                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Beales and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              CARNELL LESTER JACKSON
                                                                               MEMORANDUM OPINION* BY
              v.        Record No. 1256-13-2                                   JUDGE RANDOLPH A. BEALES
                                                                                    OCTOBER 7, 2014
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                                                James F. D’Alton, Jr., Judge

                                  Steven Brent Novey (Novey and Tomko Law Firm, on brief), for
                                  appellant.

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


                        A jury found Carnell Jackson (appellant) guilty of one count of burglary in violation of

              Code § 18.2-91, two counts of robbery in violation of Code § 18.2-58, one count of abduction in

              violation of Code § 18.2-47, and one count of first-degree murder in violation of Code § 18.2-32.

              Appellant argues that the trial court erred in refusing to grant his motion to strike Juror 15 for cause.

              We hold that the trial court did not err when it refused to grant appellant’s motion to strike Juror 15

              for cause, and, accordingly, for the following reasons, we affirm each of appellant’s convictions.

                                                           I. BACKGROUND

                        As the parties are fully conversant with the record in this case, and because this

              memorandum opinion carries no precedential value, this opinion recites only those facts and

              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

              appeal.

                        *
                            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        At the outset of voir dire, the trial court asked the prospective jurors a number of questions.

Their responses indicated that they were not related to appellant or the victims, that they were not

acquainted with appellant or the victims, that they did not have any interest in the trial or outcome of

the case, that they had not expressed or formed any opinion about appellant’s guilt or innocence,

that they understood appellant is presumed to be innocent and that the Commonwealth must prove

his guilt beyond a reasonable doubt, that they did not have any bias against appellant or the

Commonwealth, and that they had no reason to believe they would be unable to give a fair and

impartial trial to both parties.

        Next, the prosecutor asked the prospective jurors questions. Those questions pertained to

their job status; whether they owned a home in the City of Petersburg; whether they had ever been a

victim of a home invasion robbery; whether anyone important to them had ever been charged with

burglary or assault; whether they knew any of appellant’s family members; whether they knew or

recognized any of the witnesses; whether they had had a bad experience with a police officer or

prosecutor; whether they were familiar with the location of the crime; and whether they had been

involved in a case that either the prosecutor or defense attorney handled. Some of the prospective

jurors – but not Juror 15 – responded to some of these questions in the affirmative. The prosecutor

also asked the prospective jurors whether they understood that voluntary intoxication is not a

defense to murder; whether they could follow the law based on the evidence; and whether they had

any moral, philosophical, or religious beliefs that would prevent them from sitting on a jury and

rendering a decision. All of the prospective jurors indicated that they understood that voluntary

intoxication is not a defense to murder and that they could follow the law based on the evidence.

None of the prospective jurors indicated that they had any moral, philosophical, or religious beliefs

that would prevent them from sitting on the jury and rendering a decision.




                                                  -2-
       Near the end of his questioning of the prospective jurors, the prosecutor posed the following

question to the prospective jurors: “Is there any other experience that anyone has today that they

can think of that would prevent them from sitting as a juror today?” Juror 15, a student, raised her

hand, at which point the following exchange took place between the prosecutor and Juror 15:

           Juror 15: It’s not an experience, but I actually have class at 12:00, and it’s the
           end of the semester. So it’s a very busy time. I have a project due in that class
           too.

           Prosecutor: I understand.

           Juror 15: So I’m a bit preoccupied.

           Prosecutor: I can appreciate that. I understand that, but that aside, would that
           affect your ability to sit as a fair juror today and just listen? If you are
           required, could you still do that?

           Juror 15: Yes.

       Defense counsel asked all of the prospective jurors certain questions.1 He also asked

follow-up questions of specific jurors, including the following exchange that took place between

him and Juror 15:

           Defense Counsel: Would it be difficult for you to sit here all two days? I
           think we all know this case is going to go past 12:00 today and will go into
           tomorrow. If you’re chosen to sit here, will you have any problem giving both
           sides, the Commonwealth and my client, a fair trial, not to rush through
           anything to get to the right answer because the right answer is always what
           we’re focusing on.

           Juror 15: I think I would be preoccupied, worried about missing school.

