Theodis Thomas Smith, Jr. v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Annunziata
UNPUBLISHED
Argued at Salem, Virginia
THEODIS THOMAS SMITH, JR.
MEMORANDUM OPINION* BY
v. Record No. 1235-12-3 JUDGE ROBERT J. HUMPHREYS
OCTOBER 8, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Jason S. Eisner (Office of the Public Defender, on brief), for
appellant.
David M. Uberman, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Theodis Thomas Smith, Jr. (“Smith”) appeals his conviction by a jury in the Circuit Court
of the City of Danville (“trial court”) of larceny from the person, in violation of Code § 18.2-95.
Smith argues that the trial court erred in denying his “motion to strike juror 12 for cause when
her relationship with multiple Danville police officers, opposition to sitting in judgment and
firsthand experience with violent crime rendered her unable to sit as a juror and undermined
public confidence in the integrity of the judicial system.” For the following reasons, we affirm
the trial court.
I. Procedural Defaults
Rule 5A:18 provides that, “No ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to attain the ends of justice. . . .”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has
‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals
and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 187 (2010)
(quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). “A
general argument or an abstract reference to the law is not sufficient to preserve an issue.”
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
“Making one specific argument on an issue does not preserve a separate legal point on the same
issue for review.” Id. at 760-61, 589 S.E.2d at 448.
After voir dire, Smith’s counsel indicated that he had motions to make and the parties
conferred at the bench, off the record. Thus, Smith’s objection to seating the juror and the
argument related thereto took place at sidebar and no transcript of the sidebar discussion was
made part of the record before us. Therefore, Smith’s argument is only preserved to the extent
that the trial court later recited Smith’s reasons for the motion to strike the juror on the record.
After the parties exercised their peremptory strikes and the court returned from a recess, Smith’s
counsel addressed the court as follows:
[SMITH’S COUNSEL]: Your Honor, I would ask that the record
reflect that a peremptory challenge was used on Juror No. 12, . . . a
motion to strike for cause had been made based on the answers she
gave to questions and the Court denied the motion, I believe, based
on the fact that she properly answered all questions put forward.
The other motion I would make is . . .
THE COURT: You also moved to strike . . . [at sidebar,] just for
the record, and the Commonwealth objected to that strike as to
[Juror No. 12] and the Court despite the fact that she knows
[Sergeant] Talley and has lunch with [Sergeant] Talley, that was
really the only basis for a strike for cause. I think she made it very
clear in a non-leading way that it’s not something that would affect
her ability to serve as a juror in the case.
[SMITH’S COUNSEL]: She had judgment issues, Your Honor,
that was another . . . a lot of things.
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THE COURT: You say judgment issues?
[SMITH’S COUNSEL]: Religious judgment issues.
THE COURT: Oh, yeah. I think she made it clear . . . you
questioned her pretty, I thought, extensively about that [sic] and I
thought she answered appropriately.
In this on-the-record recitation of the off-the-record motion to strike, Smith only indicated that
he made a motion to strike Juror No. 12 “based on the answers she gave to questions” and her
“religious judgment issues.” However, the trial court made it clear that Smith had argued off the
record that Juror No. 12 should be stricken from the panel based on the fact that she knows and
has lunch with Sergeant Talley, a potential witness in the case.1 Therefore, we address Smith’s
argument related to Juror No. 12’s relationship with Sergeant Talley. However, the other issues
Smith raises in his assignment of error are procedurally defaulted because the record does not
reflect that he raised them or their rationale in the trial court as required by Rule 5A:18.
Specifically, Smith’s assertions that the trial court erred in denying his motion to strike
Juror No. 12 for cause because (1) her firsthand experience with violent crime rendered her
unable to sit as a juror, (2) she had a prior personal relationship with an officer on the Danville
police force, and (3) Juror No. 12 sitting as a juror would undermine public confidence in the
integrity of the judicial system, are not preserved for appeal because the record is silent as to
whether or not Smith advanced these reasons for striking Juror No. 12 before the trial court.
Rule 5A:18; see Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005)
(“Public confidence in the integrity of the judicial system, as a ground for excluding a juror for
cause, must be raised in the trial court or that issue is waived.”).
Smith noted in the trial court that Juror No. 12’s “religious judgment issues” supported
his motion to strike, without further explanation. On appeal, Smith merely alleged in his
1
Sergeant Talley did not testify as a witness in this case.
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assignment of error that Juror No. 12’s opposition to sitting in judgment rendered her unable to
sit as a juror; he did not develop any argument on this issue. Rule 5A:20 requires an appellant to
support his argument with law or authority: “The opening brief of appellant shall contain: . . .
