Antonio Tquan Terry, s/k/a Antonio T-Quan Terry v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and Friedman
UNPUBLISHED
Argued at Lexington, Virginia
ANTONIO TQUAN TERRY, S/K/A
ANTONIO T-QUAN TERRY
MEMORANDUM OPINION* BY
v. Record No. 0187-21-3 JUDGE FRANK K. FRIEDMAN
DECEMBER 13, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Paul C. Galanides for appellant.
John Beamer, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial Antonio TQuan Terry (“Terry”) was convicted of first-degree
murder, use of a firearm in the commission of a felony, and five counts of maliciously shooting
into an occupied vehicle. He was sentenced to forty-five years of incarceration.
He argues on appeal that the circuit court erred in denying his motion to set aside the
verdict. His motion to set aside alleged that one of the jurors answered questions falsely on voir
dire regarding her relationship to the victim and to the Commonwealth’s key witness. For the
following reasons, we affirm.
Background
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(2016)). This Court must reject any of appellant’s evidence that conflicts with that of the
Commonwealth, and instead “regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences to be drawn therefrom.” Id. at 473 (quoting Kelley v.
Commonwealth, 289 Va. 463, 467-68 (2015)).
Jury Trial Proceedings
The evidence presented during the jury trial established that Terry traveled in a vehicle
with two other men on July 25, 2019; Keenan Cunningham was driving the vehicle and Lateze
Barnes and Terry were passengers. The testimony at trial established that Cunningham stopped
to let both Barnes and Terry out of the car just after 3:30 a.m. However, Cunningham was found
shortly after by an officer in the vicinity; he was dead, sitting in the same vehicle, just down the
street from where the passengers had been dropped off. Cunningham had bullet wounds and
.9-millimeter shell casings were found near the crashed vehicle.
The police investigated Terry, who admitted to detectives that he had been with
Cunningham the previous night but was dropped off before Cunningham’s car crashed. Terry
was subsequently charged with several crimes in relation to Cunningham’s death.
Barnes was a witness for the Commonwealth at trial. He had been friends with both
Terry and Cunningham for about fifteen years before the murder. He testified that the three men
had gone together to a casino in North Carolina the night before. On the way home to Danville,
Terry began arguing with Cunningham about Cunningham’s reckless driving. Barnes explained
there hadn’t been bad blood or pre-existing arguments between the friends, but on that night,
Terry had been asking to get out of the car—because of Cunningham’s dangerous and fast
driving—but Cunningham would not let him out. During the trip home Terry told Cunningham
that his driving had put Terry’s life in danger. Eventually, Cunningham did pull over and let
Barnes and Terry out at an unintended destination—Hughes Street. Barnes exited the vehicle
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from the rear passenger side, and Terry exited from the front passenger seat. Barnes heard shots
that were close and also on the right side of the car. After hearing the shots, he ran. He glanced
back and saw flames on the right side of the car, heard gunshots, saw the flashes of gunfire going
toward the car, and saw Terry still to the right of the car. Barnes testified that he had not seen a
gun, had not seen Terry with a gun that night, and guns were not allowed in the casino they were
returning from. Barnes took himself to the Danville police station the next day after hearing the
police were looking for him.
The Commonwealth called fourteen witnesses to testify in addition to Barnes. Mostly,
they were police or forensic workers that were not present during the shooting. The officers and
forensic testimony established that shots were fired into the vehicle from a .9-millimeter gun and
that Terry was in the area of the murder around 3:30 a.m. based on phone records. However, a
witness named Tomekia Barnes was an eyewitness to some of the events. She testified that she
lived on Hughes Street and knew Terry prior to this incident. The night of the murder, she was
walking between apartments looking for a cigarette. She saw a vehicle pull over and heard two
car doors open. She did not see who got out of the front passenger seat, but she did hear and see
what looked like a shooting before seeing someone take off running. She did not see who did the
shooting, but she saw someone wearing a white t-shirt that “looked like [Terry].” The next day
Terry came by her apartment several times. On at least one occasion, he asked her about what
she told the police. She asked him where the gun was from the night before, to which he replied
he did not have a gun the night before. Tomekia explained that she knew Terry owned what
might have been a .9-millimeter gun, which she had seen him with before this incident.
