Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

BILLY JOE BROWN
OPINION BY
v. Record No. 1450-96-1 JUDGE MARVIN F. COLE
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Andrew M. Sacks (Sacks & Sacks, on briefs),
for appellant.

Robert H. Anderson, III, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

In a jury trial, appellant, Billy Joe Brown, was convicted

of first degree murder, abduction and attempted rape. On appeal,

he contends the trial court erred in denying: (1) his motion for

appropriate relief in connection with the pretrial sponsorship by

two Virginia Beach police officers of a memorial scholarship fund

in memory of the deceased victim; (2) his motion for a mistrial

or, in the alternative, for dismissal of the jury panel after a

juror indicated that the venire, prior to trial and in the jury

assembly room, had engaged in a widespread discussion of the

guilt of the defendant; (3) his motion to strike for cause three

jurors because their responses on voir dire indicated they were

not free of exception to sit as jurors; and (4) his motion for a

change of venue. For the reasons that follow, we affirm.

On June 18, 1995, appellant and his codefendant, Dustin
Turner, first met the murder victim, Jennifer Evans, at a hotel

bar. Turner and appellant were off-duty Navy "SEAL" trainees.

In the early morning hours of June 19, 1995, appellant murdered

Evans, after which, he and Turner transported and hid her body in

a secluded area. Evans' body was located by authorities on June

27, 1995, eight days after she disappeared.

I. THE MEMORIAL SCHOLARSHIP FUND

Facts
Officers Louis P. Thurston, III, and Mike Carey are media

relations officers with the Virginia Beach Police Department. In

that capacity, they act as liaisons between the media and the

police department. In July 1995, after appellant's and Turner's

arrest, Thurston and Carey "approached a local bank about

maintaining" funds and "accepting donations" for a memorial

scholarship fund for the victim. Later, Thurston and Carey

"contacted a CPA to help administer the fund." They also

contacted a printer and had posters and handbills printed, which

they caused to be posted and distributed in the community.

Thurston testified that the chief of police gave oral

permission to create the fund. Thurston stated that the fund was

not sponsored by the police department. Most of the fund work

was done on the officers' own time, with only a "[v]ery

minuscule" amount done while on duty. Many times they took leave

of absence to work on the fund. According to Thurston, media

relations officers "do not get involved in the investigation" of

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a case. Whenever they were asked about the fund, Thurston and

Carey consistently stated that it was an individual effort and

not a police-sponsored activity. The bank, the CPA, and the

printer volunteered their services. Thurston averred that he and

Carey made no specific mention of the defendants in

communications relating to the fund; however, one communique

informed the public that the fund would remain open through the

trials of the men accused of Evans' death. On two occasions,

with approval by the police chief, Thurston and Carey used police

stationery in releasing information about the fund. Those

communiques were released on July 13, 1995 and September 1, 1995,

respectively. The first communication was distributed more than

two weeks after appellant's arrest and one week after his bond

hearing. The communications did not name appellant or Turner.

The releases discussed the purpose and status of the fund and

explained how to make a contribution.
Officer Carey corroborated Thurston's testimony. He noted

that the police chief allowed Thurston and him to wear their

uniforms when they initially announced the creation of the fund.

Carey explained that they "announced that [Thurston] and myself

were co-chairmen and founders of the scholarship fund and it was

an effort we were undertaking as two individuals." Carey

testified that approximately 1,800 posters and 11,000 handbills

were distributed publicizing the fund. In October 1995, a golf

tournament was held to help supplement the scholarship fund.

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Carey said that approximately 1,000 handbills were printed for

the tournament. Carey recalled that, during the initial

announcement of the fund, he and Thurston made clear that "it was

an effort we were undertaking as two individuals." Carey

identified stationery bearing the following letterhead:
The
Jennifer Lea Evans
MEMORIAL SCHOLARSHIP FUND
of Hampton Roads

Benefiting Emory University
Carey averred that stationery bearing that letterhead was "used

whenever we wrote about the scholarship fund." According to

Carey, "we made a conscious effort to do it off duty," and

"ninety-nine percent of it [work on the fund] was done on our own

time." Carey said that he personally delivered fund

contributions totalling over $16,000 directly to Emory

University.

