COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Overton Argued at Alexandria, Virginia
RICHARD RUSH MURRAY, JR. MEMORANDUM OPINION * BY v. Record No. 0874-00-4 JUDGE NELSON T. OVERTON APRIL 10, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Henry E. Hudson, Judge
David M. Hall (Phillips, Beckwith, Hall & Chase, on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Richard Rush Murray, Jr. (appellant) was convicted of robbery
and use of a firearm in the commission of robbery. On appeal, he
contends the trial court erred by denying his motion to dismiss
juror Ray for cause. For the reasons that follow, we reverse the
convictions and remand for a new trial.
BACKGROUND
During voir dire, appellant's attorney asked if any member
of the venire had been a victim of a crime. The following
exchange took place:
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. JUROR RAY: I was held up by gunpoint about ten years ago when I lived in Washington, D.C. walking home from work. And I could find myself having difficulty if – is it Ms. Gomez; is that her name.
[DEFENSE COUNSEL]: Uh-huh.
JUROR RAY: If she recounted and had any kind of similar – I don't know the situation --
[DEFENSE COUNSEL]: Right, I understand that.
JUROR RAY: I think it was at a store. I don't even – I'm not sure – but mine was outside and, yes, very upsetting.
[DEFENSE COUNSEL]: So you think that would affect your ability to be impartial?
JUROR RAY: It could if her – if her recant [sic] is similar in any way, yes.
[DEFENSE COUNSEL]: And you think that would affect your --
JUROR RAY: Very up – I'm upset right now thinking about it.
[DEFENSE COUNSEL]: I can tell. I'm sorry. And I don't mean – you know, that is certainly not the purpose here.
JUROR RAY: And the person that did this to me was never found so --
[DEFENSE COUNSEL]: That also might --
JUROR RAY: -- and so I think – I think it's very important to bring such cases – any case to trial. And I would be very, you know, pleased to be on a jury for a criminal trial but I think this crime would be – I could be somewhat biased.
Defense counsel approached the bench and stated, "I didn't
really go into great detail because I can tell she's upset but I
- 2 - do think it's going to affect – I mean, I would make a motion to
strike her."
The prosecutor and trial court questioned Ray in an attempt
to rehabilitate her. When Ray indicated that she "may have an
inclination to believe the" victim if the facts of the crime
appear similar, the following colloquy took place:
THE COURT: Well, there's no question –- I don't think there is going to be a lot of question that she –- that a robbery occurred.
JUROR RAY: Oh, it's whether or not this --
[THE PROSECUTOR]: I think it's a whodunit.
JUROR RAY: -- is the person?
[THE PROSECUTOR]: Yes.
JUROR RAY: Well, then I guess – then I guess I would leave it up, of course, to the Court and the evidence that is presented to make sure that this is the right person.
The trial court's final question to Ray was whether she
felt her experience would affect her "judgment in this case so
that [she] couldn't be fair either to the prosecutor or to the
Defendant."
Ray responded, "I would think, yes, I could. I would
think, yes, I could. I am just very – I just wanted to be . . .
you know, very honest with you."
The trial court denied the motion.
- 3 - Preservation of the Issue on Appeal
After the trial court refused to strike Ray for cause, the
parties exercised peremptory strikes on the panel of twenty
potential jurors. Ray was one of eight members of the venire
panel that was peremptorily struck and excused. The remaining
twelve jurors were then sworn, after which the trial court asked
counsel if the panel was acceptable. Although appellant's
attorney indicated "for the record" that "this panel is
acceptable," she advised the trial court that she was
"preserving our exception that we noted earlier."
Relying on Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d
785 (1989), and Buchanan v. Commonwealth, 238 Va. 389, 384
S.E.2d 757 (1989), the Commonwealth contends appellant failed to
preserve the issue for appellate review. We disagree.
An alleged error is sufficiently preserved for
consideration on appeal if "at the time the ruling or order of
the court is made or sought, [a party] makes known to the court
the action which he desires the court to take or his objections
to the action of the court and his grounds therefor." Code
§ 8.01-384. "The primary purpose of requiring timely and
specific objections is to afford the trial judge a fair
opportunity to rule intelligently on the issues presented, thus
avoiding unnecessary appeals and reversals." Rodriguez v.
Commonwealth, 18 Va. App. 277, 284, 443 S.E.2d 419, 424 (1994)
(en banc) (citation omitted).
- 4 - In Spencer, the defendant only objected to questions or
limitations on questions asked of individual jurors during voir
dire. 238 Va. at 306, 384 S.E.2d at 792-93. Spencer's
attorney, however, failed to object to the jurors being sworn
and seated. Id. at 306, 384 S.E.2d at 793.