The jury returned a verdict finding Terry guilty of first-degree murder, use of a firearm in
the commission of a felony, and five counts of maliciously shooting into an occupied vehicle. It
sentenced Terry to forty-five years.
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The court indicated it would impose the jury’s sentence. Prior to entry of the court’s
sentence Terry moved to set aside the verdict and requested a new trial. He argued that one of
the jurors, Angela Flowers, knew Barnes, a key witness, and Cunningham, the victim, but was
dishonest about the relationships during voir dire. The court held a hearing on this motion prior
to entering a sentencing order.
Voir Dire Proceedings
During the pre-trial venire of the jury, the circuit court gave general directions to the
jurors about venire. It explained “if the court finds that it would be inappropriate for a particular
juror to serve on this case for a specific reason, such as a juror being related to one of the parties,
or a victim then that juror would be excused from service as a juror in this case.” Following
general instructions, the court asked the jurors “[d]oes anyone know, or is anyone related by
blood or marriage, or have any relationship that you know of with Mr. Terry?” to which no juror
responded, including Flowers. When asked if any member of the jury knew Cunningham, two
jurors responded that they did; each of these two jurors was asked if they could be fair and
impartial, to which they said no. Both jurors were then excused.1 Flowers did not respond in
any manner to the question about Cunningham. Flowers did not respond affirmatively when the
Commonwealth asked the jury whether anyone knew Barnes, nor did she respond affirmatively
when the jurors were asked whether there was any reason they could not give a fair and impartial
trial to both sides.
Post-Trial Motions to Set Aside the Verdict and to Grant a New Trial
Following the trial, social media evidence linking Flowers and Cunningham was
discovered by Terry’s mother, who knew Flowers’ mother, but not Flowers. A Facebook post
1
The questions about knowing Terry and Cunningham were repeated three additional
times as other jurors were replaced based on various responses.
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from Flowers read “Rip Kalosso Keenan there was never a dull moment when we was at primos,
you always had me crying laughing.” Kalosso Keenan was the name Cunningham used on
Facebook.
During the hearing on Terry’s post-trial supplemental motion to set aside the verdict,
Terry argued that Flowers provided a false answer during jury selection regarding her knowledge
of Barnes and Cunningham. He alleged that she allowed her knowledge of Barnes to affect her
credibility determination of the Commonwealth’s witness, and her lack of candor regarding her
knowledge of Cunningham proved she was not indifferent in the case, resulting in injustice to
Terry.
Flowers testified about her knowledge of and relationship with Terry, Cunningham, and
Barnes during the post-trial hearing. Carlos Torrain, a man who knew all three men, testified as
well. Terry and Terry’s mother also testified about the relationships between Flowers, Terry,
Barnes, and Cunningham.
Flowers’ Relationship with Barnes, the Commonwealth’s Key Witness
Torrain, who was thirty-two years old at the time of his testimony, explained that Barnes
and Flowers had known each other during their childhood and he had seen them interact a few
times fifteen or sixteen years prior. When they interacted those few times, they were just
“chilling” and “coming out of high school.”
Flowers testified that she knew Barnes as a child and they were maybe cousins, but she
had not seen him since she was a child and did not even know he lived around her. She had not
been in touch with him since childhood. She did not know if they were actually biologically
related, or if so, how “far down the line” their relationship went. She did not recognize him by
name at trial because she knew him simply as “Teze,” rather than as Lateze Barnes. Once she
actually saw him at trial, she recognized him.
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Flowers’ Relationship with Cunningham, the Victim
Torrain said that he grew up knowing Barnes, Flowers, and Cunningham, and though
Barnes came around to the apartment complex where he and Flowers lived, he never saw
Cunningham in the complex.
Flowers testified that she did not recognize Cunningham by his name either (she knew
him as Kalosso Keenan, his Facebook name). She only realized she knew him when she
recognized him from a photograph shown during the trial.
Flowers testified that she had known Cunningham for about two weeks, when they both
worked as delivery drivers for an Italian restaurant, Primos, about four years prior to the trial.
