Stanley Reid v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
STANLEY REID
v. Record No. 0894-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Robert W. Stewart, Judge
James S. Ellenson for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
In this appeal from a judgment of the Circuit Court of the
City of Norfolk (trial court) that approved a jury verdict
convicting him for first degree murder, the sole issue presented
by Stanley Reid (appellant) is whether the trial court erred when
it refused to grant his motion for a mistrial and reconstitute
the jury panel. Finding no error, we affirm the judgment of the
trial court.
Appellant was indicted and tried for feloniously killing and
murdering Leon Mattox. At trial, pursuant to the provisions of
Code § 19.2-242, a jury consisting of twenty persons was
impaneled, from which twelve were to be selected along with two
alternates. Counsel for each party was given the opportunity to
exercise four peremptory strikes. The Commonwealth made one
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*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
initial strike of a black female who previously had been
represented by defense counsel. That strike was followed by a
strike made by appellant. Thereafter, the prosecutor advised the
trial court that he had "no reason to make any other strikes
based on peremptory challenges" and, citing Code § 19.2-262(4),
stated to the trial court that in situations where the
Commonwealth declined to make its strikes that section had been
applied. Sub-section (4) provides:
In any case in which persons indicted for
felony elect to be tried jointly, if counsel
or the accused are unable to agree on the
full number to be stricken, or, if for any
other reasons counsel or the accused fail or
refuse to strike off the full number of
jurors allowed such party, the clerk shall
place in a box ballots bearing the names of
the jurors whose names have not been stricken
and shall cause to be drawn from the box such
number of ballots as may be necessary to
complete the number of strikes allowed the
party or parties failing or refusing to
strike. Thereafter, if the opposing side is
entitled to further strikes, they shall be
made in the usual manner.
(Emphasis added.) That section clearly applies to "persons
indicted for felony [who] elect to be tried jointly." The
conviction appealed from was a single-defendant trial. Nothing
in that section provides an excuse for the failure of the
Commonwealth to prosecute appellant on the charge for which he
has been indicted.
At trial, appellant argued that that Code section did not
relieve the Commonwealth from meeting the requirements of Batson
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v. Kentucky, 476 U.S. 79 (1986); however, in this appeal, the
Batson issue is not raised. Instead, appellant here argues only
that the trial court erred when it applied the procedure for
making peremptory strikes as provided in Code § 19.2-262. We
agree that the provisions of sub-section (4) of Code § 19.2-262
do not apply to the refusal of the Commonwealth to make the
peremptory strikes as directed by the General Assembly in
sub-sections (2) and (3) of that Code section. Sub-sections (2)
and (3) establish the number of jurors required in criminal cases
and how they are to be selected. Those sub-sections provide:
(2) Twelve persons from a panel of twenty
shall constitute a jury in a felony case.
Seven persons from a panel of thirteen shall
constitute a jury in a misdemeanor case.
(3) The parties or their counsel,
beginning with the attorney for the
Commonwealth, shall alternately strike off
one name from the panel until the number
remaining shall be reduced to the number
required for a jury.
The directive is that beginning with the Commonwealth, the
parties "shall" alternately strike one name until the jury has
been selected. No alternative is given to the Commonwealth.
The ultimate question before this Court is, did the parties
receive a fair trial, not a perfect trial, and did an action or
inaction of the trial court constitute reversible error.
The trial judge is charged with the duty to see that the
trial proceeds in an orderly and expeditious manner. An option
was to inform the Commonwealth of its duty to see that the
prosecution proceed as provided by law and that the failure to do
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so could result in dismissal of the charge for failure to
prosecute. Another would be to use a procedure approved by the
legislature for defendants who are jointly tried. The latter
procedure was applied in this case, and we find no reversible
trial court error in selecting the jury as was done here.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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