Frederick Joseph Palka, II v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 20, 2024
• Docket: 1716223
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Huff, Malveaux and Chaney Argued by videoconference

FREDRICK JOSEPH PALKA, II MEMORANDUM OPINION* BY v. Record No. 1716-22-3 JUDGE GLEN A. HUFF FEBRUARY 20, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Paul A. Dryer, Judge

Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.

Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following trial in the City of Waynesboro Circuit Court (the “trial court”), a jury convicted

Fredrick Joseph Palka, II (“appellant”) of involuntary manslaughter, in violation of Code

§ 18.2-36.1, and driving while under the influence of alcohol, in violation of Code § 18.2-266. On

appeal, appellant argues that the trial court erred by (1) excluding evidence of the decedent’s drug

and alcohol use and (2) screening appellant’s voir dire questions before jury selection. For the

following reasons, this Court affirms.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

On the evening of October 4, 2021, Daniel Summers was riding his motorcycle southeast

on Delphine Avenue in Waynesboro when the minivan in front of him, driven by Christina

Royston, made an abrupt U-turn. Summers crashed into the minivan’s rear bumper and “flew

forward off of the bike.” The bike remained in the middle of the southeast-bound lane. Royston

parked her minivan in her driveway near the accident site. When Summers approached Royston

to confront her, she “rush[ed] up on” him “aggressively” causing him to back into the street. As

Royston pursued Summers into the street she was struck by appellant’s vehicle.2 Summers

testified that the collision between appellant’s vehicle and Royston “happened so fast to where

there were no brakes applied.”

Bradley Green was traveling towards the accident site when he saw something in the road

“when [he] was fairly far away.”3 As he approached, he determined it was a motorcycle, some

debris, and a person—Summers—in the road. Green stopped his car and exited to see if

Summers needed assistance, at which time he heard Summers and Royston arguing.4 He then

saw Royston enter the roadway to engage with Summers before a car traveling westbound struck

her and continued driving down the road. Green testified that he “felt like the car . . . was

1 We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 2 Summers’ toe was also run over. 3 Multiple witnesses corroborated Green’s testimony that the objects and debris in the road could be seen from a fair distance away. 4 Multiple witnesses also testified that they saw Royston and Summers arguing on the side of the road. -2- slowing down, but then it became apparent that they weren’t going to stop or make an effort to

stop.”

Appellant was later found by law enforcement at a nearby gas station. He “appeared to

be pretty shaken up,” his vehicle showed extensive damage to the front windshield and bumper,

and he smelled of alcohol.5 After admitting to drinking approximately 15 minutes prior to the

collision, and failing multiple field sobriety checks, appellant was arrested for driving under the

influence of alcohol.

A 9:56 p.m. breath test conducted at the police station showed that he had a breath

alcohol content of 0.20 grams per 210 liters of breath. During a subsequent interview appellant

stated that he had four shots of some type of alcohol in his vehicle before driving home after

leaving work at 7:15 p.m. When discussing the collision, appellant stated that he did not see

anything in the road and that the first thing he noticed was something hitting his windshield. He

did not see any vehicles stopped in the road and acknowledged that, while he was not sure, there

might have been a second person in the area. He also admitted to drinking daily after work and

described his drive home as “being on cruise control.” A blood alcohol test conducted at

12:41 a.m. the next morning showed that appellant had a blood alcohol content of 0.199 by

volume.

Before trial, appellant moved to introduce a certificate of analysis showing that Royston

had ethanol (0.082 by volume), amphetamines, tetrahydrocannabinol (“THC”), and THC

carboxylic acid in her blood on the night of her death. The Commonwealth objected arguing that

such evidence was irrelevant. The trial court excluded this certificate finding that Royston’s

conduct—standing in the road while under the influence of drugs and alcohol—“was a

‘contributing cause’ of the accident, but not an independent, intervening cause.” The trial court

5 Appellant’s driver’s side mirror was also broken off. -3- further found that, even if the certificate of analysis was relevant, the likelihood of jury

confusion substantially outweighed the evidence’s probative value because it “would cause the

jury to believe that it is tasked with deciding whether [Royston] or [appellant] was more at

fault.” Appellant proffered the excluded evidence to the trial court and further proffered that, if

allowed, an expert witness would have testified about how the substances in Royston’s blood

would have affected her conduct.

