Demonte M. Burgess v. Commonwealth of Virginia ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Huff
UNPUBLISHED
Argued by teleconference
DEMONTE M. BURGESS
MEMORANDUM OPINION * BY
v. Record No. 2225-11-2 JUDGE ROBERT P. FRANK
OCTOBER 23, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Samantha E. Freed (Lepold & Freed, PLLC, on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
Demonte M. Burgess, appellant, was convicted by a jury of attempted malicious wounding,
in violation of Code §§ 18.2-51, 18.2-26, using a firearm in the commission of a felony, in violation
of Code § 18.2-53.1, discharging a firearm in public, in violation of Code § 18.2-280, and
brandishing a firearm in public, in violation of Code § 18.2-282. On appeal, he contends the trial
court erred in not removing Juror McComb for cause at mid-trial. For the reasons stated, we affirm
the judgment of the trial court.
BACKGROUND
On May 9, 2010, a black vehicle pulled into a parking lot in the Wilton Farms apartment
complex. Devon Tyree was seated in the back seat of the vehicle, with Quan Rafaly in the front
passenger seat and appellant in the driver’s seat.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A.D. approached the vehicle to speak to Tyree. After some argument, appellant pushed
A.D. away from the car. A.D. then threw a soda can at appellant. Appellant exited the car and
threw A.D. to the ground. After appellant let A.D. off the ground, A.D. walked away. Appellant
then fired a shot at A.D. and drove away from the scene. A.D. was not hit. Neither Quan nor Tyree
was involved in the incident. They were only bystanders.
During opening statements to the jury, the Commonwealth’s Attorney mentioned “Quan” as
being a front seat passenger. A.D. testified “Quan” was in the front passenger seat, but said that she
did not know Quan’s last name.
Devon Tyree, a defense witness, testified Quan is his brother and was seated in the front
passenger’s seat. Tyree did not indicate Quan’s last name. Detective D.J. Harris testified that he
had obtained information that a “Jaquan Rafaly” was a front seat passenger when the incident
occurred.
Both sides rested. The parties then reviewed and argued the instructions to be given to the
jury. At that point, the trial court was notified by the bailiff that Juror McComb had heard the name
“Quan Rafaly” and said that she was Rafaly’s first cousin.
The Commonwealth’s Attorney replied that there was no testimony that Quan was involved
other than being in the car. Defense counsel expressed a concern that McComb may have heard
something about the incident from Quan.
The following dialogue then occurred:
THE COURT: Good afternoon. So, Ms. McComb, I
understand that you recognized the name
Quan Rafaly.
MS. McCOMB: Yes.
THE COURT: And how did you recognize the name?
MS. McCOMB: That is my first cousin.
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THE COURT: And have you talked to your first cousin
about this case?
MS. McCOMB: No, I have not spoken with him individually
about it. I heard through my parents who
are Quan’s aunt and uncle that he was
involved in a shooting incident and that was
the extent of it.
THE COURT: Do you know any information beyond that?
MS. McCOMB: No, ma’am.
THE COURT: Would that affect your ability to hear this
case?
MS. McCOMB: No, ma’am, I don’t think so.
* * * * * * *
MR. SNOOK [DEFENSE COUNSEL]: Do you know --- is there
any other detail that you have in your
memory at this point about what you were
told about this incident?
MS. McCOMB: Just that he was involved in an incident and
that it was not his gun.
MR. SNOOK: Any other details that you remember?
MS. McCOMB: No.
MR. SNOOK: Have you ever heard him talk at all about
Demonte Burgess?
MS. McCOMB: No.
MR. SNOOK: Or heard any other connection about
Demonte Burgess or other participants in
what happened that day?
MS. McCOMB: No, I never heard any specific names.
MR. SNOOK: Okay, thank you, that’s all.
THE COURT: And are you talking about Jaquan Rafaly?
MS. McCOMB: Yes, he goes by Quan, R-a-f-a-l-y. My
maiden name is Rafaly.