Discussion

Because of the creation of and participation in the fund by

Thurston and Carey, appellant sought one of two remedies: (1)

disqualification of the Commonwealth's Attorney's office and

appointment of a special prosecutor; or (2) a change of venue.

Mindful of appellant's right "to a fair trial and . . . due

process," the trial judge found no conflict of interest by the

Commonwealth's Attorney or police investigators affecting

appellant's rights. Finding that some citizens may have believed

that Thurston and Carey "were acting in some type of official

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capacity," the trial judge found the officers had no interest in

the outcome of appellant's case.

In Lux v. Commonwealth, 24 Va. App. 561, 568, 484 S.E.2d

145, 148 (1997) (citations omitted), we stated:
In order to protect prosecutorial
impartiality, a trial court has the power to
disqualify a Commonwealth's attorney from
proceeding with a particular criminal
prosecution if the trial court determines
that the Commonwealth's attorney has an
interest pertinent to a defendant's case that
may conflict with the Commonwealth's
attorney's official duties.

"[T]he decision to disqualify an entire Commonwealth's

Attorney's office is committed to the exercise of the trial

court's discretion . . . ." Id. at 575, 484 S.E.2d at 152

(addressing situations where criminal defendant's former counsel

is hired as prosecutor and explaining under what circumstances

entire prosecutor's office must be disqualified; refusing to

apply per se rule of disqualification).

The issue of whether to disqualify a Commonwealth's attorney

in a case generally arises in one of two situations:
"[T]he first is where the prosecutor has had
some attorney-client relationship with the
parties involved whereby he obtained
privileged information that may be adverse to
the defendant's interest in regard to the
pending criminal charges. . . . A second
[situation] is where the prosecutor has some
direct personal interest arising from
animosity, a financial interest, kinship, or
close friendship such that his objectivity
and impartiality are called into question."

Id. at 569, 484 S.E.2d at 149 (citation omitted).

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 Although some citizens may have believed that the fund was

sponsored by the police, the evidence established that Carey and

Thurston acted in their individual capacities to establish the

scholarship fund. The fund was not intended to and did not

benefit the police officers, the victim's family, or the

Commonwealth's Attorney's office. No evidence showed that the

Commonwealth's Attorney or staff sanctioned or sponsored the

scholarship fund. All proceeds of the fund went directly to

Emory University, where the victim had attended college.
Moreover, by taking annual leave to promote the fund and

assigning administrative tasks to private citizens, the officers

tried to insulate the fund from having the appearance of being a

police-sponsored project. The fund announcements did not make

references to the alleged perpetrators. The prosecutor's staff

was not involved in the fund. Moreover, Carey and Thurston were

not involved in investigating the crime or in collecting

evidence.

Appellant did not produce any evidence of misconduct, bias,

or conflict of interest by the Commonwealth's Attorney's Office

that interfered with appellant receiving a fair trial. Compare

Frye v. Commonwealth, 231 Va. 370, 380, 345 S.E.2d 267, 275

(1986) (finding no conflict of interest and refusing to

disqualify prosecutor who was former director of bank where

victim's wife employed), with Cantrell v. Commonwealth, 229 Va.

387, 393, 329 S.E.2d 22, 26 (1985) (finding conflict of interest

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where victim's family hired a private attorney to institute a

civil suit and court designated same attorney to act as a special

prosecutor to assist the Commonwealth's attorney in Cantrell's

criminal prosecution).

The activities of Thurston and Carey did not benefit or

otherwise affect the police department or the prosecutor's

office. Appellant failed to show any involvement in the fund by

anyone in the Commonwealth's Attorney's office. Absent evidence

suggesting a conflict of interest, the trial judge did not abuse

her discretion in refusing to disqualify the entire

Commonwealth's Attorney's office.
The trial judge found appellant's change of venue argument

to be premature. It will be addressed in Part IV, infra.

II. MOTION TO DISQUALIFY ENTIRE VENIRE

Following pretrial motions, two panels of prospective jurors

were brought into the courtroom. The trial judge excused one

panel of twenty-four members and directed them to return the next

day. The other panel, also consisting of twenty-four members,

was sworn and introduced. On voir dire, the trial judge asked
preliminary questions, after which the attorneys were permitted

to pose additional questions.