She remained Facebook friends with Cunningham but said they never spoke or kept in touch
after that two-week period. She saw on Facebook that he died (and wasn’t informed by anyone
specifically). When she heard he died she never looked up any information about his death.
Flowers’ Relationship with Terry2
During the hearing, Terry testified he did not know Flowers and had never talked to her
in his life.
Flowers testified that they grew up near each other, so she knew of him, but their
interactions were limited to “maybe say[ing] hey.” It had been a while since she had seen him.
She mentioned knowing his name, but she did not know him “very well,” only “in passing.”
2
In his motion and supplemental motion to set aside the verdict, Terry does not raise any
allegation that Flowers’ impartiality was affected by her knowledge of Terry—however, Terry
did testify at the hearing. Also, in Terry’s brief he mentioned that Flowers “admitted knowing
[Terry] as well . . .” and argued that Flowers “offered absolutely no explanation for why she did
not immediately acknowledge her prior contacts with the Appellant.”
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Flowers’ Explanation of Her Failure to Disclose these Connections and the Circuit Court’s
Ruling Finding that Flowers Did Not Intentionally Misrepresent Her Responses and that Flowers
was Credible and Unbiased
Flowers admitted that she did not say anything when she realized she knew Cunningham.
Flowers explained that she didn’t say anything about knowing any of the men she recognized
because it would not have anything to do with whether Terry was “right or wrong”—this was
based on the questions she had seen the judge ask the jurors who knew Cunningham during voir
dire. She clarified that she knew to base her decision on just the truth and that her decision in
deliberation was based only on the evidence, the law, and what she observed during trial. She
agreed that by the time she went back to deliberate, she realized she knew the people involved.
However, she testified that this knowledge “didn’t affect anything cause I didn’t know any of the
[sic] personally [sic], like close wise. Like, we spoke, talked, conversate so I based on it on what
I seen, what they showed us . . . the videos, the evidence.”
The circuit court found that Flowers was “very credible.” It could “understand” Flowers
not recalling the knowledge given the time frame involved. Though it found the Facebook post
troublesome, it noted she adequately explained her confusion given that she knew Cunningham
for just a two-week period two years before his death and four years before trial. It found that
she did not “intentionally misrepresent her responses.” The court “accept[ed] as true her
testimony that she was not biased [and found] the defense [did not] demonstrate[] that she would
have been struck.”
Accordingly, the judge denied the motion to set aside. This appeal followed.
Analysis
A. Standard of Review
“It is well settled that the credibility of witnesses [and] the weight accorded witnesses’
testimony . . . are matters that are within the province of the fact finder.” Perez v.
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Commonwealth, 40 Va. App. 648, 655 (2003) (citing Brown v. Commonwealth, 25 Va. App. 171,
192 (1997)). “The existence of an individual juror’s possible bias or partiality is a question of
fact to be determined by the trial court.” Id. (citing Watkins v. Commonwealth, 229 Va. 469, 480
(1985)). “An appellate court must give deference to a trial court’s factual finding regarding a
juror’s impartiality because the trial court ‘sees and hears the juror.’” Blevins v. Commonwealth,
267 Va. 291, 297 (2004) (quoting Eaton v. Commonwealth, 240 Va. 236, 246 (1990)). The trial
court is in “a superior position to determine whether a prospective juror’s responses . . . 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.” Lovos-Rivas v. Commonwealth, 58 Va. App. 55,
61 (2011) (quoting Townsend v. Commonwealth, 270 Va. 325, 329 (2005)). Therefore, a trial
court’s finding with respect to juror impartiality will be reversed “only upon a showing of
manifest error.” Blevins, 267 Va. at 297 (citing Weeks v. Commonwealth, 248 Va. 460, 475
(1994)); see Skilling v. United States, 561 U.S. 358, 396 (2010) (“A trial court’s finding of
impartiality may be overturned only for manifest error.”); Goodwin v. Commonwealth, 71
Va. App. 125, 136 (2019) (“Juror impartiality is a question of fact [which] must be affirmed
unless it is plainly wrong or without evidence to support it.”).
