Cory DeLaurencio v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 20, 2000
• Docket: 2497981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Lemons ∗ Argued at Chesapeake, Virginia

CORY DeLAURENCIO MEMORANDUM OPINION ∗∗ BY v. Record No. 2497-98-1 JUDGE DONALD W. LEMONS JUNE 20, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge

Andrew G. Wiggin (Donald E. Lee, Jr. and Associates, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Cory DeLaurencio was convicted of capital murder, robbery

and use of a firearm in the commission of a felony. On appeal,

he contends (1) the trial court erred by refusing to strike a

juror for cause and (2) the evidence was insufficient to support

the convictions for robbery and murder during the commission of

a robbery. Finding no reversible error, we affirm the

convictions.

∗ Justice Lemons prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. BACKGROUND

At approximately 11:00 p.m. on January 14, 1996, Traibeon

Thomas was driving eastbound on Route 44. He had trouble with a

tire and pulled his vehicle over to the side of the road, near

the Laskin Road exit in Virginia Beach. Carl Gilliam, who was

also driving eastbound on Route 44, stopped his vehicle to

assist Thomas. Gilliam drove Thomas to his apartment where

Thomas called a tow truck. Gilliam then took Thomas to an ATM

to obtain money to pay for the tow truck. When they returned to

Thomas' car, Gilliam saw a white Honda Civic parked in front of

the vehicle. Gilliam stopped his car in front of the Honda.

According to Gilliam, Thomas said, "it looked like somebody was

in his car." Thomas walked up and confronted DeLaurencio, who

then fatally shot Thomas in the head. Gilliam drove off, called

"911" and reported the incident.

Shortly after the incident, DeLaurencio was arrested and

taken into custody. He admitted that he and Aaron Merritt had

broken into the car to remove the speakers and were in the

process of removing them when Thomas returned. Thomas told

DeLaurencio to "rise up out of the car." DeLaurencio admitted

backing out of the car, pulling a gun out of his pocket, and

shooting Thomas. DeLaurencio said he then returned to the Honda

where his friend Merritt was waiting. After speaking with

Merritt, DeLaurencio returned to where Thomas was lying and took

his wallet. Merritt and DeLaurencio drove off in the Honda.

- 2 - When the police examined Thomas' vehicle, they discovered that

the back area in the rear seat had been pulled away from the

frame of the vehicle exposing two of the large speakers.

DeLaurencio was indicted by a grand jury for capital murder

in violation of Code § 18.2-31(4), robbery in violation of Code

§ 18.2-58, and (3) use of a firearm in the commission of a

felony in violation of Code § 18.2-53.1. On December 3, 1996,

the robbery indictment was amended by adding "or attempted

robbery."

After all the evidence was presented, the jury received a

capital murder instruction predicated only on robbery and

omitting attempted robbery. DeLaurencio was convicted on all

charges and sentenced to a term of life for capital murder,

twenty years for robbery and three years for the use of a

firearm in the commission of a felony.

II. MOTION TO STRIKE PROSPECTIVE JUROR

The constitutional right of an accused to a trial by jury

is only meaningful if that jury is impartial. See U.S. Const.

amends. VI and XIV; Va. Const. art. 1, § 8. This constitutional

guarantee is reinforced by legislative enactment and by the

Rules of the Supreme Court of Virginia: veniremen must "stand

indifferent in the cause." Code § 8.01-357; see Breeden v.

Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976);

Swanson v. Commonwealth, 18 Va. App. 182, 184-85, 442 S.E.2d

702, 704 (1994) (citation omitted); Rule 3A:14.

- 3 - "'Trial courts, as the guardians of this fundamental right,

have the duty to procure an impartial jury.'" Brown v.

Commonwealth, 28 Va. App. 315, 326-27, 504 S.E.2d 399, 404

(1998) (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621,

454 S.E.2d 363, 364 (1995)). Accordingly, "the trial judge must

probe the conscience and mental attitude of the prospective

jurors to ensure impartiality." Griffin, 19 Va. App. at 621,

454 S.E.2d at 364. A juror holding "a preconceived view that is

inconsistent with an ability to give an accused a fair and

impartial trial, or who persists in a misapprehension of law

that will render him incapable of abiding the court's

instructions and applying the law, must be excluded for cause."

Sizemore v. Commonwealth, 11 Va. App. 208, 211, 397 S.E.2d 408,

410 (1990).

"'[I]n determining whether a prospective juror should have

been excluded for cause, we review the entire voir dire, rather

than a single question and answer.'" Brown, 28 Va. App. at 327,

504 S.E.2d at 404 (quoting Barnabei v. Commonwealth, 252 Va.

161, 173, 477 S.E.2d 270, 277 (1996)). Whether a juror is

impartial is a question of historical fact. See Wainwright v.