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Appellant moved to strike McComb from the panel and declare a mistrial. He argued
McComb had extra-judicial knowledge as well as a family relationship with Quan and knew
more about the case than she described. Appellant expressed concern that during deliberations
McComb may suddenly remember more details. Appellant offered no basis for his speculative
belief that McComb knew more than she had disclosed to the court.
The court found McComb stated she would not have any problem setting the matter aside
and concluded that for the court to assume otherwise would be speculative. Referring to the
original voir dire, the court noted that when the entire panel was asked if anyone had acquired
any information about the case, it did not register to McComb that the “Quan” mentioned in
opening was her cousin. The trial court concluded that he did not believe McComb had any
further information other than what she indicated.
This appeal follows.
ANALYSIS
On appeal, appellant argues that Juror McComb should have been removed from the
panel: 1) because of the information she had concerning the instant offense; and 2) because of
her familial relationship with Quan. 1 Appellant premises his argument on the fact that McComb
was a first cousin of Quan, who was a passenger in the vehicle, and that McComb had obtained
extra-judicial information from her parents, Quan’s uncle and aunt. Appellant contends, as he
did below, that there is a “possibility” that during deliberations, McComb would suddenly
remember some other details about the incident.
“The right to be tried by an impartial jury is guaranteed under both the United States and
Virginia Constitutions.” Swanson v. Commonwealth, 18 Va. App. 182, 184, 442 S.E.2d 702,
1
Appellant did not argue below nor in his brief that public confidence in the integrity of
the judicial system disqualifies Juror McComb. We will not raise the issue sua sponte.
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703 (1994); see also Code § 8.01-358. In order for that guarantee to be effective, a person
accused of violating criminal laws must be provided with “an impartial jury drawn from a panel
[of twenty] free from exceptions.” Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d
734, 736-37 (1976). Every prospective juror must stand indifferent to the cause, “and 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. Further, if a reasonable doubt exists as to whether the juror is qualified,
he must be excluded. ‘“[I]t is not only important that justice should be impartially administered,
but it also should flow through channels as free from suspicion as possible.’” Id. (quoting
Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)). “These principles are to be
strictly applied and when a prospective juror equivocates about whether he or she has formed a
fixed opinion, the prospective juror should be stricken by the trial court.” Clements v.
Commonwealth, 21 Va. App. 386, 392, 464 S.E.2d 534, 537 (1995).
However, it is common during voir dire to discover that prospective jurors may have
preconceived notions, misconceptions, or opinions about the particular case, or about the
criminal justice system in general. See Cressell v. Commonwealth, 32 Va. App. 744, 761, 531
S.E.2d 1, 9 (2000). For a juror to be disqualified, he must entertain an opinion of fixed character,
‘“which repels the presumption of innocence in a criminal case, and in whose mind the accused
stands condemned already.”’ Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 91
(1980) (quoting Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388, 391 (1931)). Thus,
“‘the test of impartiality is whether the venireperson can lay aside the preconceived views and
render a verdict based solely on the law and evidence presented at trial.’” Cressell, 32 Va. App.
at 761, 531 S.E.2d at 9 (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d
363, 364 (1995)).
Given that the trial court is able to see and hear each
member of the venire respond to questions posed during voir dire,
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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
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 has been manifest error amounting
to an abuse of discretion.
Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61, 707 S.E.2d 27, 30 (2011) (internal
quotations and citations omitted.)
‘“In conducting our review, we consider the juror’s entire voir dire, not merely isolated
statements.”’ Thomas v. Commonwealth, 279 Va. 131, 164, 688 S.E.2d 220, 238 (2010)
(quoting Lovitt v. Commonwealth, 260 Va. 497, 510-11, 537 S.E.2d 866, 875 (2000)) (other
citations omitted).