B. Constitutional Guarantee of an Impartial Jury
Terry challenges the circuit court’s finding—that Flowers did not intentionally answer
incorrectly—as “plainly wrong.” Terry’s argument is steeped in his constitutional right to an
impartial jury.
Voir dire allows the parties to examine possible biases in potential jurors, and truthful
answers are necessary in the process of impaneling an impartial jury. McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). “Demonstrated bias in the responses to
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questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to
warrant challenge for cause may assist parties in exercising their peremptory challenges.” Id.“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 (2012) (citing Swanson v.
Commonwealth, 18 Va. App. 182, 184 (1994)). This constitutional guarantee is reflected in
Virginia statutes and the Rules of the Supreme Court of Virginia. Code § 19.2-262.01; Code
§ 8.01-358; Rule 3A:14.
A Virginia statute gives parties the right to ask each juror whether he or she (1) is related
to either party; (2) has any interest in the cause; (3) has expressed or formed any opinion; or
(4) is sensible of any bias or prejudice. See Code § 19.2-262.01; see also Rule 3A:14 (listing
four similar factors and two additional grounds for inquiry into the jurors’ bias or prejudice
against either party, or inability to give a fair and impartial trial). Jurors are required to reveal
any knowledge relative to the fact in issue while in open court. Code § 19.2-262.01.
To be impartial, “[e]very 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.’”
Taylor, 61 Va. App. at 23 (quoting Breeden v. Commonwealth, 217 Va. 297, 298 (1976)). “It is
the duty of the trial court, through the legal machinery provided for that purpose, to procure an
impartial jury to try every case.” Lovos-Rivas, 58 Va. App. at 60 (quoting Salina v.
Commonwealth, 217 Va. 92, 93 (1976)).
However, “there are no hard and fast rules” to determine whether a jury is impartial, “and
each case must be determined under its own set of facts.” Educational Books, Inc. v.
Commonwealth, 3 Va. App. 384, 387 (1986).
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C. Two- Part Test for New Trial Based on Juror’s Dishonest Answers in Voir Dire
The Supreme Court of the United States developed a two-part test to determine when a
party is entitled to a new trial based on juror dishonesty during voir dire in McDonough Power
Equipment, Inc. Under this test, a litigant:
[M]ust first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for
cause.
Blevins, 267 Va. at 297 (citing McDonough Power Equip., Inc., 464 U.S. at 556).
D. Terry Did Not Prove Both Prongs of the McDonough Test
1. The Circuit Court Did Not Abuse its Discretion When it Concluded Flowers
Did Not Intentionally Lie During Voir Dire
Pursuant to the McDonough test, our first inquiry is whether the circuit court abused its
discretion when it found Flowers’ explanation for her silence “credible.” We examine Flowers’
candor at two points in the trial, 1) when she heard the names on voir dire and 2) when she
recognized the men during trial.
a. Flowers’ Honesty During Voir Dire
The parties each cite to Blevins, which concerned a defendant’s motion for mistrial based
on juror untruthfulness during voir dire. 267 Va. at 293. The victim in Blevins was sexually
assaulted by the defendant in a parking garage; the jurors all responded negatively to a voir dire
question asking whether they or a family member had ever been a victim of a serious offense.
Id. Immediately following the conclusion of the trial, a juror mentioned to a courtroom deputy
that she did not park in garages because she had been the victim of an armed robbery in a
parking garage thirteen to fifteen years earlier. Id. at 293-95. The deputy told the
Commonwealth’s attorney, who told defense counsel. Id. at 294. Defendant moved for a
mistrial based on the juror’s failure to reveal she had been the victim of a serious offense in
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response to a question on voir dire. Id. In a subsequent hearing, the juror explained that she did
not hear or understand the question about the serious offense, because if she had she “would
have raised both hands up to have not been on this trial.” Id. She insisted she had not
deliberately withheld information. Id. The court then asked whether her prior bad experience
affected her ability to give a fair and impartial trial, to which she answered “[a]bsolutely not; I
did my judgment on the evidence and the evidence only. It was nothing personal . . . it had no
effect on my decision at all” and explained she was “not bias[ed].” Id. The trial court found that
the defendant had not proven that the juror failed to answer honestly by deliberate evasion, nor
had he proven a valid challenge for cause based on juror bias against the defendant. Id. at 295.