           Defense Counsel: Again, I appreciate your honesty. So the answer would be
           it would be difficult?

           Juror 15: Yes.


       1
         Defense counsel asked the prospective jurors whether they agreed that the accused is
presumed innocent; whether they could hold the Commonwealth to its burden to prove guilt
beyond a reasonable doubt; and whether they agreed that an accused’s choice not to testify at all
does not constitute evidence against the accused. All of the prospective jurors indicated that they
understood and accepted these concepts.
                                               -3-
          Near the conclusion of the voir dire, appellant made a motion to strike Juror 15 for cause.

Appellant explained, “[n]umber 15 said that she would find it very difficult. She would be

preoccupied with school, and this case, like any case, is too important to have a juror preoccupied

with a project when they’re deciding the life and the future of my client.” The trial court denied

appellant’s motion to strike Juror 15 for cause, stating “I think everybody’s got something else to

do. She said she would be preoccupied. She’d rather not be here, but I don’t find it’s a basis for

cause.”

                                               II. ANALYSIS

          Appellant argues that the trial court committed reversible error when, near the conclusion of

voir dire, it denied his motion to strike Juror 15 for cause. Appellant contends that Juror 15

indicated that she would not be able to give her full attention to the trial and, for that reason, should

have been stricken for cause.

          “We have stated that a prospective juror ‘must be able to give [the accused] a fair and

impartial trial.’” Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001) (quoting

Wright v. Commonwealth, 73 Va. 941, 943 (1879)). Therefore,

             [t]he court and counsel for either party shall have the right to examine under
             oath any person who is called as a juror therein and shall have the right to ask
             such person or juror directly any relevant question to ascertain whether he is
             related to either party, or has any interest in the cause, or has expressed or
             formed any opinion, or is sensible of any bias or prejudice therein; and the
             party objecting to any juror may introduce any competent evidence in support
             of the objection; and if it shall appear to the court that the juror does not stand
             indifferent in the cause, another shall be drawn or called and placed in his
             stead for the trial of that case.

Code § 8.01-358; see Rule 3A:14(a)(7) (stating that voir dire questioning relates to, inter alia,

whether the trial judge “[h]as any reason to believe the juror might not give a fair and impartial trial

to the Commonwealth and the accused based solely on the law and the evidence”).




                                                    -4-
        “‘On appellate review, this Court must give deference to the circuit court’s determination

whether to exclude a prospective juror,”’ since the trial judge is ‘“able to see and hear each member

of the venire respond to questions posed’” during voir dire. Townsend v. Commonwealth, 270 Va.

325, 329, 619 S.E.2d 71, 73 (2005) (quoting Green, 262 Va. at 115-16, 546 S.E.2d at 451). The

trial judge ‘“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.’” Id. 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.” Barrett v. Commonwealth, 262 Va. 823, 826, 553

S.E.2d 731, 732 (2001).

        ‘“Only when reasonable jurists could not differ can we say an abuse of discretion has

occurred.”’ Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 847, 861 (2009) (quoting

Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en

banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)). The highly deferential abuse-of-discretion standard

of appellate review “means that the trial judge’s ruling will not be reversed simply because an

appellate court disagrees.” Thomas, 44 Va. App. at 753, 607 S.E.2d at 743 (internal quotations and

citations omitted). That is, “‘we do not substitute our judgment for that of the trial court. Rather,

we consider only whether the record fairly supports the trial court’s action.’” Grattan, 278 Va. at

620, 685 S.E.2d at 644 (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906

(1997)). A trial court “has a range of choice, and its decision will not be disturbed as long as it stays

within that range and is not influenced by any mistake of law.” Lawlor v. Commonwealth, 285 Va.

187, 212, 738 S.E.2d 847, 861 (2013) (alteration and internal quotation marks omitted).

        The trial court’s decision to deny appellant’s motion to strike Juror 15 for cause was not

manifest error resulting in an abuse of discretion. See Barrett, 262 Va. at 826, 553 S.E.2d at 732.

