                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and AtLee
UNPUBLISHED


              Argued at Norfolk, Virginia


              ANDREW SIMON MANZANO, A/K/A
               ANDREW WILLIAMS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0936-16-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                  JULY 25, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              Mary Jane Hall, Judge

                               Curtis T. Brown for appellant.

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


                     A jury in the Circuit Court of the City of Norfolk (“trial court”) convicted appellant

              Andrew Simon Manzano of possession of an imitation controlled substance with the intent to

              sell, give, or distribute. The jury recommended, and the trial court imposed, a sentence of

              eighteen months in prison. On appeal, Manzano argues the trial court erred by refusing to strike

              three jurors who stated during voir dire that they believed the testimony of a police officer was

              inherently more credible than that of non-police witnesses. For the following reasons, we

              disagree and affirm.

                                                        I. BACKGROUND

                     The only issue on appeal concerns one question asked of the venire during voir dire:

                               [D]o you give police officers’ testimony the same weight that you
                               would an ordinary witness, or would you give the police officers a

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                little bit more because they’re police officers and they’re here to
                uphold the law? Does anybody feel that a police officer’s
                testimony should be given a little bit more weight than somebody
                off the street because they’re police officers – they’re the ones with
                a badge?

Seven potential jurors answered affirmatively.1 Three were struck for cause, Manzano exercised

his peremptory challenges on two others, and two served on the jury.2 Manzano challenges the

trial court’s denial of his motion to strike three of these persons for cause: Sherman, Renn, and

Greenspan,3 arguing that the Commonwealth’s attempts to rehabilitate them were inadequate and

they should have been struck for cause. We describe and analyze each of their responses

individually.

                                           II. ANALYSIS

       “A trial judge has broad discretion and control over how voir dire is conducted and the

procedure for seating a jury.” Holloman v. Commonwealth, 65 Va. App. 147, 164, 775 S.E.2d

434, 443 (2015) (quoting Brooks v. Commonwealth, 24 Va. App. 523, 529, 484 S.E.2d 127, 129

(1997)). As such, an appellate court

                must give deference to the circuit court’s determination whether to
                exclude a prospective juror because that court was able to see and
                hear each member of the venire respond to questions posed. The
                circuit court is in a superior position to determine whether a

       1
         Earlier in voir dire, the Commonwealth asked whether anyone “would believe [Norfolk
police officer] testimony more simply because they’re police officers?” The record indicates that
no persons on the venire responded, including those who later responded affirmatively to the
defense attorney’s question.
       2
         Manzano does not challenge the trial court’s refusal to strike one of the jurors,
implicitly acknowledging that she was qualified to serve.
       3
         Neither Sherman nor Greenspan served on the jury because Manzano used his
peremptory strikes on them; however, “[i]n Virginia, a defendant in a criminal case ‘is entitled to
a panel of jurors free from exception before exercising peremptory challenges.’” DeLeon v.
Commonwealth, 38 Va. App. 409, 412, 565 S.E.2d 326, 327 (2002) (quoting Cressell v.
Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d 1, 6 (2000)).

                                                -2-
               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.

Simmons v. Commonwealth, 63 Va. App. 69, 74-75, 754 S.E.2d 545, 548 (2014) (quoting

Garcia v. Commonwealth, 60 Va. App. 262, 268, 726 S.E.2d 359, 362 (2012)). The trial court is

best situated to make this determination because it

               “has the opportunity, which we lack, to observe and evaluate the
               apparent sincerity, conscientiousness, intelligence, and demeanor
               of prospective jurors first hand, the trial court’s exercise of judicial
               discretion in deciding challenges for cause will be not disturbed on
               appeal, unless manifest error appears in the record.” A manifest
               error occurs when the record shows that a prospective juror cannot
               or will not lay aside his or her preconceived opinion.