Witt, 469 U.S. 412, 428 (1985). On appeal, a trial judge's

decision to seat a juror is entitled to great deference, and the

decision will not be overturned unless the error is manifest.

See McGill v. Commonwealth, 10 Va. App. 237, 241, 391 S.E.2d

597, 600 (1990).

- 4 - Here, DeLaurencio contends that the prospective juror

should have been struck for cause based on his "prejudice

relating to the presumption of innocence" and based on his

"prejudice relating to bias toward law enforcement witnesses."

We disagree and hold that the trial court did not err by not

striking this prospective juror for cause.

"Even though a prospective juror may hold preconceived

views, opinions, or misconceptions, 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." Griffin, 19 Va. App. at 621, 454 S.E.2d at

364. The rationale behind this rule of law has been stated by

the Supreme Court of the United States:

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). The Supreme Court

of Virginia observed:

- 5 - "In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality."

Briley v. Commonwealth, 222 Va. 180, 184-85, 279 S.E.2d 151, 154

(1981) (quoting Reynolds v. United States, 98 U.S. 145, 155-56

(1878)). Therefore, "[t]he constitutional guarantee of an

impartial jury does not contemplate excluding those who have

read or heard news accounts concerning the case or even

exclusion of those who have formed an opinion based on such

accounts." Wilmoth v. Commonwealth, 10 Va. App. 169, 173, 390

S.E.2d 514, 516 (1990).

Accordingly, jurors are not required to be totally ignorant

of the facts and issues involved in a case on which they sit.

See Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358

(1987), cert. denied, 485 U.S. 1015 (1988). It is sufficient if

they can set aside any impression or opinion and decide the case

solely on the evidence presented at trial. See id. This

ability to set aside any impression or opinion garnered from

newspaper or other media sources, however, must be demonstrated

- 6 - beyond a reasonable doubt. See Gosling v. Commonwealth, 7 Va.

App. 642, 647, 376 S.E.2d 541, 544 (1989). Accordingly, any

reasonable doubt as to a juror's qualifications must be resolved

in favor of the accused. See Breeden, 217 Va. at 298, 227

S.E.2d at 735.

Here, the prospective juror acknowledged awareness of

accounts of the crime in the media but his awareness was

coextensive with the brief summary of allegations provided by

the trial judge at the commencement of voir dire. Although he

characterized the media's account as "prejudging" the accused,

the prospective juror repeatedly stated that he would base his

decision upon the evidence presented at trial.

Additionally, viewing the voir dire of the prospective

juror as a whole, it is clear that he was committed to hearing

the evidence and observing the demeanor of witnesses before

making determinations of credibility. The juror dispelled any

notion that the status of being a police officer would per se

render the officer's testimony more believable than contrary

testimony by one who was not a police officer. In the

hypothetical "swearing contest" posed by defense counsel, the

prospective juror stated, "it would depend on who the individual

is and what the facts were." A person's occupation is not

excluded from the mix of facts that are permissible in

determining credibility.

- 7 - It is ironic that the entire colloquy with the prospective

juror over credibility of police testimony took place when the

defendant's theory of the case did not involve any credibility

determinations based upon testimony by police officers. The

defendant had confessed to his involvement in the shooting and

to taking the victim's wallet. At trial, he argued that he did

not intend to take the victim's wallet when he shot the victim

and that the killing and the taking of the wallet were two

separate acts. In both his motion to strike and in his motion

to set aside the verdict, he argued that the evidence was

insufficient to show that the killing occurred during the

commission of a robbery. From the identification of potential

witnesses for the defense, it is clear that the hypothetical

"swearing contest" with a police officer was not anticipated and

was not part of the defendant's theory of the case.

DeLaurencio's reliance upon Brown v. Commonwealth, 29 Va.

App. 199, 510 S.E.2d 751 (1999), is misplaced. In Brown, one

juror had been the victim of an attempted abduction and possible

sexual assault and expressed reservations about her ability to

set aside her personal experiences in a trial involving similar

charges. The second juror in Brown could not embrace the

presumption of innocence. Neither of the issues in Brown are

implicated in this case.

- 8 - Upon review of the voir dire as a whole, we find that the

trial judge did not err by refusing to strike this prospective

juror for cause.

III. ROBBERY

The issue on appeal as granted by this Court is as follows:

Whether the trial court committed reversible error by failing to grant appellant's motions to strike and to set aside the jury's verdicts and by finding the evidence sufficient that appellant committed robbery sufficient for a finding of guilty for robbery under Code § 18.2-31(4).

In DeLaurencio's motion to strike, he maintained that a larceny

of the wallet took place but that the evidence was insufficient

to sustain a conviction for robbery. Additionally, DeLaurencio

maintains that "the killing and the robbery were two separate

acts"; consequently, the evidence was "insufficient to show that

the killing occurred in the commission of a robbery or attempted

Robbery is "the taking, with intent to steal, of the

personal property of another, from his person or in his

presence, against his will, by violence or intimidation." Jones

v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939)

(citations and quotation marks omitted). "The violence or

intimidation must precede or be concomitant with the taking."