In Buchanan, the Supreme Court refused to address the
merits of Buchanan's challenge to "the trial court's seating of
prospective jurors Garrett and Barton" because Buchanan
"expressly accepted both jurors." 238 Va. at 404, 384 S.E.2d at
766 (applying Rule 5:25).
Here, appellant's attorney challenged Ray for cause during
voir dire. Moreover, the fact that appellant accepted the panel
that did not include juror Ray did not negate the earlier
challenge or waive the objection. Furthermore, appellant
renewed the objection when accepting the panel without Ray.
Because appellant timely moved to strike Ray for cause and
afforded the trial court a fair opportunity to rule
intelligently on the issue, and because appellant renewed that
motion even though Ray had been peremptorily stricken from the
panel, appellant did not waive his objection to seating Ray so
as to bar appellate review.
Analysis
Code §§ 8.01-357 and 8.01-358 entitle an accused to a panel
of jurors free from exception before any party exercises
peremptory challenges. See Brown v. Commonwealth, 33 Va. App.
- 5 - 296, 305-06 & n.2, 533 S.E.2d 4, 8 & n.2 (2000) (explaining that
error in failing to strike juror for cause is not harmless)
(citing Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87,
90 (1980)).
"[W]e review a trial court's decision whether to strike a
prospective juror for cause for an abuse of discretion and that
ruling will not be disturbed on appeal unless it appears from
the record that the trial court's action constitutes manifest
error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531
S.E.2d 1, 6 (2000). "In determining whether a prospective juror
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Overton Argued at Alexandria, Virginia
RICHARD RUSH MURRAY, JR. MEMORANDUM OPINION * BY v. Record No. 0874-00-4 JUDGE NELSON T. OVERTON APRIL 10, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Henry E. Hudson, Judge
David M. Hall (Phillips, Beckwith, Hall & Chase, on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Richard Rush Murray, Jr. (appellant) was convicted of robbery
and use of a firearm in the commission of robbery. On appeal, he
contends the trial court erred by denying his motion to dismiss
juror Ray for cause. For the reasons that follow, we reverse the
convictions and remand for a new trial.
BACKGROUND
During voir dire, appellant's attorney asked if any member
of the venire had been a victim of a crime. The following
exchange took place:
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. JUROR RAY: I was held up by gunpoint about ten years ago when I lived in Washington, D.C. walking home from work. And I could find myself having difficulty if – is it Ms. Gomez; is that her name.
[DEFENSE COUNSEL]: Uh-huh.
JUROR RAY: If she recounted and had any kind of similar – I don't know the situation --
[DEFENSE COUNSEL]: Right, I understand that.
JUROR RAY: I think it was at a store. I don't even – I'm not sure – but mine was outside and, yes, very upsetting.
[DEFENSE COUNSEL]: So you think that would affect your ability to be impartial?
JUROR RAY: It could if her – if her recant [sic] is similar in any way, yes.
[DEFENSE COUNSEL]: And you think that would affect your --
JUROR RAY: Very up – I'm upset right now thinking about it.
[DEFENSE COUNSEL]: I can tell. I'm sorry. And I don't mean – you know, that is certainly not the purpose here.
JUROR RAY: And the person that did this to me was never found so --
[DEFENSE COUNSEL]: That also might --
JUROR RAY: -- and so I think – I think it's very important to bring such cases – any case to trial. And I would be very, you know, pleased to be on a jury for a criminal trial but I think this crime would be – I could be somewhat biased.
Defense counsel approached the bench and stated, "I didn't
really go into great detail because I can tell she's upset but I
- 2 - do think it's going to affect – I mean, I would make a motion to
strike her."
The prosecutor and trial court questioned Ray in an attempt
to rehabilitate her. When Ray indicated that she "may have an
inclination to believe the" victim if the facts of the crime
appear similar, the following colloquy took place:
THE COURT: Well, there's no question –- I don't think there is going to be a lot of question that she –- that a robbery occurred.
JUROR RAY: Oh, it's whether or not this --
[THE PROSECUTOR]: I think it's a whodunit.
JUROR RAY: -- is the person?
[THE PROSECUTOR]: Yes.
JUROR RAY: Well, then I guess – then I guess I would leave it up, of course, to the Court and the evidence that is presented to make sure that this is the right person.
The trial court's final question to Ray was whether she
felt her experience would affect her "judgment in this case so
that [she] couldn't be fair either to the prosecutor or to the
Defendant."
Ray responded, "I would think, yes, I could. I would
think, yes, I could. I am just very – I just wanted to be . . .
you know, very honest with you."
The trial court denied the motion.
- 3 - Preservation of the Issue on Appeal
After the trial court refused to strike Ray for cause, the
parties exercised peremptory strikes on the panel of twenty
potential jurors. Ray was one of eight members of the venire
panel that was peremptorily struck and excused. The remaining
twelve jurors were then sworn, after which the trial court asked
counsel if the panel was acceptable. Although appellant's
attorney indicated "for the record" that "this panel is
acceptable," she advised the trial court that she was
"preserving our exception that we noted earlier."