During voir dire, Cynthia Bishop, the third member of the

first panel to be individually questioned, indicated she knew a

great deal about the case from the media, and she felt that

appellant and Turner were "both guilty." The following exchange

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occurred:
[Defense Counsel]: Do you know whether any
of the people on the jury panel have strong
opinions from what you've heard them say
before you came in the courtroom?

MRS. BISHOP: Yes.

[Defense Counsel]: Could you tell me what
you know about that.

MRS. BISHOP: Most of them feel pretty
strongly about it. A lot of them -- the
women in particular -- they have daughters
the age and so forth.
[Defense Counsel]: All right. And is that
-- and I'm not suggesting you've done
anything wrong because nobody told you you
couldn't talk about things until you got into
the jury selection process.

MRS. BISHOP: It was prior.

[Defense Counsel]: That's quite all right,
but what we need to know is before you came
up here, did you have a sense that this was
the case you would be on?

MRS. BISHOP: I was hoping it wouldn't be.

[Defense Counsel]: I understand, and again
we take no offense about that; but was there
discussion or conversation amongst the
prospective jurors?

MRS. BISHOP: Everyone.

[Defense Counsel]: And was most everybody
saying they thought the people were guilty
because of what they had seen and heard?

MRS. BISHOP: Right.

[Defense Counsel]: And do you recognize from
the people you've seen up here today a number
of the same people that you heard talking
about it downstairs?

MRS. BISHOP: Yes.

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 [Defense Counsel]: All right. And would you
agree that this feeling that you have
discerned today is probably the same out in
the community where you live?

MRS. BISHOP: Yes.

[Defense Counsel]: It's been discussed out
there?

(Mrs. Bishop nodded affirmatively)[.]

The trial judge struck Bishop for cause. Based on Bishop's

assertion that the prospective jurors had discussed the case,

defense counsel moved "for a mistrial on the grounds that the

jury panel has been tainted and infected by preselection

discussions which have rendered them incapable of being fair; and

I think that it's indicative of the problem we have which is

we're in a venue where I don't think we can get a fair trial."
Noting that Bishop was only the third potential juror to be

individually questioned, the trial judge deferred ruling on the

motion until additional panel members were questioned in order to

corroborate or dispel Bishop's assertion. After the trial judge

questioned whether a mistrial motion was valid before a jury was

sworn, defense counsel moved "to discharge the jury and reimpanel

another."

Juror Bishop was the third of sixty jurors individually

questioned. When appellant initially moved for a new venire

based on Bishop's claims of juror prejudice, the trial judge

deferred ruling until "we get a little bit further into"

questioning the jurors.

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 Fifty-seven potential jurors were brought into court and

examined after Bishop was excused. Defense counsel did not ask

each of the fifty-seven prospective jurors individually whether

he or she had heard discussions about the case among the venire

panel members. Instead, he asked only a few prospective jurors

if they heard the case discussed by prospective jurors. 1 Of the

jurors who were asked, all denied that discussions occurred.

Moreover, other than Bishop, no jurors, including those struck

for cause, indicated they were affected by comments or statements

made by someone discussing the case in their presence.
Because the jury had not been sworn, trial had not

commenced, jeopardy had not attached, and no mistrial could be

declared. Therefore, appellant's remedy lay in disqualifying the

entire jury venire. Whether to disqualify an entire venire is a

matter committed to the sound discretion of the trial judge. See

Mueller v. Commonwealth, 244 Va. 386, 403-04, 422 S.E.2d 380, 391

(1992). Despite the number of potential jurors individually

examined after Bishop, no evidence corroborated Bishop's

allegation that the prospective jurors discussed appellant's

guilt. See id. at 403, 422 S.E.2d at 391 (noting lack of

evidence that venire was tainted). Absent such evidence, the

trial judge did not abuse her discretion in refusing to
1
The record indicates that only five of the twenty-seven
female prospective jurors to follow Bishop were specifically
asked whether the case was earlier discussed by female members of
the venire. Those panel members included jurors Edgell, Garrett,
Headspeth, Perron and Garringer.

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disqualify the entire venire.

III. MOTIONS TO STRIKE JURORS FOR CAUSE

An accused is constitutionally guaranteed the right to trial

by an impartial jury. See U.S. Const. amends. VI, XIV; Va.

