Patrick J. Sweeney v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
PATRICK J. SWEENEY
MEMORANDUM OPINION * BY
v. Record No. 2196-98-4 JUDGE DONALD W. LEMONS
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Elwood Earl Sanders, Jr., Appellate Defender
(S. Jane Chittom, Appellate Counsel; Public
Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Patrick Sweeney was tried and convicted by a jury on May
19, 1998 of statutory burglary and grand larceny. On appeal,
Sweeney contends the trial court abused its discretion by
denying his "suggestion" for additional examination of the jury
to determine if the prospective jurors were affected by the
comments of another prospective juror. For the reasons stated
below we find no reversible error and affirm the convictions.
The trial court asked if any prospective jurors knew of any
reason why they could not give a fair and impartial trial based
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"solely upon the law and evidence." Prospective juror Moskowitz
responded affirmatively, stating, "I don't believe I represent
either the defendant or the plaintiffs in this trial nor do the
other people sitting here." Moskowitz was asked to approach the
bench and indicated that he was not sure that he could give an
impartial trial because he saw "eighteen white faces sitting on
this . . . ." Moskowitz was then told by the judge, at the
Commonwealth's urging and in the presence of both of the
defendant's counsel, to "keep his voice down." Moskowitz then
explained that he had lived in Africa for a time, had previously
sat on two trials in the District of Columbia and felt that
those experiences would affect his ability to try the case. The
parties agreed that Moskowitz should be stricken for cause.
Voir dire continued, and defense counsel asked the jurors
if any of them had been a victim of a crime. Juror Olson
responded affirmatively, explaining that her home had been
burglarized, that the experience had been "distressful" and that
the police never found the burglar. The court asked Olson to
approach the bench and questioned her further. Olson stated:
"I will tell you that the person who was identified that broke
into our house but never did – was black. They never could
locate him, but they knew who it was."
Following that examination, defense counsel raised the
issue of whether Olson might have been speaking loudly enough
for other jurors to hear. The court asked defense counsel if it
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should "inquire of the entire panel whether they indeed heard
anything that was said." Defense counsel stated, "That is
certainly one way to deal with it, . . . ." When asked by the
court whether defense counsel had a better way to deal with the
problem, counsel stated, "No." The court explained, "What I am
considering, but have not decided, would be to frame a question
asking whether anyone heard what Ms. Olson said here at the
bench, and then, if someone did, then what we'd have to do is
follow that up." Defense counsel "suggested" that the court
should also ask whether Moskowitz's comments were heard. The
court refused this suggestion stating, "If you had wanted to do
that, you might have done it earlier, [ ], and you did not." No
reasons were given to substantiate why Moskowitz's statements,
if heard, were potentially prejudicial to the defendant. The
trial judge then asked whether any of the jurors had heard
Olson's statements. Those jurors who indicated they had were
examined further.
Sweeney contends on appeal that the trial court abused its
discretion when it did not allow him to examine potential jurors
concerning whether they heard the remarks by Moskowitz at the
bench conference. Counsel's "suggestion" that the court ask the
potential jurors if they heard Moskowitz's statements was not
untimely. The panel had not been sworn and seated and any
problem with the seating of a particular juror could have been
resolved at that time.
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Furthermore, we find that the trial judge was given the
opportunity to consider the issue and take timely corrective
action, if necessary. See Robinson v. Commonwealth, 13 Va. App.
574, 576, 413 S.E.2d 885, 886 (1992). For the purposes of Rule
5A:18, counsel's "suggestion" was sufficient to preserve the
claim of error on appeal.
However, we find no error in the refusal to question the
venire about Moskowitz's remarks. First, appellant's counsel
acknowledged that Moskowitz did not speak as loudly as Olson, a
fact that made it less likely that the remarks were overheard
and that prejudice could result. Second, appellant did not
proffer at trial, nor advance on appeal, a plausible reason why
Moskowitz's remarks, if heard, would prejudice the venire.
Third, all venire members who may possibly have overheard the
comments stated that they could give appellant a fair and
impartial trial. What prejudice might have existed if the
comments had been heard are speculative at best. "Questions
asked on voir dire are subject to the control of the trial
court. No court is required to ask questions that are tied only
speculatively to prejudice." Bennett v. Commonwealth, 236 Va.
448, 469-70, 374 S.E.2d 303, 316-17 (1988) (citations omitted).
Finding no reversible error, the convictions are affirmed.
Affirmed.
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