At this same hearing, appellant objected to submitting his voir dire questions for advance

review by the trial court. He argued that the 2020 legislative amendments to Code § 19.2-262.01

do not permit the trial court to screen these questions because the statute “gives counsel . . . the

right to ask any person or juror directly any relevant question . . . but it does not permit the court

to intervene.” The trial court overruled his objection, finding that “the scope and grounds of jury

examination” remained “substantially the same” as before the amendments and that earlier

caselaw allowed for advance screening. After conducting voir dire, but before the jury was

seated, appellant renewed his objection noting that the trial court had struck one of his proposed

questions.6 The trial court again overruled appellant’s objection, explaining that the struck

question—asking “if there was anything else that any of the jurors could think of that would

render them incapable of rendering a fair and impartial decision”—was “overly broad.” The trial

court then seated the jury. As part of the evidence at trial, the parties stipulated that Royston

died of “blunt force trauma to the head and extremities” caused when appellant struck her with

his vehicle. The Commonwealth did not present any additional evidence on causation. The jury

found appellant guilty of involuntary manslaughter and driving while under the influence. The

6 Appellant’s proposed questions and the trial court’s ruling on those questions are not part of the record on appeal. -4- trial court sentenced appellant to 10 years and 12 months’ imprisonment with 5 years, 11

months, and 25 days suspended.

This appeal followed.

ANALYSIS

I. Admissibility of Evidence

Appellant argues the trial court erred by excluding the evidence of Royston’s intoxication

at the time of the incident. “It is well-settled that ‘[d]ecisions regarding the admissibility of

evidence “lie within the trial court’s sound discretion and will not be disturbed on appeal absent

an abuse of discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021)

(alteration in original) (quoting Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)).

“A court has abused its discretion if its decision was affected by an error of law or was one with

which no reasonable jurist could agree.” Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022)

(citing Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). Relevant evidence is “evidence

having any tendency to make the existence of any fact in issue more probable or less probable

than it would be without the evidence.” Va. R. Evid. 2:401. Generally, evidence must be

relevant to be admissible. Va. R. Evid. 2:402. Even relevant evidence can be excluded if “the

probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice,

or (ii) its likelihood of confusing or misleading the trier of fact.” Va. R. Evid. 2:403(a).

Appellant argues that evidence of Royston’s alcohol and drug use was relevant to proving

that her conduct was an intervening cause of her death. To support a conviction under Code

§ 18.2-36.1, the Commonwealth was required to prove “a causal connection between

[appellant’s] intoxication” and Royston’s death. Hall v. Commonwealth, 32 Va. App. 616, 632

(2000) (en banc) (quoting Pollard v. Commonwealth, 20 Va. App. 94, 99 (1995)). Royston’s

conduct can exonerate appellant only if it “amount[ed] to an independent, intervening act” that

-5- “alone caus[ed] the fatal injury.” Hubbard v. Commonwealth, 243 Va. 1, 14 (1992) (citing Mayo

v. Commonwealth, 218 Va. 644, 647 (1977)). The act must not be “reasonably foreseeable” to

qualify as an intervening act. Hawkins v. Commonwealth, 64 Va. App. 650, 655 (2015) (quoting

Gallimore v. Commonwealth, 246 Va. 441, 447 (1993)). Mere contributory negligence, by

contrast, “has no place in a case of involuntary manslaughter.” Hall, 32 Va. App. at 632

(quoting Bell v. Commonwealth, 170 Va. 597, 616 (1938)).

The trial court did not abuse its discretion in excluding the certificate of analysis

pertaining to Royston. Appellant’s intervening cause theory is that Royston, while intoxicated,

ran in front of appellant’s car without time for him to stop, causing her death independent of any

fault by appellant. Royston’s essential conduct is uncontested, however. The Commonwealth

did not dispute that Royston ran into the road shortly before appellant hit her. In other words, the

parties informed the jury of Royston’s relevant conduct that formed the crux of appellant’s

defense. The trial court properly held that why Royston ran into the street—whether due to

intoxication or something else—was irrelevant to any jury consideration about the legal effect of

her actions. Accordingly, the trial court did not abuse its discretion in determining that the

certificate of analysis did not make appellant’s defense any more or less likely than without the

evidence.

Appellant’s attempt to distinguish Hubbard is unavailing. Indeed, the case for exclusion

is even stronger here than in Hubbard. There, the Supreme Court upheld the trial court’s

exclusion of evidence concerning the blood alcohol content of another driver who had been

killed in an accident with the defendant. Hubbard, 243 Va. at 10-15. But the trial court in

Hubbard had excluded evidence not only of the victim’s level of impairment but also evidence

that the victim had driven erratically because the victim’s conduct was in dispute. Id. at 11. The

parties disputed, for example, whether the victim was driving in the lane of oncoming traffic at

