PRESENT: Hassell, C.J., Keenan,1 Koontz, Lemons, Goodwyn, and 

Millette, JJ., and Lacy, S.J.

PAXTON HAWTHORNE, CO-ADMINISTRATOR 

OF THE ESTATE OF JOYCE HAWTHORNE, ET AL. 

 OPINION BY 

v. Record No. 091127 JUSTICE BARBARA MILANO KEENAN 

 April 15, 2010 

TIMOTHY VANMARTER 

KEVIN GUTHRIE 

v. Record No. 091156 

TIMOTHY VANMARTER 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Charles N. Dorsey, Judge 

In these appeals of a judgment for a defendant in a 

vehicular accident case alleging ordinary and gross negligence, 

we consider several issues, including the circuit court’s 

holding that the defendant, a police officer, was entitled to 

sovereign immunity. We also consider the defendant’s motion to 

dismiss one of the appeals. 

I. Pre-Trial Rulings 

In June 2005, Joyce Hawthorne was killed and Kevin 

Guthrie was injured when a police vehicle driven by Senior 

Officer Timothy VanMarter of the Roanoke County Police 

 1

 Justice Keenan participated in the hearing and decision 

of this case prior to her retirement from the Court on March 

12, 2010. 
Department struck the vehicle Hawthorne was driving. Guthrie 

and the co-administrators of Hawthorne’s Estate, Paxton 

Hawthorne and Joseph Anthony (the Administrators), filed 

separate motions for judgment2 in the Circuit Court of the City 

of Roanoke against VanMarter, alleging negligence.3 The 

circuit court granted VanMarter’s motion to transfer the cases 

to the Circuit Court of Roanoke County, and the cases were 

consolidated for trial. 

VanMarter filed a plea in bar asserting that he was 

entitled to sovereign immunity. VanMarter argued that at the 

time of the accident, he was attempting to “overtake” a 

vehicle that was traveling at an excessive rate of speed. 

Contending that this conduct was discretionary in nature, 

VanMarter asserted that he was immune from liability for 

ordinary negligence. VanMarter also argued that, as a matter 

of law, his conduct was not grossly negligent because he 

exercised some care by applying the police vehicle’s brakes 

and by swerving in an attempt to avoid the accident. 

 2

 These motions for judgment were filed prior to the 

amendment of Part Three of the Rules of Court, effective 

January 1, 2006, to provide that a civil action is commenced 

by filing a “complaint.” Rules 3:1 and 3:2; see also Ahari v. 

Morrison, 275 Va. 92, 96 n.2, 654 S.E.2d 891, 893 n.2 (2008). 

3

 In their respective motions for judgment, Guthrie and 

the Administrators both named James R. Lavinder, Chief of 

Police of the Roanoke County Police Department, as a 

defendant. However, their amended complaints named only 

VanMarter as a defendant. 

2
In response, the Administrators and Guthrie 

(collectively, the plaintiffs) asserted that the doctrine of 

sovereign immunity was inapplicable because VanMarter never 

activated his police vehicle’s emergency equipment, and 

because he was “overtaking” rather than pursuing a speeding 

vehicle. The plaintiffs further argued that any determination 

of gross negligence required factual findings that could not 

be decided by the court as a matter of law. 

In a hearing conducted on the defendant’s plea in bar, 

the circuit court considered VanMarter’s testimony and the 

memoranda and arguments of counsel. The plaintiffs did not 

present the testimony of any witnesses for the court’s 

consideration. Based on VanMarter’s testimony, the circuit 

court found that VanMarter was pursuing a speeding vehicle at 

the time of the accident. The circuit court held that 

VanMarter’s actions were discretionary in nature and that, 

therefore, the plaintiffs’ claims of ordinary negligence were 

barred by the doctrine of sovereign immunity. 

Following the circuit court’s ruling on the plea in bar, 

the plaintiffs conducted depositions of two potential trial 

witnesses. These witnesses stated that during a period of 

between 30 and 45 minutes before the collision, they stood 

about 250 feet from Chaparral Drive and were engaged in 

conversation. The two witnesses related that they did not 

3
observe a speeding vehicle before hearing the collision. 

Arguing that these witness accounts were “[n]ewly 

[d]iscovered” evidence, the plaintiffs filed a motion “to 

[a]mend [p]rior [r]uling,” asserting that the deposition 

testimony created a factual dispute regarding the presence of 

a speeding vehicle. The plaintiffs asked that the circuit 

court allow the two witnesses to testify at trial, and submit 

to the jury the factual issue whether VanMarter was pursuing a 

speeding vehicle. The plaintiffs argued that if the jury 

determined that there was no such speeding vehicle, VanMarter 

would not be entitled to the protection of sovereign immunity 

and the jury should be instructed on both ordinary and gross 

negligence. 