Const. art. I § 8; see also Code § 8.01-358; Rule 3A:14. "Trial

courts, as the guardians of this fundamental right, have the duty

to procure an impartial jury," a responsibility primarily

discharged "through meaningful voir dire." Griffin v.
Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995).

"[T]he test of impartiality is whether the venireperson can lay

aside . . . preconceived views and render a verdict based solely

on the law and evidence presented at trial." Id. "A juror who

holds 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, 212, 397

S.E.2d 408, 410 (1990) (emphasis added). "[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." Barnabei v. Commonwealth, 252 Va. 161, 173, 477 S.E.2d

270, 277 (1996) (citation omitted), cert. denied, 117 S. Ct. 1724

(1997). Reasonable doubt that a juror possesses the ability to

render fair and impartial service must be resolved in favor of

the accused. See Breeden v. Commonwealth, 217 Va. 297, 298, 227

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S.E.2d 734, 735 (1976).

Prospective jurors need not "be totally ignorant of the

facts and issues involved in a case." Pope v. Commonwealth, 234

Va. 114, 124, 360 S.E.2d 352, 358 (1987). It is sufficient that

they can set aside any impression or opinion and decide the case

solely on the evidence presented at trial. See id.

"The partiality or impartiality of an individual juror is a

factual issue best determined by the trial court." Watkins v.
Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985). On

appeal, "we 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.'" Eaton v. Commonwealth,

240 Va. 236, 246, 397 S.E.2d 385, 391 (1990) (quoting Wainwright

v. Witt, 469 U.S. 412, 426 (1985)). Thus, we will not disturb

the trial court's decision "absent a showing of 'manifest

error.'" Id. (quoting Spencer v. Commonwealth, 240 Va. 78, 94,

393 S.E.2d 609, 619, (1990)). See also Weeks v. Commonwealth,

248 Va. 460, 475, 450 S.E.2d 379, 389 (1994).
Juror Evans

During individual voir dire, Timothy Evans indicated that he

was aware of the case from media reports. The following exchange

took place:
[Defense Counsel]: [C]an you tell us from
what you've heard or read what your -- what
you know or believe you may know about the
case in terms of facts or background . . . .

MR. EVANS: Right. That's hard to say,
I -- Of course, you tend to draw some

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opinions. I can't really say. I'll be
honest with you. I cannot really say.

[Defense Counsel]: With respect to the
opinions that you feel you may have drawn
from what you've read or heard, can you share
those with us or what, if any, that you have.

MR. EVANS: No. I really don't to be honest
with you.

[Defense Counsel]: Do you have some opinions
that you have formed about the matter or the
case or any aspects of the case?

MR. EVANS: Well, I guess the one opinion I
do have is that since I read in the paper
that there was an admission that the crime
had occurred, that they had done it. They
meaning I don't know which.
[Defense Counsel]: All right. And I don't
want to -- I'm not trying to put anything in
your mouth, but are you saying that at least
from what you've read and heard you have
formed an opinion that because there had been
some confession to something that the men who
are involved are guilty?

MR. EVANS: I'm not sure about that. I'm not
sure about it. Opinions aren't facts.

[Defense Counsel]: I understand that.

MR. EVANS: You tend to get that inclination
when you first read it. Yes.

[Defense Counsel]: All right. And do you
think that depending on what you hear in this
case your prior knowledge and opinions about
the admissions of people involved might
affect the way you view the case?

MR. EVANS: No. I don't think so.

[Defense Counsel]: Now, having -- Do you
acknowledge that you have formed some
tentative opinion about the case based on
what you've read.

MR. EVANS: Yes.

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 Upon further questioning, Evans assured defense counsel that

he could lay aside everything he heard or read through the media,

determine appellant's guilt or innocence based solely on the

evidence presented at trial, and give appellant a fair and

impartial trial.

The prosecutor then asked Evans to explain his statement

regarding facts and opinions. Evans responded as follows: "I

form opinions all the time both in business and in personal life.

