Thomas Langston v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
THOMAS LANGSTON
v. Record No. 1946-94-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA MARCH 12, 1996
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
H. Lee Townsend, III (Townsend & Bloom,
P.L.L.C., on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Thomas Langston (appellant) was convicted of attempted rape,
attempted sodomy, and willful injury to a correctional facility
employee in a jury trial. On appeal, appellant contends that the
trial court erred in (1) refusing to remove jurors Fields,
Powell, Mason and Manning for cause, and (2) refusing to give the
jury his proffered consent instruction. Finding no error, we
affirm.
I. FACTS
On March 17, 1993, Linda Coleman, a correctional officer at
Greensville Correctional Center (GCC), went to the visiting room
to get a soda. She saw appellant, an inmate, in the room and
thought it unusual for him to be there. She went to press the
intercom button to report him, but appellant, from behind,
dragged her into the men's rest room.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In the rest room, appellant sat on Coleman's stomach and
told her that he was going to sodomize her. Coleman began to hit
appellant with her fists. Appellant then said he was going to
have sexual intercourse with her. Coleman fought again.
Appellant tried to remove Coleman's pants and she struggled with
him. Coleman grabbed appellant's genitals and wrung them.
Appellant jumped off of her. He told her to kiss him and she
refused. Appellant left the rest room and told Coleman that if
she told anyone what happened, he would say that she had "come
on" to him.
Coleman was treated for wounds to her lips, gums, and arm.
She suffered high blood pressure, which caused a mild stroke in
her eye, and she missed five months from work. Appellant
suffered scratches to his face during the attack.
II. Exclusion of Jurors for Cause
During voir dire, juror Fields stated that he was acquainted
with Coleman. Fields had purchased a car from a dealership where
Coleman had worked. Fields stated that these contacts would not
influence his fairness or impartiality to serve on the jury.
The fact that juror Fields was acquainted with Coleman was
not a basis for his exclusion for cause. Neither was the fact
that Fields purchased a car from a dealership where Coleman had
worked, there being nothing in the record to show that Coleman
had anything to do with the transaction. The trial court found
Fields to be impartial and free from prejudice. We find no error
in this holding.
On brief, appellant argues that Fields should have been
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removed from the jury because he previously had been represented
by the prosecutor in the case. However, appellant did not make
this argument in the trial court and thus is barred by Rule 5A:18
from raising the issue for the first time on appeal. See Jacques
v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991).
The record indicates that juror Powell was employed by the
Greensville Correctional Center and knew Coleman only on a
speaking basis. Juror Powell stated that these facts would in no
way influence her in her decision. The trial court found Powell
to be impartial and we find no error in this decision.
Juror Mason stated that she knew the victim through her
employment at Greensville Correctional Center. They did not
socialize or visit each other's homes. Mason ran a store, and
the victim, Linda Coleman, was a customer of the store. She
stated that these relationships would not influence her fairness
and impartiality in the case. The trial court refused to strike
Mason for cause. We find no error in this decision.
Juror Manning stated that she had heard about the incident
from her son, who works at Greensville Correctional Center, but
she did not recall the details of the conversation. She stated
that what she heard would not influence her fairness and
impartiality. The trial court refused to strike Manning for
cause. We find no error in this decision.
At trial, appellant asked the trial court to excuse jurors
Fields, Powell, Mason and Manning for cause because
"they have family or know somebody that works at Greensville or
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knows somebody that knows somebody that works at Greensville or
have direct contact with this officer here."
Per se presumptions of juror bias are not favored in
Virginia. See Webb v. Commonwealth, 11 Va. App. 220, 222, 397
S.E.2d 539, 540 (1990). The grounds for automatic
disqualifications are few. 1 Employment by a juror at the
correctional facility where the accused is an inmate charged with
a crime against a correctional officer does not require automatic
disqualification of the juror. See Williams v. Commonwealth, 21
Va. App. ___, ___, ___ S.E.2d ___, ___ (1996) (en banc). Absent
the existence of a per se basis for exclusion, rulings on the
qualifications of jurors are committed to the sound discretion of
the trial court. Barker v. Commonwealth, 230 Va. 370, 375, 337
S.E.2d 729, 733 (1985).
An appellate court must defer to the trial court's decision
"to exclude or retain prospective jurors" because the trial court
has observed the jurors "and is in a better position" than the
appellate court to determine if a juror's performance would be
impaired. Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d
394, 402, cert. denied, 114 S. Ct. 143 (1993). "Accordingly, a
trial court's decision on these issues will not be reversed on
appeal without a showing of 'manifest error.'" Id. (quoting
1
See Barker v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d
729, 733 (1985) (automatic disqualification required based on
juror's knowledge that defendant previously had been convicted
for same offense for which he was being retried); Gray v.