(e) The standard of review and the argument (including principles of law and authorities) relating
to each assignment of error.” In Stokes v. Commonwealth, 49 Va. App. 401, 410, 641 S.E.2d
780, 784 (2007), this Court declined to address appellant’s contention because she cited no
authority for her assertion. Therefore, we do not address Smith’s contention that Juror No. 12’s
opposition to sitting in judgment rendered her unable to sit as a juror because he did not cite any
law or authority for his position.
II. The Merits of the Issue Not Defaulted
We now consider Smith’s argument that Juror No. 12’s relationship with Sergeant Talley
rendered her unable to sit as a juror. “The right to be tried by an impartial jury is guaranteed
under both the United States and Virginia Constitutions.” Taylor v. Commonwealth, 61
Va. App. 13, 22, 733 S.E.2d 129, 134 (2012). “For that guarantee to be effective, persons
accused of violating criminal laws must be provided with ‘an impartial jury drawn from a panel
[of twenty] free from exceptions.’” Id. (quoting Breeden v. Commonwealth, 217 Va. 297, 300,
227 S.E.2d 734, 736-37 (1976)). “It is prejudicial error for the trial court to force a defendant to
use the peremptory strikes afforded him by Code § [19.2-262] to exclude a venireman who is not
free from exception.” Breeden, 217 Va. at 300, 227 S.E.2d at 737. “Any reasonable doubt as to
a juror’s qualifications must be resolved in favor of the accused.” Id. at 298, 227 S.E.2d at 735.
However,
Given that the trial court is able to see and hear each member of
the venire respond to questions posed during voir dire, it is in a
superior position to determine whether a prospective juror’s
responses during voir dire indicate that the juror would be
prevented from or impaired in performing the duties of a juror as
required by the court’s instructions and the juror’s oath. Juror
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impartiality is a question of fact, and a trial court’s decision to seat
a juror is entitled to great deference on appeal. Accordingly, the
decision to retain or exclude a prospective juror will not be
disturbed on appeal unless there had been manifest error
amounting to an abuse of discretion.
Taylor, 61 Va. App. at 23-24, 733 S.E.2d at 134-35 (emphasis added) (quoting Lovos-Rivas v.
Commonwealth, 58 Va. App. 55, 61, 707 S.E.2d 27, 30 (2011)).
The standard to be applied by the trial court in determining
whether to retain a venireman on the jury panel is whether his
answers during voir dire examination indicate to the court
something that “would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.”
Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990) (quoting Adams v.
Texas, 448 U.S. 38, 45 (1980)). “A prospective juror is not subject to automatic exclusion
because of an association with law enforcement personnel, provided the juror has no knowledge
of the facts of the case and demonstrates impartiality toward the parties.” Clozza v.
Commonwealth, 228 Va. 124, 129, 321 S.E.2d 273, 276 (1984).
In this case, the Commonwealth asked Juror No. 12, “Given your knowledge of
[Sergeant] Talley, you meet with her frequently, have lunch with her quite often, would that have
any impact on your ability to listen to the evidence and render a fair and impartial verdict, either
for the Commonwealth or for the defense?” Juror No. 12 responded “No.” Smith’s counsel
followed up with inquiry into Juror No. 12’s relationship with Talley and asked, “you say your
friendship with her would not leave [sic] you to give her anymore credibility or any less
credibility than any other witness who testified?” Juror No. 12 responded, “Right.” Smith’s
counsel also asked if Juror No. 12 would believe Sergeant Talley’s testimony more or less than
anyone else, knowing Talley is a police officer, and Juror No. 12 responded, “No.” None of
Juror No. 12’s answers lead to a conclusion that her relationship with Sergeant Talley as a friend
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and knowledge of Sergeant Talley’s role as a police officer would cause her to be partial towards
one party over another.
Smith attempts to analogize to Breeden, where a potential juror indicated in voir dire that
she believed that defense counsel would have to prove the defendant’s innocence. The Supreme
Court was not satisfied with the efforts of the Commonwealth and the trial court to rehabilitate
the juror because “[i]n response to two long, complex, leading questions, she merely gave the
answers expected.” Breeden, 217 Va. at 300, 227 S.E.2d at 736.
Smith’s case is easily distinguished from Breeden because Juror No. 12 never indicated a
bias or misconception of the law. The juror in this case did not need to be rehabilitated to show
impartiality because she did not show partiality to begin with. While Smith may presume Juror
No. 12’s partiality, it is not apparent from the record and we cannot presume it as a matter of law
and thus cannot conclude that the trial court necessarily erred in denying Smith’s motion to strike
Juror No. 12 based solely on her friendship with a police officer who was a potential witness in
the case.
III. Conclusion
Accordingly, we affirm the trial court’s denial of Smith’s motion to strike Juror No. 12
from the prospective jury panel.
Affirmed.
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