The analysis for removing a juror mid-trial involves the same analysis used in
determining whether to strike a juror during voir dire. Moreover, for a party to be entitled to a
mistrial for jury misconduct which arises from voir dire, he must show: 1) that a juror failed to
answer honestly a material question on voir dire; and 2) that a correct response would have
provided a valid basis for a challenge for cause. “The motives for concealing information may
vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the
fairness of a trial.” Taylor v. Commonwealth, 25 Va. App. 12, 18, 486 S.E.2d 108, 111 (1997).
“[J]uror misconduct does not automatically entitle either litigant to a mistrial.” Robertson v.
Metropolitan Washington Airport Authority, 249 Va. 72, 76, 452 S.E.2d 845, 847 (1995). The
trial court must also find a probability of prejudice, with the “burden of establishing that
probability . . . upon the party moving for a mistrial.” Id. Hence, we will not overturn “the
denial of a motion for a mistrial . . . unless there exists a manifest probability that [the ruling]
was prejudicial.” Taylor, 25 Va. App. at 17, 486 S.E.2d at 110.
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Here, appellant first argues McComb should have been removed because of her familial
relation with Quan. In Virginia, there is no per se rule disqualifying a prospective juror who is
related to a prosecution witness on the grounds that he is presumed to be biased, or not
indifferent in the cause. Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 733
(2001); see also Townsend v. Commonwealth, 270 Va. 331, 335, 619 S.E.2d 71, 74-75 (2005)
(further explaining Barrett and this principle). If a prospective juror is related to a witness, the
inquiry is whether that relationship would cause the juror to be biased or not stand indifferent to
the cause.
However, it is also important to note that Quan did not testify. Appellant cites no cases,
and we find none, requiring that a juror related to a non-testifying bystander be struck for cause
or removed from the panel mid-trial.
Appellant does not allege juror dishonesty or misconduct. He does not argue that
McComb untruthfully answered a question during voir dire, or that she tried to conceal her
familial relationship with Quan. To the contrary, McComb revealed the relationship to the trial
court. Furthermore, appellant does not contend McComb had prematurely formed any opinion
as to the guilt or innocence of appellant. As such, we find no merit to appellant’s argument.
Next, appellant maintains McComb should have been removed because she received
extra-judicial information from her parents, Quan’s uncle and aunt.
The facts before the trial court were that McComb never spoke to Quan about this case.
The information McComb obtained from her parents was that Quan was involved in a shooting
and that the gun involved was not his. McComb testified, without equivocation, that was the
only information she had received. Appellant argues that because McComb knew her cousin
was involved in the incident, she may have been biased against appellant in order to protect her
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cousin. This argument is based on speculation. Appellant offered no explanation as to how
McComb voting to convict appellant would benefit her cousin.
Further, McComb testified that the limited knowledge she had about the incident would
not affect her ability to hear the case. The trial court, who had the opportunity to observe
McComb’s testimony and demeanor, found from these words that McComb could set aside the
information she had received. The trial court also concluded that McComb had no further
information than she revealed to the court. These factual findings will not be disturbed on appeal
unless no evidence supports those findings. See Akers v. Commonwealth, 216 Va. 40, 46, 216
S.E.2d 28, 32 (1976). Further, as we have previously noted, juror impartiality is a question of
fact. Wainwright v. Witt, 469 U.S. 412, 462 (1985).
Appellant’s basis for McComb’s exclusion is pure speculation. He contends McComb
might, during deliberation, recall additional information. However, there is nothing in the record
to suggest that McComb had any information other than what she had already disclosed.
We conclude the trial court did not abuse its discretion in not removing McComb. Based
on McComb’s voir dire, the trial court would not have erred in keeping McComb on the panel
during the original voir dire. If, during the original voir dire, McComb had indicated she was the
cousin of a non-testifying bystander, she would not have been struck for cause. Thus, we also
find the trial court did not err in refusing to grant a mistrial.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of appellant’s motions to
remove Juror McCombs and for a mistrial.
Affirmed.
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