                     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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