                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Senior Judges Willis and Annunziata
Argued at Alexandria, Virginia


SEBASTIAN TRISTAN CARTER
                                                                MEMORANDUM OPINION * BY
v.      Record No. 2948-06-4                                CHIEF JUDGE WALTER S. FELTON, JR.
                                                                     FEBRUARY 19, 2008
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                   John E. Kloch, Judge

                  Lavonda Graham-Williams (Law Offices of Patrick N. Anderson,
                  P.C., on brief), for appellant.

                  Benjamin H. Katz, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Sebastian Tristan Carter (appellant) was convicted following a jury trial of first-degree

murder in violation of Code § 18.2-32 and the use of a firearm in the commission of murder in

violation of Code § 18.2-53.1. 1 Appellant contends the trial court erred in failing to grant his

motion to strike three prospective jurors for cause, requiring him to use peremptory strikes to

exclude them, thereby violating his constitutional right to a fair and impartial jury trial. Appellant

also contends the trial court erred in failing to grant his motion to strike the entire venire, after a

bailiff handcuffed him in open court for security reasons during a brief recess called in response to

an unrelated disturbance outside the courtroom. He also contends that the trial court erred by failing

to give a cautionary instruction to the jury related to the handcuffing incident. Finding no error on


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
          Appellant was also charged with attempted robbery and the use of a firearm in that
offense. As the jury was unable to reach a verdict on those charges, the trial court granted a
mistrial and entered an order of nolle prosequi as to each.
the part of the trial court, we affirm the appellant’s convictions, but remand to permit the trial court

to correct a clerical error in its June 12, 2006 conviction order pursuant to Code § 8.01-428(B). 2

                                              I. ANALYSIS

        “An accused has a constitutional right to [trial by] an impartial jury.” Wolfe v.

Commonwealth, 265 Va. 193, 211, 576 S.E.2d 471, 481 (2003) (citing U.S. Const. amends. VI and

XIV; Va. Const. art. 1, § 8). “It is the court’s duty to procure an impartial jury.” Scott v.

Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899, 901 (1986). “In effectuating this guarantee,

however, there are no hard and fast rules and each case must be determined on its own set of facts.”

Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 387, 349 S.E.2d 903, 906 (1986)

(citing Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268 (1940)).

                [M]embers of the venire must “stand indifferent in the cause.” A
                prospective juror “must be able to give [the accused] a fair and
                impartial trial. Upon this point nothing should be left to inference
                or doubt. All the tests applied by the courts, all the enquiries made
                into the state of the juror’s mind, are merely to ascertain whether
                [the juror] comes to the trial free from partiality and prejudice.”
                Wolfe, 265 Va. at 211, 576 S.E.2d at 482.

Juniper v. Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383, 408 (2006) (alteration in original).

        “On appeal, we give deference to the trial court’s decision whether to retain or exclude a

venireman . . . .” Moten v. Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251 (1992).

“[T]he trial judge has the opportunity, which we lack, to observe and evaluate the apparent

sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand . . . .”

Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987). “‘Thus, we review a

trial court’s decision whether to strike a prospective juror for cause for an abuse of discretion and

that ruling will not be disturbed on appeal unless it appears from the record that the trial court’s


        2
        The June 12, 2006 order lists “James J. Holloman” as the jury foreman. The record
shows that Holloman was struck from the venire and did not sit on the jury that heard the case.
The record reflects that Joseph A. Hamilton was the jury foreman.
                                             -2-
action constitutes manifest error.’” DeLeon v. Commonwealth, 38 Va. App. 409, 412-13, 565

S.E.2d 326, 327 (2002) (quoting Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d

1, 6 (2000)). “In conducting our review, we consider the juror’s entire voir dire, not merely

isolated statements.” Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 (2000).

                                               A. Juror Pollack

        Appellant contends that the trial court erred in denying his motion to strike prospective

juror Pollack for cause. He contends that her responses to questions revealed doubts about her

ability to serve impartially.

        At the beginning of voir dire, the trial court judge gave preliminary instructions, and

asked general questions of the prospective jurors to determine potential bias, including whether

any among them had any reason to believe they could not give the appellant a fair and impartial

trial based on the evidence they heard. See Code § 8.01-358; Rule 3A:14. The record does not

show that Pollack responded to any of those questions. The Commonwealth followed by asking

if any of the veniremen were aware of any personal, political, or religious reason, why any could

not sit impartially. Two of the prospective jurors, but not Pollack, answered the questions in the

affirmative, and were excused.

        When appellant’s counsel asked the potential jurors if “any of you been victims of crime

or had close family or friends who’ve [been] victims[?],” five jurors responded affirmatively to

that question. 3 One prospective juror explained she was mugged fifteen years earlier. The trial

court granted appellant’s motion to strike that juror for cause after she stated that she could

“[p]ossibly,” but “[n]ot absolutely” be certain that the mugging would not affect her ability to be

fair and impartial. Next, Pollack responded that she had been the victim of a robbery some six

months earlier. The following exchange then took place:


        3
            There was no motion to strike three of the jurors for cause.
                                                 -3-
               [DEFENSE COUNSEL]: I ask you the same question I asked the
               lady previous, did this undoubtedly unpleasant [sic], and you think
               that this will have an impact on your ability to give a fair and
               unbiased hearing to [appellant] and the Commonwealth, during
               this proceeding?

               MS. POLLACK: I still think about it.

               [DEFENSE COUNSEL]: Excuse me, ma’am.

               MS. POLLACK: I guess I still think about it.

               [DEFENSE COUNSEL]: So you’re uncertain whether you can
               give an unbiased and fair hearing today?

               MS. POLLACK: Fairly certain.

Then, in response to appellant’s somewhat awkward question, “you’re fairly certain that there’s

an element of uncertainty,” Pollack answered, “yes.” Pollack was not asked any additional

questions.