VanMarter contended that this testimony was not “newly 

discovered” because the witnesses’ names were provided by the 

plaintiffs in discovery at least two weeks before the hearing 

on the plea in bar. VanMarter also asserted that the 

witnesses’ proffered statements did not contradict VanMarter’s 

account of the events that night. Thus, VanMarter asserted, 

the proffered testimony would not have changed the circuit 

court’s sovereign immunity determination. 

The circuit court agreed with VanMarter and denied the 

plaintiffs’ motion to reconsider the sovereign immunity 

holding. The circuit court concluded that the witnesses’ 

4
testimony did not qualify as “after-discovered evidence,” and 

further held that even if the court had considered the 

proffered testimony, the witnesses’ statements would not have 

affected the court’s sovereign immunity determination. The 

plaintiffs did not request that they be allowed to present the 

testimony of the two witnesses to the jury for impeachment 

purposes or on the issue of gross negligence. 

II. Trial 

The evidence at trial showed that, at the time the 

accident occurred, Guthrie was riding as a passenger in a 

vehicle driven by Hawthorne. Guthrie testified that 

immediately before the accident, Hawthorne looked in both 

directions before leaving a driveway and turning onto 

Chaparral Drive. Guthrie testified that he did not observe 

any other vehicles, and did not see flashing emergency lights 

or hear an emergency siren before the collision. Guthrie 

stated that the last thing he remembered after Hawthorne 

turned his vehicle onto Chaparral Drive was the “sudden 

impact” of something hitting the vehicle. 

Guthrie also presented the testimony of witnesses who 

qualified as experts on subjects including accident 

investigation and the operation of emergency vehicles. From 

these witnesses, the jury heard evidence about, among other 

things, the conditions of the vehicles involved in the 

5
collision, the line of sight from the driveway “looking down” 

Chaparral Drive, and the amount of time it would take a 

vehicle to travel that distance. The jury also was presented 

evidence regarding the “proper protocol” for activation of 

emergency equipment on a police vehicle during the pursuit of 

another vehicle. 

As part of his case, Guthrie also presented the 

deposition testimony of VanMarter. VanMarter stated that on 

the night of the accident, he was driving his police vehicle 

northbound on Chaparral Drive and observed a car traveling in 

the opposite direction at 63 miles-per-hour, as measured by 

police radar equipment. The posted speed limit at that 

location was 25 miles-per-hour. VanMarter stated that he made 

a “U-turn” in order to pursue the car and accelerated his 

police vehicle by pressing its gas pedal to the floor. 

VanMarter conceded that he did not activate the vehicle’s 

emergency lights and siren at that time. 

In this deposition testimony, VanMarter also stated that 

as his speed increased, he looked down to locate and activate 

his vehicle’s emergency equipment. At the same time, the 

vehicle driven by Hawthorne entered onto Chaparral Drive from 

a driveway. VanMarter testified that when he saw Hawthorne’s 

car, he applied his vehicle’s brakes, and attempted to turn 

6
his vehicle so that it would strike the rear of Hawthorne’s 

car. 

In his defense, VanMarter presented the testimony of two 

witnesses who qualified as experts on the subject of emergency 

vehicle training instruction. These witnesses testified 

regarding the accepted protocol for activation of emergency 

equipment of police vehicles. They stated that when making a 

determination whether to “overtake” a speeding vehicle and 

whether to activate a police vehicle’s emergency lights and 

siren, police officers must take into account various factors 

including the time of day, road and vehicle conditions, the 

amount of traffic, and the safety of others. 

VanMarter also presented the testimony of an accident 

investigator and a mechanical engineer. The accident 

investigator testified regarding the unobstructed line of 

sight that Hawthorne would have had before turning onto 

Chaparral Drive. The mechanical engineer testified regarding 

the force of the impact and the vehicle damage caused by the 

collision. 

At the close of all the evidence, the parties submitted 

proposed jury instructions. As relevant to this appeal, the 

plaintiffs objected to Instructions 3 and 11, which are 

described below. The circuit court overruled these objections 

and instructed the jury accordingly. 

7
The jury returned a verdict in favor of VanMarter. The 

circuit court denied the plaintiffs’ motion to set aside the 

verdict and entered final judgment in accordance with the jury 

verdict. The plaintiffs appeal from the circuit court’s 

judgment. 

