                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Huff
UNPUBLISHED


              Argued by teleconference


              DEMONTE M. BURGESS
                                                                                MEMORANDUM OPINION * BY
              v.      Record No. 2225-11-2                                        JUDGE ROBERT P. FRANK
                                                                                     OCTOBER 23, 2012
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                                Cheryl V. Higgins, Judge

                                Samantha E. Freed (Lepold & Freed, PLLC, on brief), for appellant.

                                Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli,
                                II, Attorney General, on brief), for appellee.


                      Demonte M. Burgess, appellant, was convicted by a jury of attempted malicious wounding,

              in violation of Code §§ 18.2-51, 18.2-26, using a firearm in the commission of a felony, in violation

              of Code § 18.2-53.1, discharging a firearm in public, in violation of Code § 18.2-280, and

              brandishing a firearm in public, in violation of Code § 18.2-282. On appeal, he contends the trial

              court erred in not removing Juror McComb for cause at mid-trial. For the reasons stated, we affirm

              the judgment of the trial court.

                                                         BACKGROUND

                      On May 9, 2010, a black vehicle pulled into a parking lot in the Wilton Farms apartment

              complex. Devon Tyree was seated in the back seat of the vehicle, with Quan Rafaly in the front

              passenger seat and appellant in the driver’s seat.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       A.D. approached the vehicle to speak to Tyree. After some argument, appellant pushed

A.D. away from the car. A.D. then threw a soda can at appellant. Appellant exited the car and

threw A.D. to the ground. After appellant let A.D. off the ground, A.D. walked away. Appellant

then fired a shot at A.D. and drove away from the scene. A.D. was not hit. Neither Quan nor Tyree

was involved in the incident. They were only bystanders.

       During opening statements to the jury, the Commonwealth’s Attorney mentioned “Quan” as

being a front seat passenger. A.D. testified “Quan” was in the front passenger seat, but said that she

did not know Quan’s last name.

       Devon Tyree, a defense witness, testified Quan is his brother and was seated in the front

passenger’s seat. Tyree did not indicate Quan’s last name. Detective D.J. Harris testified that he

had obtained information that a “Jaquan Rafaly” was a front seat passenger when the incident

occurred.

       Both sides rested. The parties then reviewed and argued the instructions to be given to the

jury. At that point, the trial court was notified by the bailiff that Juror McComb had heard the name

“Quan Rafaly” and said that she was Rafaly’s first cousin.

       The Commonwealth’s Attorney replied that there was no testimony that Quan was involved

other than being in the car. Defense counsel expressed a concern that McComb may have heard

something about the incident from Quan.

       The following dialogue then occurred:

               THE COURT:              Good afternoon. So, Ms. McComb, I
                                       understand that you recognized the name
                                       Quan Rafaly.

               MS. McCOMB:             Yes.

               THE COURT:              And how did you recognize the name?

               MS. McCOMB:             That is my first cousin.


                                                 -2-
THE COURT:         And have you talked to your first cousin
                   about this case?

MS. McCOMB:        No, I have not spoken with him individually
                   about it. I heard through my parents who
                   are Quan’s aunt and uncle that he was
                   involved in a shooting incident and that was
                   the extent of it.

THE COURT:         Do you know any information beyond that?

MS. McCOMB:        No, ma’am.

THE COURT:         Would that affect your ability to hear this
                   case?

MS. McCOMB:        No, ma’am, I don’t think so.

     *      *     *       *         *    *        *

MR. SNOOK [DEFENSE COUNSEL]: Do you know --- is there
                any other detail that you have in your
                memory at this point about what you were
                told about this incident?

MS. McCOMB:        Just that he was involved in an incident and
                   that it was not his gun.

MR. SNOOK:         Any other details that you remember?

MS. McCOMB:        No.

MR. SNOOK:         Have you ever heard him talk at all about
                   Demonte Burgess?

MS. McCOMB:        No.

MR. SNOOK:         Or heard any other connection about
                   Demonte Burgess or other participants in
                   what happened that day?

MS. McCOMB:        No, I never heard any specific names.

MR. SNOOK:         Okay, thank you, that’s all.

THE COURT:         And are you talking about Jaquan Rafaly?