Relying on Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d
785 (1989), and Buchanan v. Commonwealth, 238 Va. 389, 384
S.E.2d 757 (1989), the Commonwealth contends appellant failed to
preserve the issue for appellate review. We disagree.
An alleged error is sufficiently preserved for
consideration on appeal if "at the time the ruling or order of
the court is made or sought, [a party] makes known to the court
the action which he desires the court to take or his objections
to the action of the court and his grounds therefor." Code
§ 8.01-384. "The primary purpose of requiring timely and
specific objections is to afford the trial judge a fair
opportunity to rule intelligently on the issues presented, thus
avoiding unnecessary appeals and reversals." Rodriguez v.
Commonwealth, 18 Va. App. 277, 284, 443 S.E.2d 419, 424 (1994)
(en banc) (citation omitted).
- 4 - In Spencer, the defendant only objected to questions or
limitations on questions asked of individual jurors during voir
dire. 238 Va. at 306, 384 S.E.2d at 792-93. Spencer's
attorney, however, failed to object to the jurors being sworn
and seated. Id. at 306, 384 S.E.2d at 793.
In Buchanan, the Supreme Court refused to address the
merits of Buchanan's challenge to "the trial court's seating of
prospective jurors Garrett and Barton" because Buchanan
"expressly accepted both jurors." 238 Va. at 404, 384 S.E.2d at
766 (applying Rule 5:25).
Here, appellant's attorney challenged Ray for cause during
voir dire. Moreover, the fact that appellant accepted the panel
that did not include juror Ray did not negate the earlier
challenge or waive the objection. Furthermore, appellant
renewed the objection when accepting the panel without Ray.
Because appellant timely moved to strike Ray for cause and
afforded the trial court a fair opportunity to rule
intelligently on the issue, and because appellant renewed that
motion even though Ray had been peremptorily stricken from the
panel, appellant did not waive his objection to seating Ray so
as to bar appellate review.
Analysis
Code §§ 8.01-357 and 8.01-358 entitle an accused to a panel
of jurors free from exception before any party exercises
peremptory challenges. See Brown v. Commonwealth, 33 Va. App.
- 5 - 296, 305-06 & n.2, 533 S.E.2d 4, 8 & n.2 (2000) (explaining that
error in failing to strike juror for cause is not harmless)
(citing Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87,
90 (1980)).
"[W]e review a trial court's decision whether to strike a
prospective juror for cause for an abuse of discretion and that
ruling will not be disturbed on appeal unless it appears from
the record that the trial court's action constitutes manifest
error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531
S.E.2d 1, 6 (2000). "In determining whether a prospective juror
should have been excluded for cause, we review the entire voir
dire, rather than a single question and answer." Barnabei v.
Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996)
(citation omitted). "Every 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.'" Clements v. Commonwealth, 21 Va. App. 386, 392, 464
S.E.2d 534, 537 (1995) (quoting Breeden v. Commonwealth, 217 Va.
297, 298, 227 S.E.2d 734, 735 (1976)). "When a juror has
expressed a disqualifying view during voir dire, the
clarification or absence of disqualification must emanate from
the juror in order to establish that the juror is impartial and
is free of bias." Sizemore v. Commonwealth, 11 Va. App. 208,
212, 397 S.E.2d 408, 410 (1990).
- 6 - Applying these principles to our review of the record, we
find that the questions posed to juror Ray by the trial court and
the prosecutor and her responses during the voir dire examination
failed to demonstrate that she could sit as an impartial and
unbiased juror in the case.
Ray became upset when she recalled being the victim of an
armed robbery, the same crime for which appellant was on trial.
She maintained throughout the voir dire that if there were any
similarities between the instant robbery and her robbery, she
would be inclined to believe the victim. Despite the trial
court's attempt to assuage Ray's potential anxiety by explaining
that her sole role was to determine the robber's identity rather
than whether a robbery occurred, we find such a statement
improper and ineffective to determine impartiality. The
victim's credibility remained a substantial factor in the case
because she positively identified appellant as the robber. Even
after obtaining some assurance from Ray that she "guess[ed]
[she] would leave it up . . . to the Court," Ray equivocated in
her final response by stating that she "would think, yes, [she]
could" be impartial.
In summary, because Ray's responses to voir dire
questioning were ambiguous and equivocal, and because the
questions and comments used to rehabilitate her came not from
Ray, but from the prosecutor and the trial court, we hold that
the trial court erred in denying appellant's motion to dismiss
- 7 - Ray for cause. Because this violation is not harmless, see
Justus, 220 Va. at 975, 266 S.E.2d at 90, we reverse and remand
for a new trial if the Commonwealth be so advised.
Reversed and remanded.
- 8 -