III. Motion to Dismiss 

Before addressing the various rulings and holdings 

assigned as error, we will consider VanMarter’s motion to 

dismiss the Hawthorne Estate’s appeal. VanMarter argues that 

the appeal filed on behalf of the Hawthorne Estate must be 

dismissed because the Administrators filed the appeal in a pro 

se capacity. VanMarter asserts that our holding in Kone v. 

Wilson, 272 Va. 59, 630 S.E.2d 744 (2006), that an 

administrator of an estate may not file an action in a pro se 

capacity, unequivocally bars the Administrators’ appeal here. 

In response, the Administrators argue that the holding in 

Kone is not applicable to this appeal because that holding 

does not address whether an administrator may file an appeal 

in this Court, as opposed to a complaint in a circuit court, 

in a pro se capacity. The Administrators alternatively 

contend that even if the holding in Kone is applicable to the 

filing of an appeal, the Administrators have a personal 

interest in the outcome of the present appeal to recover their 

fees and, therefore, were permitted to file their appeal in a 

8
pro se capacity. Finally, the Administrators argue that even 

if they were prohibited from filing the appeal in a pro se 

capacity, the notice of appeal filed by Guthrie in this 

consolidated proceeding had the effect of perfecting the 

Administrators’ appeal. We disagree with the Administrators’ 

arguments. 

We first observe that the notice of appeal filed by 

Guthrie did not perfect the Administrators’ appeal. Although 

Rule 5:9(c) is permissive in nature, and allows one notice of 

appeal to be filed on behalf of all parties when two or more 

cases have been tried together, the plaintiffs in the present 

cases each filed separate notices of appeal, and Guthrie’s 

notice of appeal did not state that it was being filed on 

behalf of the Hawthorne Estate. Thus, the record before us 

plainly shows that Guthrie’s attorney was not acting on behalf 

of the Hawthorne Estate when he filed Guthrie’s notice of 

appeal. 

We also disagree with the Administrators’ argument that 

our holding in Kone is distinguishable from the present case 

because that holding addressed a pro se filing in the circuit 

court, rather than in this Court. Our holding in Kone was 

based on the representative role of an administrator, not on 

the type of court in which the administrator’s action was 

filed. 

9
In Kone, we explained that the Virginia Wrongful Death 

Act, Code §§ 8.01-50 through -56, vests a right of action for 

wrongful death in a decedent’s personal representative, but 

that the cause of action belongs to the decedent’s 

beneficiaries. Id. at 62, 630 S.E.2d at 746. We held that an 

administrator of an estate acts as a surrogate for the 

beneficiaries of the estate and cannot file a cause of action 

in a pro se capacity, because the administrator is merely 

acting in a representative capacity for the true parties in 

interest. Id. at 62-63, 630 S.E.2d at 746. 

Although a licensed attorney properly filed the present 

action in the Administrators’ names in the circuit court, the 

notice of appeal filed in this Court by the Administrators 

stated that each was acting in a “pro se” capacity as a coadministrator of the Hawthorne Estate. Like the administrator 

in Kone, the Administrators in the present case can act only 

in a representative capacity for the beneficiaries of the 

Hawthorne Estate. Thus, because the Administrators were not 

the true parties in interest, they were not entitled to file 

the present appeal in a pro se capacity. See id. at 62-63, 

630 S.E.2d at 746. 

We find no merit in the Administrators’ argument that 

they nevertheless were entitled to file their appeal in a pro 

se capacity because they have a personal interest in the 

10
outcome of the appeal. The Administrators did not become 

aggrieved parties in the case merely by virtue of their desire 

to recover the fees purportedly owed to them for serving as 

administrators of the Hawthorne Estate.4

Because our holding in Kone is controlling, we conclude 

that the Administrators did not have a right to file the 

appeal in a pro se capacity for a cause of action belonging to 

the Hawthorne Estate’s beneficiaries. See id. at 62-63, 630 

S.E.2d at 746. Accordingly, we will grant VanMarter’s motion 

to dismiss the Administrators’ appeal. 

IV. Plea in Bar Asserting Sovereign Immunity 

Guthrie argues that the circuit court erred when it 

refused to submit to the jury the factual question whether 

VanMarter was engaged in overtaking a speeding vehicle at the 

time of the collision. Guthrie asserts that the circuit court 

improperly made a factual determination when the court 

concluded that the proffered testimony of the two witnesses 

would not have changed the outcome of the circuit court’s 

sovereign immunity holding. 