Facts can either change my opinions or confirm my opinions. I

recognize them as opinions." Evans avouched that he was "very

confident" he could set aside any preconceived opinions and base

his decision on the facts presented at trial. Following argument

on whether to strike Evans for cause, the trial judge denied the

motion.
It is not required . . . that the jurors be
totally ignorant of the facts and issues
involved. 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 opinions 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) (emphasis added).

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 Despite Evans' acknowledgment that he had formed an initial

impression upon reading news accounts, viewing the totality of

Evans' voir dire testimony, we find no manifest error in seating

him. Following defense counsel's intense and thorough voir dire,

Evans provided, in his own words, an explanation that evidentiary

facts can confirm or dispel initial opinions. Furthermore, he

unequivocally expressed confidence in his ability to set aside

any initial impressions and decide the case on the facts

presented at trial.
Juror Johnson

During the preliminary group questioning of the venire

panel, defense counsel asked whether appellant's arrest and

prosecution, by itself, would affect the jurors' impartiality.

He then asked, "[D]o you feel just because [defendant] is here,

he must have done something wrong, and that might affect your

view of this case?" Donald Johnson responded, "You can put me

down for that one." Later, defense counsel asked members of the

group to indicate preliminarily if they might have a problem with

the credibility of people who initially give a false statement to

police and later profess to give a true account. Johnson

indicated that he might be affected.

During individual voir dire the following day, defense
counsel inquired into Johnson's earlier responses. The following

colloquy occurred:
MR. JOHNSON: If I did raise my hand on that
[question], it would be more like if he's
arrested for it, there's some reason he got

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 arrested for it. It's -- you know -- I
didn't get arrested for it.

[Defense Counsel]: I understand. And what I
was trying to understand from your answer to
that question was whether the fact that he
has been charged and is on trial, would that
alone give you some feeling or belief that he
might be guilty just because he's been
charged?

MR. JOHNSON: If I raised my hand to that one
yesterday -- which I'm not sure -- I do not
believe that.

[Defense Counsel]: All right.
MR. JOHNSON: I do not believe that way.

[Defense Counsel]: All right. Now, I also
believe that you had indicated I thought -- I
asked this question. That the defendant is
charged with the alleged crimes of murder,
abduction, attempt to rape and sexual
penetration with object. Do any of you have
any feelings or opinions about the alleged
crimes themselves -- these crimes -- which
would prevent you from giving the defendant a
fair trial on the charges against him? Again
I had a note. I thought you had indicated
that you --

MR. JOHNSON: If I raised my hand, it was
that I have feelings about those crimes but
whether or not I could give him a fair trial
is another issue. I think I can. I just
think those crimes are very heinous.

Johnson continued to aver that he could be fair and

impartial. As to the effect of possible false statements made by

appellant to police, the following exchange took place:
[Defense Counsel]: All right. Well, when
you were asked yesterday if you had any
feelings or opinions which caused you to
believe that just because someone at some
point has lied to the police about a matter
under investigation that nothing that that
person says concerning the investigation can

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 ever be believed, I'm just trying to
understand. I thought you raised your hand.

MR. JOHNSON: That is probably true except
for as evidence dictates. I mean if the
evidence dictates they are telling the truth,
then you have to believe it; but I would say
on their face value, on their word I would
have a hard time believing them again.

[Defense Counsel]: All right. So would it
be a fair characterization to say that at
least as we start the trial you have a
preconceived notion about someone who has
lied to the police that would make it hard
for you to accept anything else they said to
them as being true?
MR. JOHNSON: I guess yeah, you would have to
say that because if they lied once, they have
something to hide.

Johnson admitted that, if the evidence proved that appellant

lied to the police once, he would have difficulty believing

appellant's subsequent statements. However, when asked if it

would be difficult for him to be objective and impartial and

render a fair verdict, Johnson said it would not. According to

Johnson, if appellant is "saying something I would have to

balance that against the evidence in the case. It's not that I'm

just going to take his word for it. I would have to verify what

he's telling me according to the evidence presented."

Johnson assured counsel he could base his decision on the

facts presented at trial and could be fair and impartial.