Commonwealth, 226 Va. 591, 593, 311 S.E.2d 409, 410 (1984)
(automatic disqualification required based on juror's kinship to
victim in case); Salina v. Commonwealth, 217 Va. 92, 93, 225
S.E.2d 199, 200 (1976) (automatic disqualification required based
on juror's stockholding in victim bank).
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Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391
(1990), cert. denied, 502 U.S. 824 (1991)). See also Weeks v.
Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert.
denied, 116 S. Ct. 100 (1995).
Furthermore, prospective jurors need not be totally ignorant
of the facts and issues involved in a case. It is sufficient
that they can set aside any impression or opinion and decide the
case solely on the evidence presented at trial. Pope v.
Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 (1987), cert.
denied, 485 U.S. 1015 (1988). In denying appellant's challenge
to the jurors, the court stated that, based on the voir dire, the
court believed that the jurors in question could "take the oath"
of a juror and "act accordingly," if selected for jury service.
On this record, and giving due deference to the trial court's
observations and beliefs, we cannot say that the court committed
manifest error in denying appellant's requested strikes for
cause.
III. Consent Instruction
Appellant also contends that the court erred in refusing his
proffered consent instruction. Although the Commonwealth
prevailed in the trial court, we must review the evidence
relevant to appellant's refused instruction in the light most
favorable to him. Martin v. Commonwealth, 13 Va. App. 524, 526,
414 S.E.2d 401, 401 (1992) (en banc).
An accused, however, "is entitled to have the jury
instructed only on those theories of the case that are supported
by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d
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267, 280 (1986). "The evidence relied on to support a proffered
instruction must amount to 'more than a scintilla.'" Morse v.
Commonwealth, 17 Va. App. 627, 633, 440 S.E.2d 145, 149 (1994)
(quoting Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d
756, 758 (1978)). An instruction inapplicable to the facts and
circumstances of the case should not be given. Hubbard v.
Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992).
Inmate Kenneth Jackson testified on behalf of appellant that
he heard appellant talking to Officer Coleman in the snack area.
Appellant came to him and asked him for one hundred dollars cash
"because he needed it because him and Ms. Coleman was supposed to
meet in the bathroom. So, I gave him the money. That's all I
know." Jackson said it was supposed to be money for sex. He
explained that the scratches on appellant's face and mouth
occurred while he and appellant were "horse playing."
Appellant testified that he procured the money from Jackson
before he had spoken to Ms. Coleman about sex because he knew her
reputation. He described the incident as follows:
I was waving to her and she looked. She
noticed me. She came out. There's a door
right here and she came out of the control
booth and left the other officer there. She
came to this door and popped it and we
talked. At that point, I had some money on
me and flashed it at her and stated to her
what I wanted to do with the money. I mean,
I didn't have to put into exact words because
I know and she knows what's up.
After we got that straight. She told me
to hold on, I'll be right back. She shut the
door and went back in the booth. So, I
waited and waited. She come back out the
door about five minutes later she come out
and come on back there to where I was in the
bathroom. Now, we're in the bathroom and I
gave her the money that we had agreed on, a
fifty-dollar bill, two twentys and a
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ten. . . . She says to me, hold on, I got to
go check because some inmates was in the
visiting room. . . . She's talking about
going and checking and I says, no, I done
gave you my money so you just give me my
money back and I'll leave. . . .
When she tried to leave out the
bathroom, I grabbed her hand that she had my
money in, that she had already took. I took
the money back and opened the door and left
and when I left the bathroom, she was still
in the bathroom. . . .
Appellant presented no evidence that there was any attempt made
to perform any sexual acts.
Under these facts, appellant contends that the trial court
erred in refusing to give his proffered consent instruction. We
find no evidence in the record to support the giving of a consent
instruction.
The issues raised by the Commonwealth's evidence are simple
ones; namely, whether appellant was guilty of attempted rape,
attempted sodomy, bodily injury, and willful injury to a
correctional facility employee. Appellant denies that he did
these things. His evidence does not suggest that the offenses
with which he was charged were commenced, much less completed.
His evidence does not show that he touched the correctional
officer in order to have consensual sex. According to
appellant's testimony, as soon as he handed Coleman one hundred
dollars, she said she had to leave to check her post.
Appellant's only acts toward the victim, according to him, were
his attempts to retrieve his money from her hand. Under
appellant's theory of the case, no sexual overtures or touching
occurred. The trial court did not err in refusing a consent
instruction because there was no evidence to support it.
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Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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BENTON, J., dissenting.
For the reasons stated in the dissenting opinion to Williams
v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
(1996) (Elder, J., and Benton, J., dissenting), I would hold that
the two jurors who were employed in the penitentiary were
disqualified from the jury because Langston was being tried for
an offense, willful injury to a correctional facility employee in
violation of Code § 18.2-55, that was unique in its protection of
correctional facility employees. See Williams v. Commonwealth,
19 Va. App. 600, 453 S.E.2d 575 (1995), rev'd en banc, ___ Va.
App. ___, ___ S.E.2d ___ (1996).
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