                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan
Argued at Alexandria, Virginia


ZACHARY MYRON COOPER
                                                            MEMORANDUM OPINION∗ BY
v.        Record No. 0819-03-4                           JUDGE ELIZABETH A. McCLANAHAN
                                                                 AUGUST 24, 2004
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                   Joanne F. Alper, Judge

                    Janell M. Wolfe (Law Office of Janell M. Wolfe; Mark Thrash,
                     on brief), for appellant.

                    Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
                    Attorney General, on brief), for appellee.


          Zachary Cooper appeals his jury convictions for four counts of capital murder in

violation of Code § 18.2-31, for which he received a sentence of four terms of life imprisonment.

The jury also convicted Cooper for use of a firearm in the commission of murder, in violation of

Code § 18.2-53.1, for which he received thirteen years. Cooper contends that the trial court

abused its discretion by allowing spectators to wear badges displaying photographs of the

victims in the courtroom, thereby impairing his right to a fair trial. For the following reasons, we

affirm.

                                              I. Background

          On appeal, we view the facts in the light most favorable to the Commonwealth, the party

prevailing below, together with all reasonable inferences fairly deducible therefrom.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted). In


          ∗
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
May 2002, Cooper was indicted for killing his wife, his five-year-old daughter and his paramour

in an Arlington hotel. At a pretrial hearing in January 2003, the court addressed concerns

regarding procedures that would ensure that the jury would not be negatively prejudiced. Cooper

entered a motion to exclude family members from the first row of seats in the gallery, which the

court granted. The court also made other rulings with regard to jury arrangements, including

segregating the jury from the hallways and elevators used by the public, with which Cooper

agreed.

          The trial began on February 3, 2003. On the second day of the trial, outside the presence

of the jury, Cooper objected to family members wearing “badges” displaying photographs of the

victims, stating that they were “inappropriate.” The badges measured three and five-eighths

inches in diameter. Cooper moved the court to order the spectators not to wear the badges. The

trial court denied the motion, stating,

                 I don’t think there’s anything inherently prejudicial about it.
                 Obviously the jury knows by the number of people in the
                 courtroom that there are family members, and that there are people
                 who are bereaved by the deaths here as well as family members of
                 Mr. Cooper. And to say that they can’t wear something – if they
                 had said something about, you know, Zachary Cooper killed my
                 child or something, I would agree with you. But I think something
                 in that manner which is the photograph with a ribbon on it with no
                 words or nothing else, if nothing it identifies them as a family
                 member or someone who cared about this person.

                 I don’t think it does any more than that, and certainly the jury will
                 see the photos of both the victims, the ones that we used in voir
                 dire and other photos, and I don’t think that the fact that they’re
                 wearing those on their lapels makes any difference or causes any
                 prejudice to the defense, so I’m going to deny the motion to in any
                 way order them –

                                *         *    *         *     *       *

                 – not to wear them. Your exception is noted.




                                                   -2-
Cooper renewed the motion three days later, arguing, “[t]here seems to be more that have

appeared.” He stated in his renewed motion that there was “a row or two” of people wearing

the badges and that there were people in the hallway who had them. The trial court again

denied the motion saying,

               I still think that I haven’t seen any great numbers. I mean. I
               haven’t counted how many are here today but there’s not a large
               number of people here wearing them. I mean, they have – the jury
               has seen the photos of Ms. Cooper. I’m not sure if it’s the same
               photo. My eyes don’t go that far.

               But it seems to me to be the same photo as the one that was
               introduced by the Commonwealth and identified by the
               grandmother, and in fact it indicates that there are family members
               here, people who care about her. I don’t think they’re in any way
               prejudicial.

               The jury has to make a decision on the merits, and obviously there
               are people in this community who are involved and interested in the
               case and who may have cared about the deceased just as there may
               be family members here of the defendant as well and care about
               him.

               I don’t think this causes any prejudice.

After a ten-day trial, the jury found Cooper guilty of the charges. This appeal followed.