This Court affirmed the ruling, explaining “[b]ecause the evidence supported the trial court’s
findings that the juror’s failure to answer the [question] was accidental rather than intentional
and that she stood impartial to the cause, its denial of [the motion for mistrial] was not error.” Id.
at 296 (first alteration in original). Defendant appealed to the Supreme Court, which affirmed
this Court and found that the findings of the trial court were fully supported by the evidence; the
juror was free of bias and she acted impartially. Id. at 297. It noted in particular that the juror
did not intentionally give a wrong answer and that she “decided the case impartially based upon
the evidence presented at trial [and the defendant] failed to establish either part of the two-part
McDonough test.” Id. Thus, Blevins directs us to determine a juror’s honesty based on whether
the incorrect answer was given accidentally or intentionally.
Flowers explained why she did not acknowledge a relationship with Barnes,
Cunningham, or Terry during voir dire—she didn’t recognize them by name only. She knew
Barnes by a different name and had not seen him in years, she worked with Cunningham four
years prior, for only two weeks, and knew him by a different name, and she barely knew Terry.
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Indeed, Terry himself denied having ever spoken to Flowers in his life. The circuit court found
Flowers credible and believed her explanations.
While we accept the circuit court’s credibility findings, we are not unsympathetic to
Terry’s position. Flowers recognized her erroneous responses early in the trial when an alternate
juror was available. She failed to inform the court of her mistake—but the circuit court accepted
her explanation for why she did so. The court further found her to be unbiased and impartial.
The circuit court was in a better position to determine Flowers’ credibility, and Flowers’
testimony was sufficient to support the circuit court’s finding. Thus, we do not find error in the
circuit court’s decision, and it was not plainly wrong for the court to determine Flowers
answered honestly during voir dire, and her incorrect answer was not given intentionally.
b. Flowers’ Conduct During Trial
Terry argues that, even if Flowers was honest during voir dire, she was dishonest by
failing to disclose that her voir dire answers were incorrect once she realized the error. The
circuit court focused on Flowers’ honesty during voir dire and her testimony. The court also
denied Terry’s motion to set aside the verdict, in part, because Flowers was found to be
impartial.3
We recognize that a juror’s conduct beyond voir dire must be impartial, consistent with
the well-established Sixth Amendment right to an impartial jury, as applied to Virginia by the
3
McDonough and its progeny do not address whether it is dishonest to remain silent upon
a subsequent realization that a voir dire answer is incorrect; in fact, the McDonough test
explicitly limits the inquiry to whether “a juror failed to answer honestly a material question on
voir dire.” Blevins, 267 Va. at 297 (emphasis added). Thus, by the clear language of
McDonough, we do not look outside of a juror’s responses on voir dire. Flowers’ decision to
remain silent—upon realizing her voir dire answers were incorrect—occurred outside of voir
dire.
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Fourteenth Amendment.4 However, Terry does not extend his argument to include a Sixth
Amendment claim of juror bias. Had he done so, we would consider whether the juror was
actually biased, regardless of whether she was honest, without restricting our review to voir dire
responses. “Failure to satisfy the requirements of McDonough does not end the court’s inquiry,
however, when the petitioner also asserts a general Sixth Amendment claim challenging the
partiality of a juror based upon additional circumstances occurring outside the voir dire.”
Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998).
That Terry raised a McDonough challenge rather than a general Sixth Amendment claim
does not impact the outcome on this particular appeal. The remedy for allegations of jury
partiality is a hearing in which the defendant has the opportunity to prove actual bias. Smith v.
Phillips, 455 U.S. 209, 215 (1982). In this case, Terry was given an opportunity post-trial to
establish whether Flowers was actually biased. As explained infra, the circuit court did not err in
finding Flowers had no actual bias—thus, even if Terry had raised a general Sixth Amendment
claim on appeal, it would fail.
