
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expressed "numerous reservations about her ability to serve
impartially on the jury in light of her personal experiences." We
noted that nearly all of the juror's responses contained the
phrases, "I think," "I don't know," and "I would try." A trial
judge has an opportunity to hear, observe, and assess the
connotations of a juror's response; therefore, equivocal
statements alone will not suffice to disqualify a juror. However,
"all doubts about the fitness of a juror to serve must be resolved
in favor of the accused." Brown, 29 Va. App. at 208, 510 S.E.2d
at 755.
Prospective juror two in Brown, was Chief Counsel to the
United States Secret Service and, stated during voir dire that
"[his] whole career has been law enforcement. So [he] tend[ed] to
view things from a law enforcement perspective." He stated that
he might give more weight to an officer's testimony. The
prospective juror also expressed his belief that it was unlikely
that a case would go to trial if the accused was not guilty. We
held that the juror's firmly held belief and his view toward law
enforcement created "a reasonable doubt about his ability to sit
impartially on a jury." The circumstances presented in Brown are
readily distinguishable from the circumstance presented by juror
Thompson. No evidence proved that Thompson was a victim of a
violent crime, and she was unequivocal about being able to fairly
render a decision in the case. Further, she did not harbor a
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firmly held personal belief about law enforcement and those who
are standing trial that would interfere with her being an
impartial juror.
In Breeden, the defendant sought to strike a prospective
juror for cause, who, during voir dire, stated that she had read
about the crime in the newspaper and "was glad that person was
caught." She also stated that she held the view that the
defendant would have to prove his innocence. After stating those
views, the Commonwealth's Attorney attempted to rehabilitate the
juror, asking if she could follow the court's instructions in
applying the facts to the law and follow the court's instructions
regarding the presumption of innocence. She stated, "Yes sir."
In holding that the trial court erred in seating the prospective
juror, the Virginia Supreme Court noted that it was not "concerned
with a possible misapprehension of law," stating that "[j]urors
are not expected to be learned in legal maxims." Rather, the
Court, considering the voir dire of the prospective juror in its
entirety, found that "her response to that crucial question was
not so much a symptom of her ignorance of the law as a candid
reflection of the state of mind concerning [the defendant's]
guilt."
Here, although Thompson initially expressed her belief that
Cressell was "probably guilty of something because why would he be
here at this far" and her belief that if one is present during the
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commission of a crime and does nothing to intervene that person is
also culpable, she subsequently stated she could set those beliefs
aside if instructed to do so by the court. She expressed no
equivocation in her ability to follow the court's instructions and
in her ability to apply the facts to the law. Thompson also
advised the court that she had not formed any preconceived
opinions about Cressell's guilt or innocence based on the pretrial
publicity, and she expressed no reservations regarding the
defendant's presumption of innocence. Here, the attempts to
rehabilitate Thompson were made largely by defense counsel, not
the trial judge. But see McGill v. Commonwealth, 10 Va. App. 237,
242, 391 S.E.2d 597, 600 (1990) (holding that where a prospective
juror has been shown not to be impartial, a trial judge may not
rehabilitate the juror by merely asking persuasive, leading
questions to which the juror acquiesces). Thompson's initial
statements about an accused's innocence reflects "a symptom of her
ignorance of the law," not a "reflection" of her state of mind
about Cressell's guilt. The trial judge had the opportunity to
observe Thompson's demeanor, to hear her responses and the
connotations which she placed upon her answers, and to better form
an opinion than we can on a cold record as to whether she had a
fair, impartial, and open state of mind. The trial judge did not
abuse his discretion in seating juror Thompson. Accordingly, we
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find that the trial court did not err in refusing to strike
Thompson for cause.
C. Sufficiency
Cressell argues that the evidence is insufficient to support
his conviction. He asserts that the Commonwealth failed to prove
he was directly involved in Johnson's death. He argues that
Anderson's testimony, which was the only testimony remotely
linking him to the crime, was inherently incredible and unworthy
of belief. Cressell asserts that Anderson gave contradictory
testimony at trial and lied to the defense investigator.
On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all reasonable
inferences fairly deducible therefrom. See Commonwealth v.
Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). "The
credibility of the witnesses and the weight accorded the evidence
are matters solely for the fact finder who has the opportunity to
see and hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)
(citations omitted). In order for a witness' testimony to be
disregarded as a matter of law, the evidence must be inherently
incredible or the witness' account of the events must be so
contrary to human experience as to be unworthy of belief. See
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Owens v. Commonwealth, 186 Va. 689, 696-97, 43 S.E.2d 895, 898
(1947).
At trial, Anderson admitted she lied to the defense
investigator about whether she was in love with Ceparano, pregnant
with his child, which she aborted after the murder, and whether
she was afraid of him. She stated that she lied because she
"[knew] whose lawyers you were and what you was trying to pull."
Anderson also admitted she said in her statement to the defense
investigator that she was unsure from whom the gas smell emanated.
However, at trial, she unequivocally stated that the gasoline
smell came from Cressell. She also gave conflicting statements
and evidence concerning whether she had one drink or two during
the course of the evening.
Although Anderson made several contradictory statements
during trial and admitted having made statements to the defense
investigator, Anderson's account of the events was not inherently
incredible, and the fact finder was entitled to weigh this
evidence in determining Anderson's credibility and Cressell's
guilt. See Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. Her
account of the events provides a cogent explanation for Johnson's
gruesome murder and is not incredible as an explanation for what
occurred. Moreover, defense witness Harden corroborated
Anderson's account of the events that transpired that evening.
Both testified that the group gathered to celebrate Harden's
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birthday, all but Anderson became heavily intoxicated, either
Cressell or Ceparano removed Johnson's watch, Cressell and
Ceparano carried Johnson outside, and both Cressell and Ceparano
were outside when Johnson was doused with gasoline and set on
fire. Both witnesses testified that they smelled gasoline after
the burning when Cressell and Ceparano returned to the trailer,
although Harden was unable to positively attribute the odor to
Cressell. Anderson's testimony that she heard Cressell threaten
to burn Johnson on a white cross and call him a "nigger," although
not corroborated by Harden, was not so incredible as to be
unworthy of belief.
The evidence proved that Cressell, at the very least, aided
and abetted in carrying Johnson outside knowing that Ceparano
intended to kill Johnson and that he assisted in dousing Johnson
with gasoline and in burning Johnson alive. Even if Cressell did
not actually set Johnson on fire, he assisted Ceparano in the
murder. See Pugliese v. Commonwealth, 16 Va. App. 82, 93-94, 428
S.E.2d 16, 25 (1993) (stating that "'proof that a person is
present at the commission of a crime without disapproving or
opposing it, is evidence from which, in connection with other
circumstances, it is competent for the jury to infer that he
assented thereto'"). Cressell made hostile remarks to Johnson,
stating he was going to take him outside and burn him on a cross.
Cressell helped Ceparano carry Johnson outside and across the
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driveway, and he smelled of gasoline when he returned to the
trailer. Finally, in statements to the authorities, Cressell lied
about his involvement in the crime. See Rollston v. Commonwealth,
11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) ("A defendant's
false statements are probative to show he is trying to conceal his
guilt, and thus are evidence of his guilt.").
For the foregoing reasons, we find that the evidence was
sufficient to prove beyond a reasonable doubt that Cressell was
guilty of first degree murder. Accordingly, we affirm.
Affirmed.
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