                                           II. Analysis

       “Virginia courts have consistently held that ‘the conduct of a trial is committed to the

sound discretion of the trial court.’” Via v. Commonwealth, 42 Va. App. 164, 181, 590 S.E.2d

583, 591 (2004) (quoting Justus v. Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910

(1981), cert. denied, 455 U.S. 983 (1982)). See also Watkins v. Commonwealth, 229 Va. 469,

484, 331 S.E.2d 422, 433 (1985); Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344

S.E.2d 389, 393 (1986). “In reviewing an exercise of discretion, 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.” Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997).

                                               -3-
        Cooper cites no authority for the proposition that allowing spectators to wear badges with

photographs of the victims is inherently prejudicial. Cooper contends that the trial court abused

its discretion by not excluding the spectators wearing the badges. Code § 19.2-266 provides:

“the court may, in its discretion, exclude from the trial any persons whose presence would impair

the conduct of a fair trial.”

        The Virginia Supreme Court has held that use of life photographs of the victims as

evidence in the trial itself is not inherently prejudicial, especially in a case where the jury will

also view crime scene photographs of the victims. Lilly v. Commonwealth, 255 Va. 558, 571,

499 S.E.2d 522, 532 (1998), rev’d on other grounds, 527 U.S. 116 (1999). In Lilly, the Court

held that it was within the sound discretion of the trial court to determine that the defendant was

not prejudiced by the display of the life photograph of the victim, and the court found no abuse

of that discretion in that instance. See also Jackson v. Commonwealth, 267 Va. 178, 202, 590

S.E.2d 520, 533 (2004); Bennett v. Commonwealth, 236 Va. 448, 471, 374 S.E.2d 303, 317

(1988). In the case at bar, crime scene photographs of the victims were in evidence and were

viewed by the jurors. Consequently, we find that allowing the spectators to wear badges

portraying photographs of the victims was not inherently prejudicial and did not erode Cooper’s

right to a fair trial.

        Cooper does not argue that he suffered any actual prejudice as a result of the circuit

court’s decision to allow the spectators to wear the badges. He merely points out that spectators

wearing the badges were seated in the second row of the gallery “in the direct line of vision of

the jurors as they exited the jury room to enter the jury box.”

        In Johnson v. Commonwealth, 259 Va. 654, 676, 529 S.E.2d 769, 781, cert. denied, 531

U.S. 981 (2000), the defendant contended that the victim’s family and friends were allowed to

wear “campaign-size” buttons displaying the victim’s photograph in the courtroom. He asserted

                                                 -4-
that although the jurors were not seated close enough to the audience to identify the victim’s

image on the buttons, they could tell that the buttons “had something to do with” the victim and,

thus, the jurors were improperly influenced. The Court found no merit in the argument, stating

that there was nothing in the record to support the contention that any of the jurors saw the

buttons displaying the victim’s photograph. Id. See also Nguyen v. State, 977 S.W.2d 450, 457

(Tex. App. 1998) (no evidence in record to show spectators wearing buttons was prejudicial);

State v. Braxton, 477 S.E.2d 172, 177 (N.C. 1996) (without evidence in record showing

relationship between the murder victims and the spectators wearing the badges, the court would

not infer an intention to influence the jury’s verdict); Cagle v. State, 6 S.W.3d 801, 803 (Ark.

App. 1999) (no evidence in record that demonstrated jury saw badges being worn by some

spectators or, if they did, that it affected their ability to be fair jurors); State v. Bradford, 864

P.2d 680, 686-87 (Kan. 1993) (defendant failed to provide evidence that any jurors saw or were

influenced by spectators wearing buttons); Kenyon v. State, 946 S.W.2d 705, 710-11 (Ark. App.

1997) (no evidence that jurors were prejudiced by spectators wearing badges).

        The record in this case shows that the court took active steps to ensure that the jurors

were not negatively influenced by the spectators, including segregating the jurors from persons

in the hallways and elevators, and by excluding the victim’s family members, many of whom

were wearing the badges, from the front row of the gallery. The record also shows that there

were “always some people” seated in the front row between the spectators wearing the badges

and the jury. The judge noted that there were “not a large number of people” wearing the badges

and that it was difficult to see whose photograph was on the badges. Therefore, there is nothing

in the record to show that the trial court’s decision caused Cooper actual prejudice.