 4

 There also is no merit in the Administrators’ argument 

that Anthony was authorized to file this appeal as an attorney 

representing the Hawthorne Estate, because the record does not 

demonstrate that he filed the appeal in his capacity as a 

licensed attorney. 

11
Guthrie argues that he had no obligation to bring the two 

witnesses to the circuit court’s attention during the plea in 

bar hearing because VanMarter only asked the circuit court to 

determine whether an officer overtaking a speeding vehicle is 

entitled to sovereign immunity. Guthrie asserts that he was 

not required to raise the separate factual question whether 

the speeding vehicle in fact existed, and argues that this 

factual dispute should have been submitted at trial to the 

jury. Guthrie maintains that a jury presented with that 

testimony reasonably could have concluded that VanMarter was 

not apprehending a speeding vehicle and, thus, was liable for 

his acts of ordinary negligence. We disagree with Guthrie’s 

arguments. 

We first observe that the circuit court’s ruling 

declining to reopen the record and reconsider its ruling on 

the plea in bar was a discretionary determination. The 

essence of any discretionary determination is the exercise of 

judgment. Only when the record does not fairly support the 

circuit court’s exercise of its judgment will we say that an 

abuse of discretion has occurred. See Grattan v. 

Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009). 

Thus, we will not disturb the circuit court’s judgment absent 

a clear abuse of that discretion. See Murphy v. Commonwealth, 

246 Va. 136, 148, 431 S.E.2d 48, 55 (1993); Hechler Chevrolet, 

12
Inc. v. General Motors Corp., Inc., 230 Va. 396, 403-04, 337 

S.E.2d 744, 748-49 (1985). 

A plea in bar asserts a single issue, which, if proved, 

creates a bar to a plaintiff’s recovery. Schmidt v. Household 

Fin. Corp., II, 276 Va. 108, 116, 661 S.E.2d 834, 838 (2008); 

Baker v. Poolservice Co., 272 Va. 677, 688, 636 S.E.2d 360, 

366 (2006); Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594, 

537 S.E.2d 580, 590 (2000). The party asserting a plea in bar 

bears the burden of proof on the issue presented. Baker, 272 

Va. at 688, 636 S.E.2d at 367; Cooper Indus., 260 Va. at 594, 

537 S.E.2d at 590; Tomlin v. McKenzie, 251 Va. 478, 480, 468 

S.E.2d 882, 884 (1996). 

The issue raised by a plea in bar may be submitted to the 

circuit court for decision based on a discrete body of facts 

identified by the parties through their pleadings, or 

developed through the presentation of evidence supporting or 

opposing the plea. Kroger Co. v. Appalachian Power Co., 244 

Va. 560, 562, 422 S.E.2d 757, 758 (1992); see Schmidt, 276 Va. 

at 112, 661 S.E.2d at 836; Niese v. City of Alexandria, 264 

Va. 230, 233, 564 S.E.2d 127, 129 (2002). If the parties 

present evidence on the plea ore tenus, the circuit court’s 

factual findings are accorded the weight of a jury finding and 

will not be disturbed on appeal unless they are plainly wrong 

or without evidentiary support. Jennings v. Kay Jennings 

13
Family Ltd. P’ship, 275 Va. 594, 600, 659 S.E.2d 283, 287 

(2008); Cooper Indus., 260 Va. at 595, 537 S.E.2d at 590. 

If the facts underlying the plea in bar are contested, a 

party may demand that a jury decide the factual issues raised 

by the plea. See Code § 8.01-336(B); Bethel Inv. Co. v. City 

of Hampton, 272 Va. 765, 770, 636 S.E.2d 466, 470 (2006); 

Upper Occoquan Sewage Auth. v. Blake Constr. Co., Inc., 266 

Va. 582, 585-86, 587 S.E.2d 721, 723 (2003); Kroger, 244 Va. 

at 562, 422 S.E.2d at 758. Conversely, if the facts are 

disputed and no demand for a jury is made, the “whole matter 

of law and fact” may be decided by the court. See Code 

§ 8.01-336(B). 

In the present case, the parties proceeded on the plea in 

bar as if the facts were uncontested. Guthrie neither 

informed the circuit court of the potential witnesses he had 

identified during discovery, nor did he request additional 

time to depose those witnesses. Moreover, Guthrie failed to 

request that a jury decide the factual issues presented by the 

plea in bar, agreed that the circuit court should decide those 

issues, and did not object when the circuit court made the 

factual determination that VanMarter was in fact attempting to 

overtake a speeding vehicle. 