                                                  -5-
On this record, we cannot say that no reasonable jurist would agree with the trial judge that Juror 15

was competent to serve as a juror here. See Grattan, 278 Va. at 620, 685 S.E.2d at 644. In making

our conclusion, we must look to the entire voir dire of Juror 15 – not just her statements indicating

some preoccupation due to her school work. See Green, 262 Va. at 116, 546 S.E.2d at 451 (noting

that “[w]e must consider the voir dire as a whole, and not the juror’s isolated statements” (citing

Clagett v. Commonwealth, 252 Va. 79, 90, 472 S.E.2d 263, 269 (1996))).

       Juror 15’s responses during the voir dire indicated that she was not acquainted with any of

the parties in this case, had not acquired any knowledge of the case through the media, and had not

been a victim of the crimes being prosecuted.2 In addition, Juror 15 indicated that she had not

formed an opinion as to appellant’s guilt or innocence and that she understood that appellant was



       2
          Appellant argues that Brown v. Commonwealth, 29 Va. App. 199, 510 S.E.2d 751
(1999), counsels toward reversal of the trial court here. Appellant’s reliance on Brown is
misplaced, however, as the circumstances there were readily distinguishable. In Brown, this
Court reversed the trial court’s decision to deny the appellant’s motion to strike two prospective
jurors for cause. Id. at 202, 510 S.E.2d at 752. This Court reasoned that, because one of the
prospective jurors in Brown had been a victim of the types of crimes being prosecuted against
Brown, and because she “expressed numerous reservations about her ability to serve impartially
on the jury in light of her personal experiences,” there was “reasonable doubt about her fitness as
a juror.” Id. at 208, 510 S.E.2d at 755. Thus, “[b]ecause all doubts about the fitness of a juror to
serve must be resolved in favor of the accused,” this Court found that the trial court erred in
refusing to strike the prospective juror for cause. Id.
        During the voir dire, the second prospective juror in Brown, who was Chief Counsel to
the United States Secret Service, indicated that he put much credence in the testimony of law
enforcement officers since he tended to “view things from the law enforcement perspective” and
that he believed a person charged with a crime likely committed the crime. Id. at 208-09, 510
S.E.2d at 755-56. This Court found that the second prospective juror’s responses during the voir
dire also “created a reasonable doubt about his ability to sit impartially on a jury” and that
because “[a]ll reasonable doubts must be resolved in favor of the accused,” the trial court erred
in refusing to strike the second prospective juror for cause. Id. at 210, 510 S.E.2d at 756.
        Thus, key to this Court’s decision in Brown was the reasonable doubt as to the two
prospective jurors’ ability to serve impartially on the jury. Here, however, Juror 15’s
impartiality is not really at issue on appeal. She never indicated an unwillingness or inability to
be impartial if selected for the jury – simply a desire, given her worries about her schoolwork
and classes, not to be selected for the jury in the first place. See Calhoun v. Commonwealth, 226
Va. 256, 262, 307 S.E.2d 896, 900 (1983) (explaining that an “obvious reluctance to serve as a
juror was not a basis for disqualification”).
                                                  -6-
presumed innocent until the Commonwealth could prove his guilt beyond a reasonable doubt. Juror

15 indicated that she understood that an accused’s choice not to testify is not evidence of guilt. She

indicated that she did not have any moral, philosophical, or religious beliefs that would prevent her

from sitting on the jury and rendering a decision. Juror 15 also indicated that she would follow the

law based on the evidence presented at trial, and her doing so enabled the trial judge to infer that she

would be attentive and listen to the evidence. Finally, when the prosecutor asked Juror 15 if she

would be able to “sit as a fair juror today and just listen,” Juror 15 responded in the affirmative.

Juror 15 never indicated that she could not perform her duties as a juror – just a reluctance to serve

because she was preoccupied with her schoolwork. Viewing Juror 15’s voir dire in its entirety, the

trial judge – who could actually observe Juror 15’s responses and demeanor through the entire voir

dire – was not required to conclude that Juror 15 was unable to set aside concerns over her

schoolwork and serve as a competent and attentive juror.

                                           III. CONCLUSION

        The trial court did not commit manifest error and abuse its discretion when it denied

appellant’s motion to strike Juror 15 for cause. Therefore, we will not disturb the trial court’s

decision on appeal. Accordingly, for the foregoing reasons, we affirm each of appellant’s

convictions.



                                                                                               Affirmed.




                                                  -7-