Johnson also said he had not heard enough about the case to form

a preconceived opinion about it. Defense counsel moved to strike

Johnson for cause. In denying the motion, the trial judge

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provided the following explanation:
I listened very carefully as we had him
listed, I had him listed, you had him listed
and I think both listed for his answers; and
I listened very carefully to his
explanations, and I watched the way he sat, I
watched the way he looked, I watched his
mannerisms. We all make up these questions,
and we know what we're talking about; and you
take a group of people that come into a room
they've never been in before with people
watching them, and you ask them questions
that are compound questions that have legal
terms in them that are stilted. They're not
in everyday language, and you get a whole
group of people sitting there; and the next
thing you know you have hands up. He had
reasonable and plausible explanations for why
he said what he said; and he didn't say
anything yesterday. We got shows of hands on
questions; and I'm satisfied with his
answers; and to be honest with you, going
into it I wasn't sure I was going to be
satisfied with his answers. I listened to
his answers, and I was satisfied with them;
and as far as any preconceived idea, I wrote
down some notes about what he said; and when
you asked him about changing statements, he
said that a person could lie and then a
person could tell the truth, and he could
certainly if the evidence shows that, he
believes that could happen, that he would
have -- that if he knew somebody lied, he
would have a hard time believing they were
telling the truth the next time; but that
would depend on the evidence, which -- and I
pulled the jury instructions to look at the
instructions on credibility of the defendant;
and certainly if there is evidence in the
trial that the defendant made a prior
inconsistent statement, that is something you
can certainly take into account along with
the other evidence which is what he said he
would do in judging the credibility of the
witness; and that's what the instructions
say.

Johnson's responses during individual voir dire differed

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from his initial responses the preceding day during group

questioning. However, Johnson adequately explained in detail

that some of his responses to questions propounded to the group

did not accurately reflect his views. Based upon the entirety of

Johnson's voir dire, including Johnson's explanations and the

trial judge's observations of Johnson's demeanor, we find no

manifest error in seating him.

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 Juror Roache

During individual voir dire, Holly Roache denied having

formed any preconceived opinions about appellant's guilt. The

following dialogue then occurred:
[Defense Counsel]: Is there any hesitation
on your part about that? In other words, do
you think you might have some feelings that
are coming out on this?

MS. ROACHE: I feel like I could be open as
far as trying to formulate an opinion.

[Defense Counsel]: All right. Do you think
this defendant is guilty of something?
MS. ROACHE: It's very possible. Yes.

[Defense Counsel]: Is that because of what
you've read in the paper or what you've seen
on television?

MS. ROACHE: From the reports. Uh-huh.

* * * * * * *

[Defense Counsel]: Would you agree that
because you have told me -- quite honestly
-- that it is very possible that this
defendant is guilty based on what you have
read and seen, that that feeling that you
have might affect your ability to be totally
fair and impartial in viewing the case if you
were a juror?

MS. ROACHE: I'd have to say no because I
know that everything that's reported or
printed is not always accurate.

[Defense Counsel]: And why is it that you
feel that he's very possibly -- or I think
you said it's very possible that he is
guilty?

MS. ROACHE: You said guilty of something?

[Defense Counsel]: Yes, of something. I'm
sorry. Yes. Pardon me. You're exactly

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 right.

MS. ROACHE: You indicate of what.

[Defense Counsel]: Well is there something
specific that you feel he's very possibly
guilty of?

MS. ROACHE: No. I guess it was just the way
you formulated the question.

[Defense Counsel]: Well, what I'm trying to
understand now is -- because I still have the
sense there may be something bothering you;
and when you said to me it's very possible
he's guilty of something, that's based on
what you've read and heard?
MS. ROACHE: Actually I guess what sticks in
my mind is yesterday during the summation,
there was mentioned about alcohol. So that's
what's kind of sticking in my mind.

[Defense Counsel]: And what is it about
alcohol.

MS. ROACHE: Oh. I mean not that I have
anything against it, but because it was
stated that he had been drinking a lot, since
that was stated as a fact, then I mean he
could be guilty of being drunk.

[Defense Counsel]: All right. That's true.
What I'm really interested in is he's
charged with murder and abduction and
attempted rape and penetration -- sexual
object penetration of Ms. Evans; and based on
what you've read or what you've heard and
what you know about the case from what you
may have been exposed to outside the
courtroom, do you feel that it's very
possible that he could be guilty of one of
those charges that he's on trial for here
today?

MS. ROACHE: I really don't know because I
haven't heard the evidence.