MS. McCOMB:        Yes, he goes by Quan, R-a-f-a-l-y. My
                   maiden name is Rafaly.


                              -3-
       Appellant moved to strike McComb from the panel and declare a mistrial. He argued

McComb had extra-judicial knowledge as well as a family relationship with Quan and knew

more about the case than she described. Appellant expressed concern that during deliberations

McComb may suddenly remember more details. Appellant offered no basis for his speculative

belief that McComb knew more than she had disclosed to the court.

       The court found McComb stated she would not have any problem setting the matter aside

and concluded that for the court to assume otherwise would be speculative. Referring to the

original voir dire, the court noted that when the entire panel was asked if anyone had acquired

any information about the case, it did not register to McComb that the “Quan” mentioned in

opening was her cousin. The trial court concluded that he did not believe McComb had any

further information other than what she indicated.

       This appeal follows.

                                           ANALYSIS

       On appeal, appellant argues that Juror McComb should have been removed from the

panel: 1) because of the information she had concerning the instant offense; and 2) because of

her familial relationship with Quan. 1 Appellant premises his argument on the fact that McComb

was a first cousin of Quan, who was a passenger in the vehicle, and that McComb had obtained

extra-judicial information from her parents, Quan’s uncle and aunt. Appellant contends, as he

did below, that there is a “possibility” that during deliberations, McComb would suddenly

remember some other details about the incident.

       “The right to be tried by an impartial jury is guaranteed under both the United States and

Virginia Constitutions.” Swanson v. Commonwealth, 18 Va. App. 182, 184, 442 S.E.2d 702,



       1
         Appellant did not argue below nor in his brief that public confidence in the integrity of
the judicial system disqualifies Juror McComb. We will not raise the issue sua sponte.
                                              -4-
703 (1994); see also Code § 8.01-358. In order for that guarantee to be effective, a person

accused of violating criminal laws must be provided with “an impartial jury drawn from a panel

[of twenty] free from exceptions.” Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d

734, 736-37 (1976). 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.” Id. at

298, 227 S.E.2d at 735. Further, if a reasonable doubt exists as to whether the juror is qualified,

he must be excluded. ‘“[I]t is not only important that justice should be impartially administered,

but it also should flow through channels as free from suspicion as possible.’” Id. (quoting

Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)). “These principles are to be

strictly applied and when a prospective juror equivocates about whether he or she has formed a

fixed opinion, the prospective juror should be stricken by the trial court.” Clements v.

Commonwealth, 21 Va. App. 386, 392, 464 S.E.2d 534, 537 (1995).

       However, it is common during voir dire to discover that prospective jurors may have

preconceived notions, misconceptions, or opinions about the particular case, or about the

criminal justice system in general. See Cressell v. Commonwealth, 32 Va. App. 744, 761, 531

S.E.2d 1, 9 (2000). For a juror to be disqualified, he must entertain an opinion of fixed character,

‘“which repels the presumption of innocence in a criminal case, and in whose mind the accused

stands condemned already.”’ Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 91

(1980) (quoting Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388, 391 (1931)). Thus,

“‘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.’” Cressell, 32 Va. App.

at 761, 531 S.E.2d at 9 (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d

363, 364 (1995)).

                    Given that the trial court is able to see and hear each
               member of the venire respond to questions posed during voir dire,
                                                -5-
                it is in a superior position to determine whether a prospective
                juror’s responses during voir dire indicate that the juror would be
                prevented from or impaired in performing the duties of a juror as
                required by the court’s instructions and the juror’s oath. Juror
                impartiality is a question of fact, and a trial court’s decision to seat
                a juror is entitled to great deference on appeal. Accordingly, the
                decision to retain or exclude a prospective juror will not be
                disturbed on appeal unless there has been manifest error amounting
                to an abuse of discretion.

Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61, 707 S.E.2d 27, 30 (2011) (internal

quotations and citations omitted.)

        ‘“In conducting our review, we consider the juror’s entire voir dire, not merely isolated

statements.”’ Thomas v. Commonwealth, 279 Va. 131, 164, 688 S.E.2d 220, 238 (2010)

(quoting Lovitt v. Commonwealth, 260 Va. 497, 510-11, 537 S.E.2d 866, 875 (2000)) (other

citations omitted).