       We have previously stated

               [t]he proper role for a trial judge is to remain detached from the
               issue of the juror’s impartiality. The trial judge should rule on the
               propriety of counsel’s questions and ask questions or instruct only
               where necessary to clarify and not for the purposes of
               rehabilitation. If a trial judge adheres to this role, an appellate
               court may not set aside the trial judge’s determination of a juror’s
               impartiality if the juror’s responses, even though conflicting,
               support that determination.

McGill v. Commonwealth, 10 Va. App. 237, 242-43, 391 S.E.2d 597, 600 (1990) (emphasis

added). From our review of the entire voir dire, we cannot conclude that the trial court erred in

denying appellant’s motion to strike Pollack for cause. Pollack’s response to appellant’s

question of whether she was uncertain she could “give an unbiased and fair hearing” was that she

was “fairly certain.” The trial court’s ability to observe her body language and demeanor, hear

her voice inflections, and weigh any hesitancy in her responses, were factors available to the trial

court to evaluate in its decision, and are not available to us in a written record. Pope, 234 Va. at

123, 360 S.E.2d at 358. We cannot conclude on appeal from the record presented that the trial
                                                -4-
court abused its discretion in finding Pollack able to be a fair and impartial juror, and in denying

appellant’s challenge for cause.

                                    B. Jurors Zent and Holloman

        Potential jurors Zent and Holloman lived in the area of Alexandria where the victim’s

body was found. Each expressed uneasiness about sitting as a juror because of the likelihood of

seeing witnesses in their neighborhood after trial. Appellant’s counsel explored this expressed

concern in a series of questions with both. In response to one such question, Zent responded that

living in the neighborhood where the crime took place “doesn’t impact my ability to serve on the

[j]ury, it certainly impacts my desire to serve on the [j]ury.” Similarly, when Holloman was

asked if he could give the case a full, fair, and unbiased hearing despite the proximity of his

home to the crime scene, Holloman stated, “I could do so, but, as [Zent] pointed out, the desire is

not there.” 4

        The trial court denied appellant’s motions to strike Zent and Holloman for cause. On

appeal, appellant contends that “[a]lthough the prospective jurors thought themselves capable of

fairness and impartiality, it was clear that their ability to make a decision about [appellant’s] guilt

or innocence would be influenced by the concerns they both expressed.”

        A prospective juror’s reluctance to serve on the jury is not a valid basis for

disqualification. Calhoun v. Commonwealth, 226 Va. 256, 262, 307 S.E.2d 896, 900 (1983).

Their lack of desire to serve on the jury notwithstanding, both Zent and Holloman unequivocally

stated that they were capable of serving fairly and impartially as jurors. Our review of the entire

colloquy between appellant’s counsel with Zent and with Holloman leads us to conclude that the

trial court did not abuse its discretion in failing to strike them for cause. The responses of each

demonstrated only a reluctance to serve, but not the inability to serve as fair and impartial jurors.


        4
            Holloman also stated he planned to move from the neighborhood in the near future.
                                                -5-
Accordingly, we conclude that the trial court did not err in refusing to strike jurors Zent and

Holloman for cause.

                              C. Motion to Strike the Venire

       During voir dire a disturbance, unrelated to appellant’s trial, occurred immediately

outside the courtroom. In response to the disturbance, the trial court ordered a brief recess,

during which a bailiff placed appellant in handcuffs for security purposes. Once the security

concern was alleviated, and court was back in session, the voir dire continued. After the court

excused seven potential jurors for cause or hardship, appellant moved to disqualify the entire

venire and to impanel a new venire for voir dire. That motion was denied. 5 After the voir dire

questioning resumed, the trial court asked appellant if he desired to voir dire the prospective

jurors related to any impact of seeing appellant handcuffed during the disturbance. Appellant

declined to do so, telling the trial court such questioning “might just, you know, hammer it

further into their minds.”

       Appellant argues on appeal that because the entire panel of potential jurors saw him

placed in handcuffs during the brief recess, his presumption of innocence was compromised and

that the trial court’s refusal to disqualify the entire venire prevented him from having a fair and

impartial jury panel.

       “Whether to disqualify an entire venire is a matter committed to the sound discretion of

the trial [court].” Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d 399, 404 (1998).

On this record, and in the absence of any evidence indicating that the potential jurors were biased

by the actions of the deputy to secure the courtroom, we cannot conclude that the trial court

abused its discretion in denying appellant’s motion to strike the entire venire. See id. (motion


       5
        In denying appellant’s motion, the trial court stated to counsel that the potential jurors
probably expected appellant to be in handcuffs in a murder case and that the deputy was simply
responding to an emergency situation.
                                              -6-
denied where no evidence corroborated appellant’s claim that pool of prospective jurors was

tainted).

          Appellant also argues that the trial court failed to give, sua sponte, a cautionary

instruction to the jurors to diminish the possibility of the handcuffing incident influencing their

decision in the case. However, appellant never asked the court to give a cautionary instruction.

Because appellant failed to ask the trial court to give any cautionary instruction, or argue to the

trial court that failure to give such instruction would impair appellant’s right to a jury free from

bias or prejudice, we not will consider that argument for the first time on appeal. Rule 5A:18.

The purpose of Rule 5A:18 is “to ensure that the trial court and opposing party are given the

opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding

unnecessary appeals.” Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408

(2002).

                                              II. CONCLUSION

          From the record before us, we conclude that the trial court did not abuse its discretion in

refusing to strike prospective jurors Zent, Holloman, and Pollack for cause. We also conclude

the trial court did not err in refusing to disqualify the entire venire. Accordingly, we affirm the

judgment of the trial court.


                                                                                        Affirmed.




                                                  -7-
