                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Petty and McCullough
UNPUBLISHED


              Argued by teleconference


              ROBERT ELI BERNARD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 2252-13-3                                    CHIEF JUDGE GLEN A. HUFF
                                                                                  MARCH 31, 2015
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                                            William N. Alexander, II, Judge

                               Melissa P. Keen (Melissa P. Keen, P.C., on brief), for appellant.

                               Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                               Attorney General; Elizabeth C. Kiernan, Assistant Attorney
                               General, on brief), for appellee.


                     Robert Eli Bernard (“appellant”) appeals his conviction for distribution of

              methamphetamine, in violation of Code § 18.2-248. After a jury trial in the Circuit Court of

              Franklin County (“trial court”), appellant was sentenced to seventeen years’ incarceration and

              fined $50,000. On appeal, appellant asserts that the trial court erred because appellant “was

              deprived of his constitutional right to an impartial jury and fair trial due to prejudicial statements

              made in the presence of the venire unknown to [appellant] and his counsel.” For the following

              reasons, this Court affirms appellant’s conviction.

                                                       I. BACKGROUND

                     On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

              evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

              Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       Before appellant’s trial, appellant signed a letter indicating his intent to enter into a guilty

plea. Relying on appellant’s letter, the Commonwealth released all of its witnesses for the

scheduled trial on July 29, 2013. On the trial date, however, appellant informed the Commonwealth

that “he did not want to go through with the plea agreement.” The trial court informed the

Commonwealth that appellant’s case was “set with a jury” and would “be tried today and now.”

Before the clerk called the role of the venire in the courtroom,1 the Commonwealth had the

following conversation with the trial court:

                 THE COURT: Is Ms. Keen here?

                 MR. ALLEN: She is, Judge, she’s in the back. Judge, this was
                 originally set with a jury. We thought we had it resolved on a guilty
                 plea.

                 THE COURT: No, it’s set with a jury.

                 MR. ALLEN: Well, we had it resolved or we thought we did and - -

                 THE COURT: It’s set with a jury and it’s going to be tried today and
                 now.

                 MR. ALLEN: We may have some difficulties with that but - -

                 THE COURT: Well we’re going to have some difficulties with it
                 because it’s going to be tried with a jury.

                 MR. ALLEN: And that’s no problem at all but when we found out it
                 was going to be a plea we let our witnesses go.

                 THE COURT: We’re going to have to get the witnesses here
                 because I made it clear that this was going to be going one way or the
                 other, it’s either a plea or the jury, the jury is here so let’s get the
                 witnesses here.

                 MR. ALLEN: We’ll try, Judge. We’ll do the best we can.

       1
           At the time of this exchange, counsel for appellant was not in the courtroom.
                                                 -2-
                THE COURT: Well send somebody out now to get the witnesses.

                THE CLERK: Members of the jury, I need you to line up against the
                wall, I’m going to put you alphabetically.2

        The clerk then arranged the members of the venire in alphabetical order. Shortly thereafter,

the trial court informed the venire that “[t]here was a mix up but I think we’ve gotten it squared

away. We will know in just a few minutes.” While it waited for the Commonwealth to assemble its

witnesses, the trial court excused the venire to the jury room and took up another case. At the

conclusion of the other case, the trial court brought the venire back into the courtroom.

        Once the venire returned, the trial court stated “I apologize for making all of you all wait.

We had a problem with witnesses and now the witnesses are at least here or on the way here, so

we’ll go ahead and select the jury . . . .” The trial court then proceeded with jury selection. Among

the instructions given to the venire by the trial court was, “if you have witnessed any part of what

we’re talking about today then you shouldn’t sit on the case.” Moreover, the trial court stated

                [i]f you’ve heard the case discussed and you have made a decision
                based on what you have heard that cannot be changed then you
                shouldn’t sit on the case. If you have heard something about the case
                or read something about the case in the newspaper that has caused
                you to form an opinion that can’t be changed then you shouldn’t sit
                on the case.

In response, the venire affirmed that none of them “heard anything about this case, [saw] anything

about it in the paper, write up in the newspaper, [saw] anything about it on TV, [or] gained any

knowledge whatsoever” about the case. In response to the trial court’s inquiry, the venire indicated

that they had not “formed any opinion as to the guilt or the innocence” of appellant. Furthermore,

the venire affirmed that they were not “sensible of any bias or prejudice, either for or against the

Commonwealth” or appellant.

        2
         The record does not indicate where the conversation took place or where the members
of the venire stood. Neither is there anything in the record to establish whether the exchange
between the trial court and the Commonwealth was overheard by any member of the venire.
                                                -3-
        Next, the trial court also asked the venire

                Do any of you know of any reason whatsoever why you cannot give
                a fair and impartial trial, both to the Commonwealth and to
                [appellant], and why you cannot listen to this evidence, closely to the
                evidence and then determine his guilt or innocence based solely on
                what you see and hear in court today and on the instructions that the
                court will give?