        The analysis for removing a juror mid-trial involves the same analysis used in

determining whether to strike a juror during voir dire. Moreover, for a party to be entitled to a

mistrial for jury misconduct which arises from voir dire, he must show: 1) that a juror failed to

answer honestly a material question on voir dire; and 2) that a correct response would have

provided a valid basis for a challenge for cause. “The motives for concealing information may

vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the

fairness of a trial.” Taylor v. Commonwealth, 25 Va. App. 12, 18, 486 S.E.2d 108, 111 (1997).

“[J]uror misconduct does not automatically entitle either litigant to a mistrial.” Robertson v.

Metropolitan Washington Airport Authority, 249 Va. 72, 76, 452 S.E.2d 845, 847 (1995). The

trial court must also find a probability of prejudice, with the “burden of establishing that

probability . . . upon the party moving for a mistrial.” Id. Hence, we will not overturn “the

denial of a motion for a mistrial . . . unless there exists a manifest probability that [the ruling]

was prejudicial.” Taylor, 25 Va. App. at 17, 486 S.E.2d at 110.

                                                  -6-
       Here, appellant first argues McComb should have been removed because of her familial

relation with Quan. In Virginia, there is no per se rule disqualifying a prospective juror who is

related to a prosecution witness on the grounds that he is presumed to be biased, or not

indifferent in the cause. Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 733

(2001); see also Townsend v. Commonwealth, 270 Va. 331, 335, 619 S.E.2d 71, 74-75 (2005)

(further explaining Barrett and this principle). If a prospective juror is related to a witness, the

inquiry is whether that relationship would cause the juror to be biased or not stand indifferent to

the cause.

       However, it is also important to note that Quan did not testify. Appellant cites no cases,

and we find none, requiring that a juror related to a non-testifying bystander be struck for cause

or removed from the panel mid-trial.

       Appellant does not allege juror dishonesty or misconduct. He does not argue that

McComb untruthfully answered a question during voir dire, or that she tried to conceal her

familial relationship with Quan. To the contrary, McComb revealed the relationship to the trial

court. Furthermore, appellant does not contend McComb had prematurely formed any opinion

as to the guilt or innocence of appellant. As such, we find no merit to appellant’s argument.

       Next, appellant maintains McComb should have been removed because she received

extra-judicial information from her parents, Quan’s uncle and aunt.

       The facts before the trial court were that McComb never spoke to Quan about this case.

The information McComb obtained from her parents was that Quan was involved in a shooting

and that the gun involved was not his. McComb testified, without equivocation, that was the

only information she had received. Appellant argues that because McComb knew her cousin

was involved in the incident, she may have been biased against appellant in order to protect her




                                                 -7-
cousin. This argument is based on speculation. Appellant offered no explanation as to how

McComb voting to convict appellant would benefit her cousin.

        Further, McComb testified that the limited knowledge she had about the incident would

not affect her ability to hear the case. The trial court, who had the opportunity to observe

McComb’s testimony and demeanor, found from these words that McComb could set aside the

information she had received. The trial court also concluded that McComb had no further

information than she revealed to the court. These factual findings will not be disturbed on appeal

unless no evidence supports those findings. See Akers v. Commonwealth, 216 Va. 40, 46, 216

S.E.2d 28, 32 (1976). Further, as we have previously noted, juror impartiality is a question of

fact. Wainwright v. Witt, 469 U.S. 412, 462 (1985).

        Appellant’s basis for McComb’s exclusion is pure speculation. He contends McComb

might, during deliberation, recall additional information. However, there is nothing in the record

to suggest that McComb had any information other than what she had already disclosed.

        We conclude the trial court did not abuse its discretion in not removing McComb. Based

on McComb’s voir dire, the trial court would not have erred in keeping McComb on the panel

during the original voir dire. If, during the original voir dire, McComb had indicated she was the

cousin of a non-testifying bystander, she would not have been struck for cause. Thus, we also

find the trial court did not err in refusing to grant a mistrial.

                                            CONCLUSION

        For the foregoing reasons, we affirm the trial court’s denial of appellant’s motions to

remove Juror McCombs and for a mistrial.

                                                                                          Affirmed.




                                                  -8-