4
Jurors are prohibited from conduct that can create bias even after voir dire has
concluded. See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private
communication between jurors and outside persons about the pending matter is presumptively
prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case
for a new trial where a juror took himself to the scene of the collision at issue, reenacted details
of the motor vehicle collision, then drew a sketch for and described his findings to other jurors);
Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the
news about the trial does not “in every case amount to prejudicial misconduct by the jury as a
matter of law [though] [s]ome publicity to which jurors have been exposed . . . may have
effectively prejudiced the jury in its deliberation”); Haddad v. Commonwealth, 229 Va. 325, 329
(1985) (finding it was juror misconduct supporting reversal when a juror was prejudiced in the
case, as evidenced by his comments to two attorneys at lunch suggesting they should feel guilty
that they helped criminals walk the street, and commenting his “client” wouldn’t “get off”);
Riner v. Commonwealth, 268 Va. 296, 311-13 (2004) (noting in discussion that a juror was
dismissed from service after he had been seen attempting to discuss evidence with other jurors
during the trial, and admitted to doing so when questioned).
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2. The Circuit Court Did Not Abuse its Discretion When it Determined a
Correct Response Would Not Have Provided a Valid Basis for Challenge
for Cause
The second part of McDonough—that a correct response would have provided a valid
basis for a challenge for cause—requires Terry to prove that Flowers was not impartial. A valid
basis for cause exists where a juror is not indifferent to the cause at hand. Taylor, 61 Va. App. at
23; Code § 19.2-262.01. “If he has any interest in the cause, or is related to either party, or has
expressed or formed any opinion, or is sensible of any bias or prejudice, he is excluded by the
law.” Lovos-Rivas, 58 Va. App. at 60-61 (quoting Spangler v. Ashwell, 116 Va. 992, 996-97
(1914)).
Impartiality is not proven simply because Flowers was aware of, or even knew, Terry,
Barnes, or Cunningham. “Although a potential juror may have some knowledge of the case, or
preconceived or even erroneous notions about the legal system, 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.’” Ramos v. Commonwealth, 71 Va. App. 150, 157
(2019). Only in exceptional circumstances is bias implied because of a juror’s relationship to
someone involved in the trial. McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring); see
Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988) (“Implied bias ‘is limited in application to
those extreme situations where the relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average person could remain impartial
under the circumstances.’”). Virginia disfavors “per se rules of disqualification [of a juror]
which are based on ‘a presumption of [juror] bias or prejudice.’” Bay v. Commonwealth, 60
Va. App. 520, 531-32 (2012) (quoting McGann v. Commonwealth, 15 Va. App. 448, 454 (1992))
(noting cases where per se disqualification did apply, including when a juror was a current client
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of counsel, when a juror’s brother was a witness, and when a juror was stockholder in a company
that was a party).
a. Terry Did Not Prove Flowers’ Knowledge of the Witness, Barnes,
Would Support a Challenge for Cause
A relationship by blood or marriage to a party or victim is one of the exceptional
circumstances in which the potential for prejudice is inherent. Gray v. Commonwealth, 226 Va.
591, 594 (1984). Barnes, the Commonwealth’s witness, is the only person involved in the trial
with an alleged familial relation to Flowers, though the nature of the relation was not proven.5
Even assuming this omission is not fatal to the argument, the relationship between Barnes and
Flowers is not sufficient to establish inherent prejudice. Code § 19.2-262.01 considers whether
the juror is related to either party. (Emphasis added). This inherent prejudice also applies where
a juror is related to a victim. Brooks v. Commonwealth, 41 Va. App. 454, 460 (2003). On the
contrary, this Court has held that a familial relationship between a juror and a prosecution
witness “alone does not warrant the exclusion of an otherwise competent juror for bias” and
“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.” Bay, 60
Va. App. at 531 (“There is no per se disqualification rule for a prospective juror related to a
prosecution witness [or] a current or past acquaintance between a juror and a prosecution
witness[.]”); Mayfield v. Commonwealth, 59 Va. App. 839, 845, 847-48 (2012) (finding no abuse
5
This blood relation was Terry’s burden to prove. Flowers testified that her family
referred to Barnes as a cousin, but she wasn’t sure if their bloodlines actually crossed. There was
no evidence put on to establish whether they were still actively family (in the case of a relation
through marriage) or whether they were cousins by blood or simply affinity. See Doyle v.