Taylor v. Commonwealth, 67 Va. App. 448, 455-56, 796 S.E.2d 859, 863 (2017) (quoting

Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004)). Although we

review the trial court’s determination deferentially, “[a]ny reasonable doubt as to a juror’s

qualifications must be resolved in favor of the accused.” DeLeon, 38 Va. App. at 412, 565

S.E.2d at 327 (quoting Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735

(1976)).

                                            A. Sherman

       When asked about his affirmative response to the question regarding weighing police

officer credibility, Sherman had the following exchange with trial counsel (with Mr. Brown

asking questions on behalf of the defense, and Mr. Fatehi on behalf of the Commonwealth):

               MR. BROWN: And you’d indicated that you’d give them more
               weight because they’re police officers designed to protect the law.
               But you’re saying that if the Judge instructs you to treat them all
               the same, you will treat them all the same?

               MR. SHERMAN: Absolutely.

               MR. BROWN: But if you weren’t instructed, you’re saying that
               you would give them more weight?
                                                 -3-
               MR. SHERMAN: Yeah….

                  ....

               MR. FATEHI: Are you willing to set aside any of your personal
               feelings about this, and listen to the testimony of the police officers
               in this case, and judge their credibility -- judge their believability
               on their own merits?

               MR. SHERMAN: Sure.

               MR. FATEHI: Will you follow any of the Judge’s instructions
               regarding the credibility of witnesses?

               MR. SHERMAN: Yes

These responses clearly indicate that Sherman was both willing and able to serve as an impartial

fact-finder. Moreover, early in the voir dire, he stated, without prompting, that “if the

instructions tell me that everybody’s testimony is weighed equally, that’s what I will do.” He

never wavered from that stance. This is analogous to the facts in Smith v. Commonwealth, 239

Va. 243, 389 S.E.2d 871 (1990), where the Supreme Court affirmed the denial of a defense

motion to strike a juror, Moore, for cause:

               When asked whether he felt “that the testimony of a police officer
               carries more weight . . . than that of an ordinary citizen,” Moore
               said: “That is a tough call.” Continuing, he stated:

                         Police officers have always been in a high esteem
                         and you always think that they are the ones that are
                         being able to tell the truth more than an average
                         citizen. But then, again, it is a preconceived notion
                         that I have probably had for the majority of my life.

               Moore then replied in the negative when asked whether “that
               preconceived notion [would] interfere with [his] ability to weigh
               the evidence and render a fair and impartial decision . . . or would
               [he] automatically give more weight to the testimony of a police
               officer.”

Id. at 255, 389 S.E.2d at 877 (alterations in original). The Court held:



                                                 -4-
               Whether [Moore] should have been excluded for cause was a
               matter within the sound discretion of the trial court. . . . [Moore’s]
               ultimate attitude on the subject of the testimony of police officers
               was essentially neutral. His responses to the various questions
               propounded to him, while perhaps not displaying the grasp of a
               legal technician, satisfactorily indicated that he not only stood
               indifferent in the cause but also possessed sufficient intelligence to
               be able to afford the defendant a fair and impartial trial.

Id. (alterations in original) (quoting Waye v. Commonwealth, 219 Va. 683, 690, 251 S.E.2d 202,

206-07 (1979)). This is exactly what took place here. In light of Sherman’s responses, the trial

court did not err in refusing to exclude him from the venire.

                                             B. Renn

       When asked about his response to the question regarding police credibility, Renn

described his previous positive experiences with law enforcement. He explained that he would

be more inclined to believe police testimony because they are “supposed to be the third party.

Yes, I would -- over a friend or a relative or somebody else who may be biased, I think I would

trust that opinion of the police officer.” Although Manzano frames this statement as Renn

revealing an intractable preference for police testimony, there is an important distinction: he

states only that he would credit police testimony over specific types of witnesses who have a

close connection to the defendant. Renn did not state that he believes all police testimony is

more credible than that of any non-police witness. Rather, his answer acknowledged a

common-sense reality that some witnesses’ testimony may be tainted due to their relationship to

the defendant. This does not indicate that he possesses a preconceived opinion or preference that

would prevent him from serving as an impartial juror.