All of the prospective jurors responded in the negative. The trial court then allowed the

Commonwealth and appellant to question the venire. After questioning, both parties exercised their

strikes and the trial court explained the procedures for the trial and the order in which evidence

would be received. The trial court instructed the venire that they “should not and cannot consider

anything that either of the attorneys say as evidence.” Moreover, the trial court informed the venire

that “the function of a jury is to determine the facts of every case and you are to determine the facts

from the evidence presented today, free from any kind of outside interference whatsoever.” At the

conclusion of the trial court’s statements, twelve jurors were selected and seated without objection.

        After the presentation of evidence, the jury found appellant guilty of distribution of

methamphetamine. This appeal followed.

                                            II. ANALYSIS

                                        A. Standard of Review

        The test of juror 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 v.

Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995). Moreover, “[i]f a prospective

juror ‘does not stand indifferent to the cause, he is not competent. If he has any interest in the cause,

or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or

prejudice, he is excluded by the law.’” Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 60-61, 707

S.E.2d 27, 30 (2011) (quoting Spangler v. Ashville, 116 Va. 992, 996-97, 83 S.E. 930, 931 (1914)).

                                                  -4-
“Juror impartiality is a question of fact” and is “entitled great deference on appeal.” Id. at 61-62,

707 S.E.2d at 30 (citations omitted). Accordingly, whether appellant received an impartial jury

“will not be disturbed on appeal unless there has been manifest error amounting to an abuse of

discretion.” Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001).

                                           B. Jury Impartiality

        On appeal, appellant asserts he was deprived of his constitutional right to an impartial

jury and fair trial due to the prejudicial statements made in the presence of the venire that were

unknown to appellant and his counsel. Specifically, appellant contends that he did not waive his

right to his claim of error because he could not object at trial to the comments as they were stated

while appellant was outside of the courtroom. In response, the Commonwealth first argues that

the record does not establish that the venire heard the conversation between counsel and the trial

court. Moreover, the Commonwealth contends that even if the venire overheard the comments,

the trial court did not deprive appellant of an impartial jury.

        Generally, “courts are charged with the responsibility of assuring that the judicial system

and its officers are impartial and that they will not use their offices to either overtly or subtly

influence the verdict or sentence in a case.” Scott v. Commonwealth, 11 Va. App. 516, 522, 399

S.E.2d 648, 651 (1990). Specifically, “[t]he test in a criminal case is not whether the jurors were

actually prejudiced by the extraneous matter, but whether they might have been so prejudiced.”

Evans-Smith v. Commonwealth, 5 Va. App. 188, 207-08, 361 S.E.2d 436, 437 (1987) (quoting

Thompson v. Commonwealth, 193 Va. 704, 715, 70 S.E.2d 284, 290 (1952)). Moreover, “[i]f

[the jurors] might have been prejudiced, then the purity of the verdict is open to serious doubt

and the verdict should be set aside and a new trial awarded.” Id.

        In the current matter, appellant cannot demonstrate that the jurors overheard the

discussion between the Commonwealth and the trial judge regarding appellant’s withdrawn
                                                  -5-
guilty plea. Appellant was unable to establish the location of the venire when the conversation

took place. Conversely, during voir dire the jurors collectively affirmed that they had not “heard

the case discussed, . . . made a decision based on what [they had] heard, . . . heard anything about

this case, [seen] anything about it in the paper, . . . [seen] anything about it on TV, gained any

knowledge whatsoever, [or] formed any opinion as to the guilt or the innocence” of appellant.

Rather, all of the jurors indicated that they could provide a fair and impartial trial for appellant.

        Still, without offering any proof of prejudice, appellant argues that the Commonwealth’s

and trial judge’s conversation concerning appellant’s withdrawn guilty plea amounts to reversible

error. “The presumption in favor of the regularity of the proceedings of courts extends to every step

and part thereof, and the burden is on him who alleges irregularity to show affirmatively by the

record that the irregularity exists.” Dove v. Commonwealth, 82 Va. 301, 305 (1886). Accordingly,

this Court has determined that appellant must establish “‘clear evidence’ to overcome this

presumption.” Milot v. Milot, 62 Va. App. 415, 425, 748 S.E.2d 655, 660 (2013). Moreover, “[w]e

cannot consider any comments where the record contains no indication that the jury heard them

because there is no basis to find prejudice.” Lawlor v. Commonwealth, 285 Va. 187, 220, 738

S.E.2d 847, 865-66 (2013). Considering appellant has not offered any evidence besides proof of

the conversation taking place, he has not rebutted the presumption of the venire’s impartiality and,

therefore, has not established error.

         The record in the instant case evidences the absence of bias or undue influence or

prejudice. Under such circumstances appellant was not deprived of his constitutional right to an

impartial jury and fair trial. Irvin v. Dowd, 366 U.S. 717, 723 (1961) (“[i]t is sufficient if the juror

can lay aside his impression or opinion and render a verdict based on the evidence presented in

court”). The trial court asked the venire numerous questions confirming that the venire could



                                                   -6-
provide a fair and impartial trial. Therefore, this Court finds that appellant was not denied his

constitutional right to a fair trial.

                                             III. CONCLUSION

        Based on the foregoing, this Court finds that appellant was not deprived of his

constitutional right to an impartial jury and fair trial due to the statements made in the presence

of the venire unknown to appellant and his counsel. Accordingly, this Court affirms the trial

court’s ruling.

                                                                                             Affirmed.




                                                 -7-
