Bill Lewis Odom, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 16, 2000
• Docket: 0681992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Senior Judge Overton

BILL LEWIS ODOM, JR. MEMORANDUM OPINION * BY v. Record No. 0681-99-2 JUDGE NELSON T. OVERTON MAY 16, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge

(Cary B. Bowen; Bowen, Bryant, Champlin & Carr, on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Appellant was convicted of petit larceny, third offense. On

appeal, he argues that the trial court committed reversible error

in denying his motion to strike a juror for cause after his

response to a question in voir dire indicated a clear bias. We

disagree and affirm his conviction.

BACKGROUND

During voir dire, Mr. Durning indicated that he was a retired

military police officer. In response to a question by appellant's

counsel, Durning stated that he thought it was more likely than

not that a person charged was guilty. Appellant moved to strike

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Durning for cause. The trial court then asked Durning several

questions. Durning responded affirmatively that he could put

aside his background and "just be concerned with what is presented

from that witness box and be fair to both sides."

Appellant's counsel then asked Durning several leading

questions, and Durning responded that he did not think it was more

likely than not that a person charged was guilty. Durning also

stated that the initial question by appellant's counsel was

confusing. The trial court refused to remove Durning for cause,

and appellant used a peremptory strike to remove him from the

panel.

ANALYSIS

"Through voir dire and other competent evidence, the trial

court must examine the venirepersons for signs of a mind set that

would prevent or substantially impair the performance of the

duties of a juror in accordance with his instructions and his

oath." Swanson v. Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d

702, 704 (1994) (citation omitted). "Because the trial judge has

the opportunity . . . to observe and evaluate the apparent

sincerity, conscientiousness, intelligence, and demeanor of

prospective jurors first hand, the trial court's exercise of

judicial discretion in deciding challenges for cause will not be

disturbed on appeal, unless manifest error appears in the record."

Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358

(1987) (citation omitted). In reviewing a trial court's

- 2 - determination, the entire voir dire is examined, not just isolated

parts. See Swanson, 18 Va. App. at 186, 442 S.E.2d at 704

(citation omitted).

Durning initially responded affirmatively that he thought it

was more likely than not that a person charged was guilty. After

the trial judge explained the presumption of innocence, Durning

responded that he could put aside his background in the military

police and just be concerned with what was presented from the

witness box. Later, in response to a leading question by

appellant's counsel, Durning stated that he did not believe that

someone was guilty because they were charged. Durning also stated

that he understood that the court wanted fairness from him and

that he misunderstood the initial question by appellant's counsel.

Upon examination of the entire voir dire, the record does not

support a finding that the trial court abused its discretion in

refusing to exclude Durning for cause. Accordingly, appellant's

conviction is affirmed.

Affirmed.

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