By submitting the entire decision on the plea in bar to 

the circuit court judge, Guthrie effectively agreed to have 

14
the judge decide all legal and factual questions underlying 

the single issue whether sovereign immunity shielded VanMarter 

from Guthrie’s allegations of ordinary negligence. See

Kroger, 244 Va. at 562, 422 S.E.2d at 758. Thus, we hold that 

Guthrie waived his right to have the jury at trial decide the 

factual issues pertaining to the question of sovereign 

immunity. 

Additionally, we note that the circuit court’s decision 

declining to reopen the issues pertaining to its sovereign 

immunity holding fully reflected the function of the plea in 

bar, which is to narrow the litigation by resolving an issue 

that will determine whether a plaintiff may proceed to trial 

on a particular cause of action. See Schmidt, 276 Va. at 116, 

661 S.E.2d at 838; Tomlin, 251 Va. at 480, 468 S.E.2d at 884. 

This function would have been undermined in the present case 

had the circuit court set aside its ruling and permitted 

Guthrie an opportunity to relitigate the issues already 

addressed without objection at the hearing on the plea in bar. 

We also hold that the circuit court did not err in 

concluding that the testimony of the two witnesses failed to 

qualify as “after-discovered” evidence. This testimony was 

not “after-discovered,” because Guthrie disclosed the identity 

of these witnesses before submitting the sovereign immunity 

issue to the circuit court and, therefore, could have 

15
discovered the content of their testimony by exercising 

reasonable diligence. See Orndorff v. Commonwealth, 271 Va. 

486, 502, 628 S.E.2d 344, 353 (2006); Odum v. Commonwealth, 

225 Va. 123, 130-31, 301 S.E.2d 145, 149 (1983); Fulcher v. 

Whitlow, 208 Va. 34, 39, 155 S.E.2d 362, 366 (1967). 

Accordingly, we hold that the circuit court did not abuse its 

discretion in refusing to reopen its ruling on the plea in bar 

and allow the testimony of the two witnesses to be presented 

at trial, because Guthrie could have presented that testimony 

at the hearing on the plea in bar or have requested additional 

time to develop this evidence at that hearing. 

V. Venue 

We next consider Guthrie’s argument that the circuit 

court abused its discretion in granting VanMarter’s motion to 

transfer venue. VanMarter argued that the City of Roanoke was 

an improper venue because he had relocated his residence from 

the City to Roanoke County before this action was filed. In 

response, Guthrie asserted that the City of Roanoke was a 

permissible venue under Code § 8.01-262 because VanMarter 

retained a residence there and conducted “substantial business 

activity” in the City. 

At a hearing on the motion to transfer venue, VanMarter 

testified that he lived with his girlfriend, Melissa Alderman, 

on Springtree Drive in the City of Roanoke until July 2005, 

16
when VanMarter moved to the County. Alderman testified that 

VanMarter moved from her home in the summer of 2005. 

During cross-examination, VanMarter conceded that after 

he relocated to the County, he retained a key to the 

Springtree Drive residence and stored certain furniture and 

personal items there. VanMarter testified that he completed a 

change of address form with the United States Postal Service, 

but that some of his mail still was delivered to the 

Springtree Drive address after this litigation was initiated. 

VanMarter also stated that in October 2005, his Police 

Department paycheck and his voter registration continued to 

list the Springtree Drive house as his address. 

VanMarter further testified on cross-examination that he 

drives through certain portions of Roanoke City on his way to 

work, and that he travels into the City more than once a month 

to shop, to attend movies, and to dine at City restaurants. 

He also testified that at the time this action was filed, he 

was enrolled in classes at Virginia Western Community College 

in the City of Roanoke and had been taking classes for about 

six months. 

After considering this evidence and the arguments of 

counsel, the circuit court held that VanMarter had proved that 

he resided in Roanoke County at the time this action was 

filed. The circuit court further held that VanMarter’s 

17
conduct in the City of Roanoke did not constitute “substantial 

business activity” as contemplated by Code § 8.01-262(3). 

On appeal, Guthrie asserts that VanMarter failed to 

present sufficient evidence to establish that the venue chosen 

by the plaintiffs was improper. Guthrie argues that VanMarter 

failed to prove that he moved to Roanoke County before the 

date the action was initiated. Guthrie further argues that 

VanMarter conducted substantial business activity in the City 

of Roanoke and, therefore, that the circuit court abused its 

discretion in transferring venue to Roanoke County. We 

disagree with Guthrie’s arguments. 