Commonwealth, 100 Va. 808, 810-811 (1902) (distinguishing blood relatives by those connected
only through marrying blood relatives, and finding no error where an uncle of one juror was a
brother-in-law through marriage to an uncle of a witness); see also Brooks, 41 Va. App. at 460
(“the long-standing common-law rule disqualif[ies] a venireman who is related, within the ninth
degree [to a party or victim]” through blood or marriage (emphasis added) (quoting Gray, 226
Va. at 593)).
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of discretion where the trial court declined to strike a juror for cause because she was related to a
prosecution witness, given there was no evidence presented to establish bias between the juror
and witness).
The testimony from Flowers and Torrain indicated there was no relationship between
Flowers and Barnes, her “cousin,” at the time of the underlying events or the trial. There is no
presumption that Flowers was biased for or against Terry because of her relationship with
Barnes, and she testified unequivocally that her ability to be fair and impartial was not affected
by this relationship. Terry did not put on any evidence to establish that Flowers was biased
against Terry because of any relationship with Barnes—to the contrary, Flowers was not even
asked whether she had a good relationship with Barnes when she last saw him. The circuit court
specifically articulated its finding that Flowers was credible when she testified she was not
biased, and we defer to its credibility determinations. Therefore, the circuit court’s ruling on the
motion was not error, nor was its finding that Flowers’ relationship with Barnes did not cause her
to be biased.
b. Terry Did Not Prove that Flowers’ Knowledge of Terry Would
Support a Challenge for Cause
Terry appeals the circuit court’s denial of his motion and supplemental motion to set
aside—neither of those motions mentions Flowers’ knowledge of Terry himself. During the
hearing on these motions, Flowers testified about her limited relationship with Terry, and Terry
testified that he did not know her. Assuming that the issue of Flowers’ knowledge of Terry is
preserved and properly before us on appeal, Terry failed to prove that a relationship between
Flowers and Terry would have supported a valid challenge for cause. Torrain did not remember
ever seeing Flowers and Terry interact while growing up, Flowers remembered saying hello in
passing occasionally, and Terry testified that he had never spoken to Flowers in his life and did
not know her. There was no familial or other relationship between the two that created a
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presumption of bias. Terry provided no evidence as to why Flowers would be biased against
Terry simply because she had known him in childhood. Flowers testified that she decided the
case based on the evidence, and the circuit court believed her testimony that she was not biased.
We defer to the circuit court’s credibility finding and find no abuse of discretion.
c. Terry Did Not Prove That Flowers’ Knowledge of the Victim,
Cunningham, Would Support a Challenge for Cause
As the circuit court noted, this is the most difficult of the three relationships to grapple
with, given the social media post. However, the relationship between Flowers and Cunningham
does not call into question most of the factors in Code § 19.2-262.01 or Rule 3A:14; Flowers was
not related to Cunningham, had no interest in the cause, did not indicate she had formed any
opinion about guilt, and did not acknowledge she was sensible of any bias or prejudice therein.
The only factor to consider is whether her relationship with Cunningham caused her to develop a
bias against Terry. Flowers’ testimony established that she did not even know Cunningham’s
real name, that she had known him for only two weeks, and that she found out about his death
through Facebook (as opposed to a call from a family member or mutual friend). According to
her testimony, she did not even look up the events surrounding his death. Torrain never saw
Cunningham interact with Flowers. Flowers testified that she had not spoken to Cunningham
since the two-week period in which they had worked together several years in the past.