       Renn’s other responses similarly failed to reveal any bias that would have prevented him

from performing the duties of a juror. He responded affirmatively when asked if it is “fair to say

that there are good and bad police officers?” and agreed that he could “judge any nonpolice

witnesses on their merits and on their credibility.” When asked again by the defense “But if
                                                -5-
there’s any doubt as to the police officer and an ordinary witness, you’re going to favor the

police because of your experience with the police officers?,” he responded “All things being

equal, I probably would.” Renn’s positive view of the police based on his prior experience does

not per se disqualify him from serving as an impartial juror. See Stewart v. Commonwealth, 245

Va. 222, 235, 427 S.E.2d 394, 403 (1993) (affirming refusal to strike wife of a local police

officer in a “small community,” who expressed “willingness to accept a police officer’s

statement ‘in most cases’”). Although his responses evince a belief that generally, law

enforcement testimony is likely to be impartial, they do not indicate that he was unwilling or

unable to individually evaluate the credibility of either police or non-police witnesses. As such,

we cannot say that the trial court abused its broad discretion in refusing to strike Renn for cause.

                                           C. Greenspan

         Manzano challenges the refusal to strike one additional juror who initially indicated that

she may give more weight to police testimony. During voir dire, the following exchange took

place:

                MR. BROWN: You indicated that you would give a police
                officer’s testimony more weight than you would an ordinary
                witness.

                MS. GREENSPAN: Uh-huh.

                MR. BROWN: Why is that?

                MS. GREENSPAN: Well, don’t we have to have some standard?
                I mean, why do we have police? I don’t believe all the things that
                happen today in this world, but you have to have some standard. If
                you can’t believe the police officers, who are you going to believe?
                That’s my answer to you. Now, I’m not saying I wouldn’t think
                about it twice.

                MR. BROWN: But you would come into the case giving a police
                officer’s testimony more weight than you would someone else?




                                                -6-
               MS. GREENSPAN: I think that’s a loaded question. I really do.
               Society has made a police officer -- supposed to carry out the law.
               If you’re asking me -- are you asking me if I wouldn’t?
               MR. BROWN: No. I’m not asking if you wouldn’t; I’m just
               asking when you come to court when you come to the case, would
               you give a police officer’s testimony more weight than you would
               an ordinary witness because they’re police officers and designed to
               protect –

               MS. GREENSPAN: I think at first I would. If there are holes in
               the testimony, I wouldn’t. But I have to have some standard to
               start with.

                   ....

               MR. BROWN: I just want to make sure that this is clear. Your
               statement was that, at the beginning of the case, you’d give the
               police officer more weight, but you’d just have to listen to the
               testimony –

               MS. GREENSPAN: Right.

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

statements.” Simmons, 63 Va. App. at 74, 754 S.E.2d at 548 (citing Vinson v. Commonwealth,

258 Va. 459, 467, 522 S.E.2d 170, 176 (1999)). Although Greenspan’s responses “perhaps [did]

not display[ ] the grasp of a legal technician,” they “satisfactorily indicated that [s]he not only

stood indifferent in the cause but also possessed sufficient intelligence to be able to afford the

defendant a fair and impartial trial.” Smith, 239 Va. at 255, 389 S.E.2d at 877 (quoting Waye,

219 Va. at 690, 251 S.E.2d at 206-07). Her responses reflect the reality that a fact-finder first

hears the Commonwealth’s case against a defendant, which generally includes police testimony.

She appears to acknowledge that this testimony may or may not be adequate to prove the

accused’s guilt, and did not indicate that she would ultimately credit police testimony over that

of other witnesses. The trial court did not err in refusing to strike Greenspan for cause.




                                                 -7-
                                        III. CONCLUSION

       For the foregoing reasons, the trial court did not err in finding that these venirepersons

were able to serve as impartial jurors, and thus there was no manifest error in denying

Manzano’s motions to strike them for cause.

                                                                                          Affirmed.




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