Timothy Mark Payne v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
TIMOTHY MARK PAYNE
MEMORANDUM OPINION * BY
v. Record No. 0561-01-4 JUDGE JAMES W. BENTON, JR.
AUGUST 13, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
T. Kevin Wilson (The Law Office of T. Kevin
Wilson, P.C., on brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The issue raised in this appeal is whether the trial judge
erred in refusing to disqualify a juror for cause. For the
reasons that follow, we affirm the judgment.
I.
The issue arose in the trial of Timothy Mark Payne for rape,
abduction, and three counts of forcible sodomy. At the outset
of trial, which began on a Monday at 10:00 a.m., both the
prosecutor and Payne's attorney informed the trial judge that
they estimated the trial would last two days. During the
prosecutor's voir dire, no person on the panel of prospective
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jurors indicated they could not serve for two days. Payne's
attorney, however, asked the prospective jurors whether they had
events planned that would pressure them to rush their
deliberations if the trial lasted three or four days. Juror
Hull said she had not made childcare arrangements for her small
children for Thursday or Friday and had no place to leave them.
When asked by Payne's attorney whether she "would feel some
pressure if this were Wednesday afternoon and you hadn't reached
a verdict," she said, "Yes." He then engaged in the following
colloquy with Juror Hull:
Q. Do you think that pressure would cause
you to give up your position and kind of go
along with the majority, so you could --
A. No, I don't think so.
Q. So if you were faced with the decision
of coming back Thursday or kind of
relinquishing your stronghold and your
opinion, what do you think you would do?
A. I don't know. That's a tough decision.
I mean I would try to see if I could make
arrangements to have my kids watched, but --
Q. Worst case scenario, let's assume you
couldn't.
A. Then I would -- then I may be -- I could
possibly be swayed, I guess, if I couldn't
find any place to leave them.
In response to Payne's attorney's motion to strike Juror
Hull for cause, the trial judge commented as follows:
I really think it calls for some
speculation. This case is scheduled for two
days. If she can't sit on Thursday, we
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generally do appeals on Thursday and motions
on Fridays anyway.
But what he's saying is if it takes
more -- we have to take as long as it takes
to give both sides a fair trial. Do you
understand that?
Juror Hull replied, "I understand, yes, I do." The trial judge
denied the motion to strike Juror Hull for cause. Juror Hull
was one of the twelve jurors impaneled to hear Payne's trial.
The trial commenced that morning and continued to 5:04 p.m.
that evening. The trial resumed Tuesday at 9:00 a.m. At the
conclusion of the evidence that afternoon, the judge granted
Payne's attorney's motions to dismiss the abduction charge and
the charge of forcible sodomy involving cunnilingus. The jury
began its deliberations at 5:22 p.m. At 6:25 p.m., the judge
adjourned and instructed the jury to return Wednesday morning at
8:50 a.m. to continue deliberating. At 11:32 a.m. on Wednesday,
the jury reached a verdict, convicting Payne of rape and of
forcible sodomy involving fellatio. The jury acquitted Payne of
forcible sodomy involving anal intercourse. At the conclusion
of the penalty phase, the jury recommended eight years on the
rape conviction and seven years on the conviction for forcible
sodomy. The trial concluded on Wednesday at 12:56 p.m.
II.
Payne contends Juror Hull could not be fair and impartial
because she had not arranged for childcare on Thursday and Friday
and, thus, would feel "pressure" if a verdict was not reached by
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Wednesday. The Commonwealth responds that the trial judge did not
abuse his discretion in analyzing the matter as presenting merely
a potential, future scheduling conflict.
To qualify as a juror, a person must "stand indifferent in
the cause." Code § 8.01-358. To guarantee to an accused the
constitutional and statutory right to an impartial jury, a trial
judge must exclude a prospective juror if the judge "entertains a
reasonable doubt as to [that person's] qualifications." Calhoun
v. Commonwealth, 226 Va. 256, 258, 307 S.E.2d 896, 897 (1983).
On our review of the trial judge's determination of the
factual setting, we give deference to the judge's resolution of
conflicting considerations. Schmitt v. Commonwealth, 262 Va. 127,
139, 547 S.E.2d 186, 195 (2001). We do so because the trial judge
"is in a superior position to determine whether a prospective
juror's responses during voir dire indicate that the prospective
juror would be prevented or impaired in performing the duties of a
juror." Id.
Although Juror Hull said she "could possibly be swayed" in
the jury's deliberations if the trial extended beyond Wednesday,
which would have been a third day of trial, the record clearly
indicates that both the prosecutor and Payne's attorney
represented to the trial judge immediately before voir dire that
the trial would consume two days. As the trial judge noted, the
juror's concerns were at best speculative. Indeed, the entire
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inquiry was premised upon the trial extending two days longer than
expected by both the prosecutor and the defense counsel.
Even in the event the trial lasted longer than expected, the
juror's response did not foreclose either that she would find a
sitter for her children or that she would properly perform her
obligation as a juror. The judge assessed whether, despite her
concerns, Juror Hull understood she would be required to
deliberate as long as necessary in order to ensure both parties a
fair trial. We cannot say that this record demonstrates a
reasonable doubt Juror Hull would have done so.
Moreover, any concern that the trial might have continued on
Thursday and Friday was reasonably dispelled by the judge's
statement that those days of the week were reserved for motions
and appeals. Indeed, the judge expressly recognized that any
potential conflict was not a real one.
Based on the record before us, we hold the trial judge did
not abuse his discretion in refusing to disqualify Juror Hull.
Accordingly, we affirm the judgment.
Affirmed.
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