Flowers’ Facebook post did indicate that she knew Cunningham and that he made her
laugh; however, this is not enough to raise a valid basis for a challenge for cause. Even where a
juror has some type of non-familial relationship to the defendant, they are not necessarily
incompetent to serve as a juror. Virginia has historically found jurors competent despite a
relationship to the case, perhaps in situations even more concerning than this one. See
Richardson v. Planter’s Bank of Farmville, 94 Va. 130, 134-35 (1896) (declining to presume that
a juror was incompetent because they were a debtor of the defendant bank, noting that to find
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otherwise would “estimate too cheaply integrity under the sanction of an oath”); Spangler, 116
Va. at 995-97 (concluding the juror was not incompetent simply because his brother had a claim
against the defendant in a similar case involving a purchase of mineral rights by an agent of
defendant); Brooks, 41 Va. App. at 460-62 (rejecting an argument that bias existed simply
because the juror’s sister was married to the great-uncle of the victims); Huguely v.
Commonwealth, 63 Va. App. 92, 127 (2014) (finding no error where court denied motion to
strike a juror, a professor at victim’s university, who taught a friend of the victim’s at the time of
victim’s death and gave the friend a postponement of an exam to attend the funeral, but could not
remember the friend’s name and said this had no impact on how she viewed the case); cf.
Williams v. Commonwealth, 14 Va. App. 208, 215-16 (1992) (finding error where four of the
jurors were not impartial, including one that gave a eulogy at the victim’s funeral, one who had
worked with the murder victim for three or four months and was involved in the events of the
stabbing, and one who knew the victim’s family for a long time and knew the events surrounding
the victim’s death).
Again, Flowers testified that she made her decision based on the evidence at trial and was
not biased. The circuit court found her testimony credible, and we defer to that finding. Though
the relationship between Cunningham and Flowers is troubling, there is no basis here to find that
the circuit court abused its discretion.
E. Public Confidence
Terry’s argument on brief suggests that this Court should reverse the circuit court
because it must maintain public confidence in the integrity of the judicial system, including jury
selection. The Supreme Court of Virginia has recognized that “in constituting the jury panel,
‘[p]ublic confidence in the integrity of the process’ is also ‘at stake.’” Perez, 40 Va. App. at 658
(quoting Barrett v. Commonwealth, 262 Va. 823, 826 (2001)).
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As the Commonwealth notes, the public confidence argument was not raised by Terry
before the circuit court. Case law requires that a public confidence objection must be raised
specifically to be preserved on appeal. Mayfield, 59 Va. App. at 846 (“[T]he issue of striking a
juror for bias is distinct from the issue of striking a juror to maintain public confidence in the
judicial system. Thus, raising the former . . . does not preserve the latter for appeal.”); Blevins,
267 Va. at 296 (refusing to consider the public confidence issue because it was not raised in the
trial court); Townsend, 270 Va. at 332 (“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 [any implication that it may be raised on appeal for the first time] is expressly
rejected.”).6
Conclusion
Terry has not met the prongs of McDonough and therefore he was not entitled to a new
trial. The circuit court did not err in finding that Flowers was honest on voir dire. Similarly, the
circuit court found Flowers was impartial in hearing the case based on her testimony. The record
6
Even if the issue were preserved, under these unique and discrete facts, the public
confidence principle is not violated here. Allowing a juror to remain impaneled despite a
familial relationship to a witness may, in some cases, be sufficient to erode public confidence.
Barrett, 262 Va. at 826-27 (finding it was an abuse of discretion for the trial court to refuse to
strike a juror for cause when the juror was a brother of a police officer testifying as a witness for
the Commonwealth, even though the brother insisted he was impartial). However, Flowers was
only alleged to be related to a witness, Barnes, and the nature of their relationship was not
proven. This is insufficient to establish that Flowers’ position on the jury would erode public
confidence in the integrity of the criminal justice system. See Brooks, 41 Va. App. at 460-62
(disagreeing with appellant’s argument that a juror was disqualified, and inherently biased,
because her sister was married to the great-uncle of the victims, was the uncle of the victims’
father, and was a witness in the case). For non-familial relationships, the public confidence
principle requires a contemporaneous or continuing relationship, which was not proven here.
Perez, 40 Va. App. at 658-59 (finding no error where a juror remained on the jury, despite
knowing the prosecution’s detective through the detective’s prior investigation of a crime against
the juror’s daughter, because there was no “contemporaneous or continuing relationship”
between them).
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supports these conclusions. Therefore, we affirm the circuit court’s ruling denying the motion to
set aside the verdict.
Affirmed.
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