We observe that Code § 8.01-262 provides in relevant part 

that an action may be filed “[w]herein the defendant resides” 

or “[w]herein the defendant regularly conducts substantial 

business activity.” Code § 8.01-262(1), (3). The party 

objecting to venue has the burden to establish that the venue 

chosen by the plaintiff was improper. Barnett v. Kite, 271 

Va. 65, 69, 624 S.E.2d 52, 54 (2006); Meyer v. Brown, 256 Va. 

53, 57, 500 S.E.2d 807, 809 (1998). The determination whether 

the selected venue is proper is committed to the sound 

discretion of the circuit court. Barnett, 271 Va. at 69, 624 

S.E.2d at 54; Meyer, 256 Va. at 56-57, 500 S.E.2d at 809. 

We hold that the circuit court did not abuse its 

discretion in granting VanMarter’s motion to change venue. 

18
The record supports the circuit court’s conclusion that 

VanMarter lived in Roanoke County at the time the suit was 

filed in the fall of 2005. Alderman corroborated VanMarter’s 

testimony that in the summer of 2005, he moved out of her home 

located in the City of Roanoke. VanMarter also completed a 

change of address form in order to receive mail at his home in 

Roanoke County. The fact that VanMarter continued to receive 

some mail at Alderman’s home, retained a key to her home, and 

stored personal property there did not contradict his 

testimony that he resided in Roanoke County before Guthrie 

filed the present action. 

The record also supports the circuit court’s conclusion 

that VanMarter did not regularly conduct substantial business 

activity in the City of Roanoke. Although VanMarter testified 

about his enrollment in classes at a community college in the 

City of Roanoke, the record does not provide any further 

details about these classes and does not indicate that they 

were related to his work as a police officer. 

The evidence also showed that VanMarter entered the City 

of Roanoke to pursue personal and recreational interests, 

including dining at restaurants, shopping, and attending 

movies. VanMarter also drove on roads located in the City on 

his way to work as a police officer in Roanoke County. 

19
However, these transient activities, considered as a whole, do 

not constitute substantial business activity. 

Nevertheless, Guthrie asserts that he satisfied the test 

of conducting substantial business activity in the City 

because, under a certain Roanoke City ordinance, VanMarter was 

authorized to perform some law enforcement functions in the 

City. We do not consider this argument, however, because 

Guthrie did not raise it before the circuit court. Guthrie’s 

failure to do so prohibits us from considering this argument 

for the first time on appeal. See Rule 5:25; Green v. Va. 

State Bar, 278 Va. 162, 178, 677 S.E.2d 227, 235 (2009); 

Graham v. Cook, 278 Va. 233, 248, 682 S.E.2d 535, 543 (2009). 

Therefore, we hold that the record before us supports the 

circuit court’s discretionary decision transferring venue to 

Roanoke County. 

VI. Jurors 

We next consider Guthrie’s arguments related to the 

circuit court’s seating of certain jurors. At the beginning 

of the voir dire, the circuit court asked the potential jurors 

whether they knew of any reason that they could not give a 

fair and impartial trial to the parties based solely on the 

law and the evidence. All the potential jurors responded, 

“No.” The court also asked whether the veniremen were aware 

20
of any bias or prejudice for or against any of the parties, to 

which they all responded, “No.” 

When questioned by Guthrie’s counsel about whether any 

potential jurors had any involvement with the law firm 

representing VanMarter, Juror Tuckwiller stated that his 

sister worked for that firm. Tuckwiller explained that he 

does not discuss his sister’s work with her and that his 

relationship with her would not make it “difficult” for him to 

“decide this case.” 

Regarding whether any of the potential jurors worked with 

or came into contact with police officers, Juror Harris stated 

that she attends church weekly with two police officers. In 

response to a question by counsel, Juror Harris stated that 

she did not know whether it would “bother” her to serve as a 

juror in case against a police officer, and that “[m]aybe 

[she] shouldn’t [sit on the case].” When questioned further, 

Juror Harris stated that “it might” be a “little difficult” 

for her to serve as a juror and that if a verdict were 

rendered against the police officer it would cause her “some 

concern.” 

Juror Draper stated that she “probably” agreed with Juror 

Harris, but also stated that she did not “like to do anything 

wrong.” Earlier during voir dire, Juror Draper had stated 

that she “[didn’t] think” it would be difficult to be involved 

21
in the case and that she did not have any “bias [sic] opinion” 

about the case despite her familial relationships with police 

officers. 

