Marshall Demetrius Moyd v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Huff
UNPUBLISHED
Argued at Chesapeake, Virginia
MARSHALL DEMETRIUS MOYD
MEMORANDUM OPINION * BY
v. Record No. 0317-12-1 JUDGE LARRY G. ELDER
FEBRUARY 19, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
Gregory B. Turpin (Clarke, Dolph, Rapaport, Hull & Brunick,
P.L.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Marshall Demetrius Moyd (appellant) appeals his convictions for first-degree murder,
robbery, two corresponding counts of possession or use of a firearm in the commission of a
felony, and use of a sawed-off shotgun or rifle. He contends the trial court committed reversible
error by striking a juror for cause without conducting individual voir dire. Because appellant
does not contend he was denied a fair and impartial jury, we affirm his convictions.
An accused is constitutionally guaranteed the right to trial by “an impartial jury.” U.S.
Const. amends. VI, XIV; Va. Const. art. I § 8. “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 action constitutes manifest
error.” Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d 1, 6 (2000).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant argues the trial court erred by striking the juror for cause without first
inquiring, through meaningful voir dire, whether he had any bias due to election contests against
the deputy Commonwealth’s attorney’s brother. Appellant contends the trial court must base its
decision to strike a juror on actual evidence that the relationship would prevent the potential
juror from performing his duties as a juror.
During jury selection process prior to appellant’s trial for the instant offenses, one
venireman, Joe Bouchard, indicated that he was a former member of the General Assembly. One
of the attorneys prosecuting the instant case informed the trial court that his brother ran against
Bouchard twice, and the other indicated that he had “actively campaigned” against Bouchard as
well. Defense counsel requested voir dire of Bouchard to determine whether he had any biases
against the prosecutors, but the trial court excused Bouchard without conducting further inquiry.
The trial court empaneled twelve jurors and two alternates. The trial court asked whether “both
sides [were] satisfied with the makeup of the panel,” to which defense counsel responded, “Yes,
Your Honor, we’re satisfied.” The jury ultimately found appellant guilty of the instant offenses.
Assuming without deciding that the trial court erred in dismissing Bouchard without
conducting meaningful individual voir dire, 1 we hold that such error is harmless. “Counsel
conducted voir dire is a statutory, not a constitutional, right.” Charity v. Commonwealth, 24
Va. App. 258, 265, 482 S.E.2d 59, 62 (1997); see Code § 8.01-358. Non-constitutional error is
harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the
parties have had a fair trial on the merits and substantial justice has been reached.” Code
§ 8.01-678; see Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001). Our
1
We note that “[t]rial courts primarily determine whether a venireperson is free from
partiality and prejudice through meaningful voir dire.” Griffin v. Commonwealth, 19 Va. App.
619, 621, 454 S.E.2d 363, 364 (1995) (citing Code § 8.01-358). Here, the trial court did not
conduct such voir dire to determine whether Bouchard “c[ould] lay aside [his] preconceived
views and render a verdict based solely on the law and evidence presented at trial.” Id.
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courts have consistently held that “the exclusion of a qualified juror is not reviewable[,]”
Fishburne v. Commonwealth, 103 Va. 1023, 1025, 50 S.E. 443, 444 (1905), and a trial court
does not abuse its discretion by failing to conduct voir dire where the “record affirmatively
establishes that [the defendant] was tried by an impartial jury,” Charity, 24 Va. App. at 266, 482
S.E.2d at 63; see also Fisher v. Commonwealth, 236 Va. 403, 410-11, 374 S.E.2d 46, 50 (1988)
(finding no abuse of discretion where the trial court denied the defendant’s motion to question
each venireperson individually because he “ma[d]e[] no contention that the final jury lacked
impartiality or that he suffered any prejudice by reason of the court’s rulings with respect to voir
dire”); Seymour v. Commonwealth, 133 Va. 775, 786, 112 S.E. 806, 809 (1922) (“It is altogether
different when an incompetent juror is accepted, because an accused person is entitled to a fair
jury, but if he gets a fair jury he has no right to complain that other fair jurors were not sworn to
try his case.”).
Although appellant contends the trial court’s actions deprived him of his right to an
impartial jury, he does not complain that the jury that heard his case was biased or not impartial.
He puts forth no evidence or argument that the jury selected was not impartial. To the contrary,
defense counsel expressly informed the trial court that he was “satisfied” with the selected jurors
at the conclusion of the jury selection process.
Because nothing in the record suggests that the jury selected was not impartial or not
qualified, we hold the trial court did not commit reversible error. Thus, we affirm appellant’s
convictions.
Affirmed.
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