Whitley v. Commonwealth, 223 Va. 66, 73, 286 S.E.2d 162, 166

(1982). Additionally, "[t]he intent to steal and the taking

must coexist. And the offense is not robbery unless the animus

- 9 - furandi was conceived before or at the time the violence was

committed." Branch v. Commonwealth, 225 Va. 91, 94-95, 300

S.E.2d 758, 759 (1983).

The robbery instruction given by the trial court without

objection provided:

The Court instructs the jury that the defendant is charged with the crime of robbery. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

1. That the defendant intended to steal; and 2. That a wallet and United States currency was taken; and 3. That the taking was from Traibeon Thomas or in his presence; and 4. That the taking was against the will of the owner or possessor; and 5. That the taking was accomplished by violence to the person.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty but you shall not fix the punishment until your verdict has been returned and further evidence is heard by you.

If you find that from the evidence that the Commonwealth has failed to prove beyond a reasonable doubt any one or more of the elements of the offense, then you shall find the defendant not guilty.

DeLaurencio maintains that he did not have the requisite

intent to steal the wallet prior to or concomitant with the act

of violence. However, the object of his intent is immaterial

under the instruction approved by DeLaurencio. He concedes that

- 10 - he came to the disabled vehicle with the intent to steal the

speakers. Further, he concedes that a wallet with currency was

taken from the victim against his will. The violence preceded

the taking. "[W]here the violence against the victim and the

trespass to his property combine in a continuing unbroken

sequence of events, the robbery itself continues as well for the

same period of time." Briley v. Commonwealth, 221 Va. 532, 543,

273 S.E.2d 48, 55 (1980). Here, DeLaurencio's mental intent to

steal, the shooting, and the taking of the wallet are closely

connected in time, place, manner and causation. The evidence

was sufficient to support the jury's finding that a robbery

rather than a mere larceny occurred.

Finally, the Grand Jury indictment charged DeLaurencio,

[o]n or about January 14, 1996, did willfully, deliberately, and with premeditation, kill Traibeon L. Thomas, during the commission of robbery or attempted robbery.

Upon conclusion of the evidence, counsel and the trial judge

discussed jury instructions. Apparently, concerned that the

jury would be confused by the inclusion of "robbery or attempted

robbery" in the instruction, the trial judge allowed DeLaurencio

to choose which of the two circumstances would be offered to the

jury as a basis for liability for capital murder: attempted

robbery of the speakers or robbery of the wallet. We do not

express an opinion concerning the correctness of this procedure

because it is not before us on appeal. It is recited herein to

- 11 - explain how the jury was instructed. DeLaurencio chose the

robbery instruction, and attempted robbery was removed from the

jury's consideration.

DeLaurencio concedes that he took the victim's wallet. He

maintains, however, that "the killing and the robbery were two

separate acts" and that the evidence was "insufficient to show

that the killing occurred in the commission of a robbery." The

Commonwealth argues, "[t]he defendant intended to steal from the

victim before the killing and did steal from him before or after

the killing through the use of force. He killed during the

commission of a robbery."

In Quesinberry v. Commonwealth, 241 Va. 364, 402 S.E.2d

218, cert. denied, 502 U.S. 834 (1991), a larceny became a

robbery because the victim interrupted the theft and was killed

in a continuing unbroken sequence of events that were the

"interdependent objects of a common criminal design." Id. at

374, 402 S.E.2d at 224. The jury in Quesinberry was instructed

concerning robbery and found that a robbery occurred.

The Virginia Supreme Court in Quesinberry revisited its

analysis in Briley, 221 Va. 532, 273 S.E.2d 48. It said,

In Briley, Linwood Briley and his cohorts stopped their victim outside a restaurant, robbed him at gunpoint, forced him into his own automobile, abducted him, and took him to an island located in the James River. Upon arrival at the island, approximately 15 to 20 minutes after the initial robbery, they shot him fatally. They drove away in his car, which they later stripped of parts

- 12 - and abandoned. We hold that the murder was closely related in time, place, and causal connection to the robbery, making it a part of the same criminal enterprise as a matter of law. Id. at 544, 273 S.E.2d at 56. Since Briley, we have affirmed convictions for capital murder during the commission of a robbery when the evidence was sufficient to support a conclusion that the killing and theft were interdependent objects of a common criminal design.

Quesinberry, 241 Va. at 373, 402 S.E.2d at 224 (citations

omitted).

In this case the murder and the robbery were closely

related in time and place and causation sufficient to say that

the murder and robbery were interdependent objects of a common

criminal design.

Finding no reversible error, the convictions for capital

murder, robbery and use of a firearm in the commission of a

felony are affirmed.

Affirmed.

- 13 -