In response to questions about whether potential jurors 

believed “it may be unfair to blame” VanMarter for the death 

of Hawthorne, Juror Blankenship stated that if VanMarter “was 

doing his job, I would have a problem with finding him 

personally liable.” After Jurors Harris and Hodges stated 

that they agreed with Blankenship’s statement, Juror 

Blankenship stated that her position might change if it were 

proved that VanMarter was negligent in performing his job. 

Juror Harris responded to counsel’s question about 

whether the plaintiff’s burden of proof was fair and stated 

that she “wish[ed] it were more [than 51 percent], but if that 

is the law [sic].” Juror Draper stated that if a person were 

going to be “proven guilty” it “[would have] to be 100 

percent, I would have to feel it in my mind,” but also stated 

that “if that is the law[,] that is the law.” 

Guthrie’s counsel asked whether any of the potential 

jurors believed that they would not bring a lawsuit against a 

police officer even if they felt they had a reason to do so. 

The potential jurors all responded, “No.” 

Guthrie moved to strike Jurors Draper, Harris, 

Blankenship, Tuckwiller and Hodges (the five jurors) for 

22
cause. The circuit court denied the motion. The circuit 

court stated that while counsel had questioned jurors 

regarding whether they would have a “hard time” serving as 

jurors, the court had observed the panel and determined that 

they would be fair and impartial. 

Guthrie requested permission to conduct individual voir 

dire outside the presence of the rest of the jury. The 

circuit court refused this request and also refused to permit 

Guthrie to continue his voir dire. The court noted that the 

voir dire had lasted longer than any felony case over which 

the judge had presided. 

On appeal, Guthrie argues that the “totality” of the 

comments made by the five jurors demonstrated that they were 

not impartial or free of bias and that, therefore, the circuit 

court should have granted Guthrie’s motion to strike them for 

cause. In the alternative, Guthrie contends that the circuit 

court abused its discretion in denying his request to question 

the five jurors outside the presence of the other jurors and 

to continue voir dire in order to clarify whether the five 

jurors should have been disqualified. We disagree with 

Guthrie’s arguments. 

Civil litigants are entitled to a fair and impartial 

trial by jury consisting of people who “stand indifferent in 

the cause.” Code § 8.01-358. A circuit court has wide 

23
latitude in seating jurors because the court has a superior 

ability to hear the responses and observe the body language of 

each member of the venire. Roberts v. CSX Transp., Inc., 279 

Va. 111, 115, 688 S.E.2d 178, 180 (2010); Juniper v. 

Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383, 408 (2006); 

Green v. Commonwealth, 262 Va. 115, 116, 546 S.E.2d 446, 451 

(2001). Therefore, we have stated that a circuit court’s 

ruling on a motion to strike a juror for cause will not be 

disturbed on appeal unless it constitutes manifest error. 

Roberts, 279 Va. at 116, 688 S.E.2d at 181; Juniper, 271 Va. 

at 401, 626 S.E.2d at 408; Barrett v. Commonwealth, 262 Va. 

823, 826, 553 S.E.2d 731, 732 (2001); Green v. Commonwealth, 

262 Va. at 116, 546 S.E.2d at 451; Cantrell v. Crews, 259 Va. 

47, 50, 523 S.E.2d 502, 504 (2000). 

 The circuit court is required to provide each party a 

full and fair opportunity to determine whether prospective 

jurors “stand indifferent in the cause.” LeVasseur v. 

Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983); 

see Roberts, 279 Va. at 116, 688 S.E.2d at 181. However, the 

circuit court retains the discretion to determine whether the 

parties have had sufficient opportunity to question the 

prospective jurors. Juniper, 271 Va. at 396, 626 S.E.2d at 

405; LeVasseur, 225 Va. at 581, 304 S.E.2d at 653. Also, the 

circuit court retains the discretion to determine whether the 

24
parties should be permitted to question prospective jurors 

outside the presence of the others. Tuggle v. Commonwealth, 

228 Va. 493, 505, 323 S.E.2d 539, 546 (1984). Finally, when 

this Court reviews a circuit court’s ruling on the seating of 

a juror, we consider the voir dire of that juror as a whole, 

and do not consider the juror’s isolated statements. Juniper, 

271 Va. at 401, 626 S.E.2d at 408; Jackson v. Commonwealth, 

267 Va. 178, 191, 590 S.E. 2d 520, 527 (2004); Green v. 

Commonwealth, 262 Va. at 116, 546 S.E.2d at 451. 