-6- the time of the accident. Id. at 12. In affirming, the Supreme Court reasoned that evidence of

the victim’s impairment did no more than support the speculative “possibility” that the victim

had been driving erratically and, in any event, would not prove that the defendant could not still

have taken evasive action to avoid the collision. Id. at 13. Appellant is correct that, in this case,

the evidence he seeks would not fuel speculation about whether Royston acted erratically. But

that is because, unlike in Hubbard, Royston’s erratic conduct is undisputed.7 Accordingly, this

Court concludes that the trial court did not abuse its discretion by excluding the toxicology

II. Voir Dire

Appellant contends that the trial court improperly reviewed his voir dire jury questions

prior to voir dire of the jury panel. In 2020, the General Assembly enacted Code § 19.2-262.01,

which provides in relevant part, that:

7 Appellant also errantly relies on Williams v. Commonwealth, 228 Va. 347 (1984), and Miller v. Commonwealth, No. 1776-13-1 (Va. Ct. App. Oct. 28, 2014). In Williams, the Supreme Court upheld the trial court’s refusal of a jury instruction stating that the jury could find the decedent’s “intoxication and actions” to be the “proximate cause of his death.” 228 Va. at 348-49. The Court held that the proposed instruction usurped the factfinder’s prerogative to the extent it assumed intoxication and that other instructions adequately explained the concept of intervening cause. Id. Nothing in Williams aids appellant’s case. Similarly, Miller is an unpublished case from this Court concerning the exclusion of a malicious wounding victim’s BAC at trial when the victim had been riding a motorcycle and was allegedly struck by the defendant in a road rage incident. Miller, slip op. at 2-4. This Court reversed the exclusion of the Miller victim’s BAC at the time of the accident, finding “the evidence [about the cause of the accident] was largely circumstantial” and the victim’s BAC “had a logical tendency to prove or disprove whether the [defendant] caused the accident that resulted in [the victim’s] injuries, or whether [the victim’s] own conduct was an ‘independent, intervening’ cause of the crash.” Id. at 5-6 (citing Hubbard, 243 Va. at 14). While unpublished opinions may be cited as informative and “considered for their persuasive value”—Miller is neither. Smith v. Commonwealth, 78 Va. App. 371, 383 n.4 (2023) (quoting Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012)); Rule 5A:1(f). The Miller victim was operating a motorcycle at the time of the accident and there was conflicting testimony as to the circumstances at the time of the accident. Miller, slip op. at 6. Here, Royston was on foot and multiple witnesses testified to appellant’s failure to slow down prior to, or stop after, the collision. Because the facts here are distinguishable from Miller, and because the collision here had multiple witnesses, Miller is neither informative nor persuasive. -7- In any criminal case, the court and counsel for either party shall have the right to examine under oath any person who is called as a juror . . . and shall have the right to ask such person or juror directly any relevant question to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case.

This language now substantially tracks the language in Code § 8.01-358, which governs voir dire

in civil cases. Appellant argues that this law prohibits the trial court from screening counsel’s

jury questions before voir dire. He admits that “the terms of the Code section do not expressly

prohibit” advance screening but nonetheless argues that “the General Assembly meant to grant

attorneys greater autonomy in voir dire.” This Court reviews questions of statutory interpretation

de novo. Focke v. Commonwealth, 77 Va. App. 366, 372 (2023) (citing Commonwealth v.

Leone, 286 Va. 147, 150 (2013)).

Appellant emphasizes that the Code allows an attorney to ask a potential juror “any

relevant question.” While he stresses the word “any,” this Court could just as easily stress the

word “relevant.” Such language plainly leaves open the possibility that a trial court may prohibit

irrelevant questions. Indeed, appellant submits that the proper procedure would have been for

opposing counsel to object during voir dire to any potentially problematic questions. Nothing in

Code § 19.2-262.01 requires this procedure. Appellant does not explain why the trial court’s

practice of addressing concerns about specific voir dire questions before voir dire impaired his

rights more than if the trial court addressed these same concerns during voir dire.8 Nor does he

identify any relevant questions that the trial court excluded, rendering any potential error

harmless. See Haas v. Commonwealth, 299 Va. 465, 543 (2021) (noting that, when evaluating

non-constitutional harmless error, this Court “determine[s] whether there has been a fair trial on

the merits and whether substantial justice has been reached” (alteration in original)).

8 In fact, appellant concedes that “the policy concerns raised by [the] trial court were important.” Policy concerns were to allow the trial court more time to resolve disputes and to make the jury selection process “more orderly and efficient” by not disrupting it with objections. -8- Accordingly, the trial court did not commit reversible error by requiring the parties to submit

their voir dire questions before the trial date.

CONCLUSION

For the foregoing reasons, this Court affirms the judgment of the trial court.

Affirmed.

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