Bill Lewis Odom, Jr. v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
BILL LEWIS ODOM, JR.
MEMORANDUM OPINION * BY
v. Record No. 0681-99-2 JUDGE NELSON T. OVERTON
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(Cary B. Bowen; Bowen, Bryant, Champlin &
Carr, on brief), for appellant. Appellant
submitting on brief.
(Mark L. Earley, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
Appellant was convicted of petit larceny, third offense. On
appeal, he argues that the trial court committed reversible error
in denying his motion to strike a juror for cause after his
response to a question in voir dire indicated a clear bias. We
disagree and affirm his conviction.
BACKGROUND
During voir dire, Mr. Durning indicated that he was a retired
military police officer. In response to a question by appellant's
counsel, Durning stated that he thought it was more likely than
not that a person charged was guilty. Appellant moved to strike
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Durning for cause. The trial court then asked Durning several
questions. Durning responded affirmatively that he could put
aside his background and "just be concerned with what is presented
from that witness box and be fair to both sides."
Appellant's counsel then asked Durning several leading
questions, and Durning responded that he did not think it was more
likely than not that a person charged was guilty. Durning also
stated that the initial question by appellant's counsel was
confusing. The trial court refused to remove Durning for cause,
and appellant used a peremptory strike to remove him from the
panel.
ANALYSIS
"Through voir dire and other competent evidence, the trial
court must examine the venirepersons for signs of a mind set that
would prevent or substantially impair the performance of the
duties of a juror in accordance with his instructions and his
oath." Swanson v. Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d
702, 704 (1994) (citation omitted). "Because the trial judge has
the opportunity . . . to observe and evaluate the apparent
sincerity, conscientiousness, intelligence, and demeanor of
prospective jurors first hand, the trial court's exercise of
judicial discretion in deciding challenges for cause will not be
disturbed on appeal, unless manifest error appears in the record."
Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358
(1987) (citation omitted). In reviewing a trial court's
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determination, the entire voir dire is examined, not just isolated
parts. See Swanson, 18 Va. App. at 186, 442 S.E.2d at 704(citation omitted).
Durning initially responded affirmatively that he thought it
was more likely than not that a person charged was guilty. After
the trial judge explained the presumption of innocence, Durning
responded that he could put aside his background in the military
police and just be concerned with what was presented from the
witness box. Later, in response to a leading question by
appellant's counsel, Durning stated that he did not believe that
someone was guilty because they were charged. Durning also stated
that he understood that the court wanted fairness from him and
that he misunderstood the initial question by appellant's counsel.
Upon examination of the entire voir dire, the record does not
support a finding that the trial court abused its discretion in
refusing to exclude Durning for cause. Accordingly, appellant's
conviction is affirmed.
Affirmed.
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