Defense counsel moved to strike Roache for cause because of

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her response that appellant might be guilty of something and

because of Roache's "demeanor." In overruling the motion, the

trial judge noted that she paid close attention to Roache because

Roache appeared shy and tentative in her responses. The trial

judge explained:
Her voice -- she was very soft-spoken, and my
initial reaction to her being shy I don't
think changed. I believe she was truthful
from the other signs I watched; and I
-- We're making record here. My
interpretation was she was just shy and
soft-spoken. I listened to the answers, but
I did watch her because I noticed it as soon
as she walked in just the tentativeness.
As far as her answer, that sent a red
flag up too; and then when I listened to her
go on with the answer and even answer your
follow-up questions the many times you
mentioned, You seemed reluctant. Is there
anything? I mean you said it in a
nonthreatening manner. When [the prosecutor]
got up, he asked in a nonthreatening manner.
She explained why she said what she said.

Appellant points to Roache's explanation that she felt

appellant might be guilty of something, such as being drunk. As

noted earlier, it is not uncommon or improper for jurors to form

"some impression or opinions" as to the merits of a case or to

have a "preconceived notion as to the guilt or innocence of an

accused" based on pretrial publicity. See Dowd, 366 U.S. at

722-23. Thus, the mere fact that Roache may have entertained an

opinion based on news reports does not disqualify her from

serving on the jury. After extensive questioning by defense

counsel, Roache unequivocally avouched that she could fairly and

objectively judge appellant based on the evidence presented at

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trial and lay aside any preconceived opinions.

Moreover, during group questioning of the panel members,

defense counsel remarked that "the evidence in this case will

also disclose at a certain time under examination in this case

that the defendant, Billy Brown, was heavily intoxicated." Based

on counsel's representation of appellant's heavy alcohol

consumption, Roache could have reasonably believed that appellant

may have been guilty of being drunk in public. See Code
§ 18.2-388 (making it a Class 4 misdemeanor to be intoxicated in

public).

Based upon the entirety of Roache's voir dire, including the

trial judge's expressed observations of Roache's demeanor and

responses, we find no manifest error in seating her.

The trial judge had the opportunity to observe each juror's

demeanor when evaluating responses to counsel's questions and the

court's instructions. Considering the voir dire as a whole,

including the first-hand observations made by the trial judge,

who closely scrutinized the jurors' responses, the record

demonstrates that the challenged jurors could lay aside any

preconceived views or opinions and render a verdict based solely

on the evidence presented at trial. Therefore, we cannot say the

trial judge committed manifest error in seating them.

Accordingly, the trial judge did not abuse her discretion in

refusing to strike these jurors for cause.

IV. MOTION FOR CHANGE OF VENUE

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 "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." 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 certainty, prevent a
fair trial. Whether to grant a motion for a
change of venue is a matter of judicial
discretion, and we will reverse the decision
of the trial judge only for an abuse of that
discretion.

Chandler v. Commonwealth, 249 Va. 270, 275, 455 S.E.2d 219, 222

(1995) (citations omitted). "'[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)

(refusing to presume unfairness because of extensive publicity

absent "trial atmosphere . . . utterly corrupted by press

coverage")). "A significant factor in determining whether a

change of venue is warranted is whether the media reports are

factual and accurate." Mueller, 244 Va. at 398, 422 S.E.2d at

388.

After interviewing a total of sixty potential jurors, a

panel of twenty-four prospective jurors was assembled. Appellant

renewed his argument for a change of venue, and the trial judge

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denied it.

The trial judge struck thirty-six members of the venire for

cause. The trial judge allowed defense counsel wide latitude to

individually and extensively question the prospective jurors

during a four day period.

The record discloses that thirteen of the thirty-six

venirepersons who were stricken for cause were stricken solely

because they had formed an opinion based on pretrial publicity.