        Cooper has not shown any evidence that the jury saw the badges being worn by some of

the spectators or, if they did, that this affected their ability to be fair jurors. “[I]f the defendant

                                                  -5-
fails to show actual prejudice, the inquiry is over.” Holbrook v. Flynn, 475 U.S. 560, 572

(1986).1



                                          III. Conclusion

       Cooper has failed to demonstrate that allowing the spectators to wear the badges was

inherently prejudicial, or that he suffered any actual prejudice because the jurors may have seen

the spectators wearing the badges. Code § 19.2-266 provides: “the court may, in its discretion,

exclude from the trial any persons whose presence would impair the conduct of a fair trial.” We

find no abuse of discretion here.

                                                                                           Affirmed.




       1
          The holding in this opinion does not indicate that the wearing of buttons by spectators in
a trial could never deprive a defendant of a fair trial. A fair trial occurs when the verdict is based
on the evidence and not on factors external to the proof at trial. Flynn, 475 U.S. at 572. Cooper
has not demonstrated that the verdict in this case was based on any factor external to the
evidence presented at trial.
                                                 -6-
Benton, J., dissenting.

       The United States Supreme Court “has declared that one accused of a crime is entitled to

have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and

not on grounds of . . . other circumstances not adduced as proof at trial.” Taylor v. Kentucky,

436 U.S. 478, 485 (1978). Because “[t]he right to a fair trial is a fundamental liberty secured by

the Fourteenth Amendment . . . , courts must be alert to factors that may undermine the fairness

of the fact finding process.” Estelle v. Williams, 425 U.S. 501, 503 (1976).

               “Every procedure which would offer a possible temptation to the
               average man . . . to forget the burden of proof required to convict
               the defendant, or which might lead him not to hold the balance
               nice, clear and true between the State and the accused, denies the
               latter due process of law.”

Estes v. Texas, 381 U.S. 532, 543 (1965) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).

       The record indicates “a row or two” of people who were described as wearing badges

approximately four inches in diameter with photographs of the victims were separated from the

jury by one row of seats. The trial judge noted that she “could see the badges” from the bench

and that she “was assuming [the photograph on the badge] was one of the victims.”

       These demonstrations, albeit passive, created “an unacceptable risk . . . of impermissible

factors coming into play.” Williams, 425 U.S. at 505. They clearly had the effect of creating an

impression in the minds of the jury of an unmistakable sign of Zachary Cooper’s guilt.

               [T]hough far more subtle than a direct accusation, the buttons’
               message was all the more dangerous precisely because it was not a
               formal accusation. Unlike the state’s direct evidence, which could
               have been refuted by any manner of contrary testimony to be
               judged ultimately on the basis of each declarant’s credibility, the
               buttons’ informal accusation was not susceptible to traditional
               methods of refutation. Instead, the accusation stood unchallenged,
               lending credibility and weight to the state’s case without being
               subject to the constitutional protections to which such evidence is
               ordinarily subjected.

Norris v. Risley, 918 F.2d 828, 833 (9th Cir. 1990).
                                               -7-
       Cooper had a right to “be tried in an atmosphere undisturbed by so huge a wave of public

passion.” Irvin v. Dowd, 366 U.S. 717, 728 (1961). The circumstance here “involves such a

probability that prejudice will result that it [must be] deemed inherently lacking in due process.”

Estes, 381 U.S. at 542-43. See also Sheppard v. Maxwell, 384 U.S. 333, 352 (1966). Permitting

the demonstration to continue in the jury’s presence during the trial, the trial judge exposed the

jury to a continuous reminder that these spectators were urging a finding of Cooper’s guilt. I

would hold that the refusal to stop this demonstration was prejudicial to Cooper’s right to a fair

and impartial jury. I, therefore, dissent.




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