Nine additional members were stricken because they could not be

impartial based on pretrial publicity and because of some other

reason. 2 The other fourteen stricken jurors were dismissed for

reasons unrelated to the publicity. 3 She listened to the jurors'

responses and unhesitatingly struck all who equivocated or whose
2
The additional reasons affecting their impartiality
included having one or more daughters close to the age of the
victim, having a family member or good friend who was sexually
assaulted, frequenting the bar where the victim was last seen and
knowing the employees, having sympathy for the victim's family,
knowing some witnesses, and knowing about past scandals involving
the Navy.
3
The reasons included the following: the belief that
appellant was possibly guilty because SEAL training made him
capable of inflicting the death blow; beliefs regarding
reputations of SEALS and their boisterous lifestyle; counsel
argued about seating the juror in front of the prospective juror;
the inability to believe someone who lied to the police; a moral
dislike of people who drink to excess; the inability to
understand English fluently; the inability to be fair due to
close business affiliation with the Navy; business/job
considerations, namely, scheduled trips that would negatively
affect business; the heinousness of the crime; feelings of
sympathy for the victim and/or her family; the feeling upon first
seeing appellant that he appeared to be guilty; relating too
closely with victim in age and conduct; working in jail where
codefendant incarcerated.

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answers hinted an inability to be impartial.

In denying counsel's motion for a change of venue, the trial

judge explained:
I think we have gotten a jury that is a fair
cross section of the community. . . . I hate
to quote a number. There were at least
several people on there who said they had
heard nothing about the case. We had varying
degrees. I believe one of the panel members
today said that their knowledge had been
minuscule.
I'm not going to go back through my
notes and cite everything. Suffice it to
say, I think we have selected a fair cross
section that can be fair both to the
Commonwealth and to the defendant.

Of the sixty members of the venire, twenty-four acknowledged

an awareness of the memorial scholarship fund. No one had

contributed to the fund or was affiliated with businesses or

organizations involved with it.

The June 1995 murder of a vacationing traveler by a sailor

resulted in a great deal of publicity in an area abounding with

tourists and naval personnel. However, the trial commenced

eleven months after the murder, thus lessening the impact from

the initial intense media coverage. In fact, many of the

prospective jurors indicated that they learned about the crimes

through media reports at the time of the crimes. A large number

also indicated only a general knowledge of the crimes, lacking

much detail. Moreover, appellant never alleged that the media

accounts were factually inaccurate.

The trial judge allowed defense counsel wide latitude in

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questioning potential jurors in order to find bias. To that end,

defense counsel posed approximately twenty-five questions to the

venire as a group. Later, the trial judge noted that defense

counsel has "a list of some thirty-seven questions here that

you're asking each one of these jurors" individually. Some of

the questions confused the jurors, lengthened the voir dire

process, and made it more difficult to identify impartial

witnesses. 4
Summary

Thirteen of the sixty venirepersons, or twenty-two percent,

evinced bias or partiality based solely on publicity. Nine

additional venirepersons evinced an inability to be impartial

based on pretrial publicity in conjunction with some other

reason. Therefore, only twenty-two members of the entire venire

of sixty members, or thirty-seven percent, were struck because of

some sort of pretrial publicity. Based on the nature of the case

and the broad latitude allowed in questioning venire members, the

record does not affirmatively demonstrate that the pretrial

publicity in this case prejudiced appellant and prevented him

from receiving a fair trial. See Mueller, 244 Va. at 398-99, 422

4
For example, defense counsel advised prospective jurors
that appellant told inconsistent stories to the police, and he
asked whether this inconsistency might affect their ability to
believe later statements appellant made to police. Such a
question would and did elicit doubts from prospective jurors.
These doubts, however, relate to juror responsibility in
assessing witness credibility and do not disclose or evince
impartiality or bias.

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S.E.2d at 388-89 (finding no error in denying motion to change

venue where forty-seven prospective jurors examined before

getting impartial panel; despite extensive publicity, defendant

made no claim that media reports were inaccurate); Buchanan v.

Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757, 768 (1989)

(finding no error in refusal to change venue where there was

extensive publicity and where thirty-six jurors questioned before

getting panel of twenty); Briley v. Commonwealth, 221 Va. 563,

570, 273 S.E.2d 57, 61 (1980) (finding no error in refusing to

grant motion for change of venue where "[i]t was necessary to

examine only forty-six individuals of fifty-two summonsed to

obtain" impartial jury panel). Therefore, the trial judge did

not abuse her discretion in denying appellant's motion for a

change of venue.
For the reasons stated, we affirm the convictions of the

trial court.

Affirmed.

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