We hold that when viewed in its entirety, the voir dire 

of each of the five jurors demonstrated that they were able to 

serve impartially in the case. Juror Tuckwiller, whose sister 

worked for the law firm representing VanMarter, expressed 

unequivocally that this relationship would not interfere with 

his ability to serve as an impartial juror. Juror Blankenship 

initially stated that she might have difficulty rendering a 

verdict against a police officer but quickly qualified her 

statement and reconsidered her position. Juror Hodges simply 

stated that she agreed with Juror Blankenship’s initial 

response and did not state that she was unable to serve 

impartially. 

Jurors Harris and Draper, who had familial and personal 

relationships with police officers, provided responses that 

were equivocal and tentative. Juror Harris stated that 

25
“[m]aybe” she should not serve as a juror, that it “might” be 

“a little difficult” to serve as a juror, and that she would 

have “some concern” in rendering a verdict against VanMarter. 

Similarly, Juror Draper stated that she “probably” felt 

similarly to Juror Harris, but earlier had stated clearly that 

she held no biased opinions in favor of police officers. 

With regard to the burden of proof, Jurors Harris and 

Draper indicated that they would follow the law even if they 

disagreed with it. Notably, none of the statements by Jurors 

Harris or Draper indicated that they would be unwilling or 

unable to follow the instructions of the court. 

We hold that the circuit court did not abuse its 

discretion in refusing to permit Guthrie to continue 

questioning the five jurors or to question them outside the 

presence of the other jurors. As we have stated, it is within 

the court’s discretion to determine whether counsel has had 

adequate time to question jurors and whether to permit 

individual voir dire. In this case, the circuit court noted 

that the questioning by counsel was extensive and exhaustive 

and that individual voir dire was not necessary to determine 

that the jurors could serve impartially. From our review of 

the entire voir dire, we conclude that the record supports the 

circuit court’s determination. Therefore, we hold that the 

circuit court did not commit manifest error in refusing to 

26
strike the five jurors for cause. See Roberts, 279 Va. at 

116, 688 S.E.2d at 181; Juniper, 271 Va. at 401, 626 S.E.2d at 

408; Cantrell v. Crews, 259 Va. 47, 50, 523 S.E.2d 502, 504 

(2000); Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 

731, 732 (2001). 

VII. Jury Instructions 

We next consider Guthrie’s contention that the circuit 

court erred in overruling his objections to Instructions 3 and 

11. Instruction 3 stated: “The driver of an emergency vehicle 

may exceed the speed limit provided he is not grossly 

negligent.” Guthrie objected to this instruction on the basis 

that it failed to inform the jury that police officers are 

required to activate the emergency lights of their vehicles 

when driving in excess of the speed limit. 

The circuit ruled that Instruction 3, when read together 

with Instruction 4, accurately reflected the law. Instruction 

4 provided, in part: “The driver of a law enforcement vehicle 

may disregard speed limits, while having due regard for safety 

of persons and property, only when the operator of such 

vehicle displays a flashing emergency light or lights, and 

sounds a siren.” 

Instruction 11 provided: “Immediately before entering a 

highway from a private driveway, the driver of a vehicle has a 

duty to stop and use ordinary care to yield to any vehicle 

27
that is so near the driveway that the driver cannot safely 

enter the highway.” Guthrie objected to this instruction on 

the ground that it did not inform the jury that a driver 

traveling in excess of the speed limit forfeits the right of 

way that he ordinarily enjoys when driving on a main roadway. 

Guthrie also offered proposed Instruction C, which the circuit 

court refused, that addressed circumstances under which a 

driver forfeits his right of way. 

The circuit court overruled Guthrie’s objection to 

Instruction 11, stating that this Instruction, when read in 

conjunction with Instruction 10, gave a “full and fair” 

statement of the law. Instruction 10 stated, in relevant 

part: “Hawthorne had a right to assume that other drivers on 

Chaparral Drive, including [VanMarter], would use ordinary 

care until she realized, or in the exercise of ordinary care 

should have realized, that [VanMarter] was not doing so.” 

On appeal, Guthrie observes that under Code § 46.2-

920(B), drivers of emergency vehicles may exceed the speed 

limit only if their vehicles display emergency lights or sound 

a siren. Guthrie contends that Instruction 3 misstated the 

law and permitted the jurors incorrectly to conclude that 

VanMarter lawfully could have exceeded the speed limit without 

activating his vehicle’s emergency lights and sirens. 

28
Guthrie further argues that based on the evidence at 

trial, the jury could have concluded that VanMarter was 

traveling in excess of the speed limit and, thus, had 

forfeited his right of way under Code § 46.2-823. Guthrie 

asserts that Instruction 11 should have included an 

explanation of such forfeiture of the right of way, and that 

Instruction 10 did not remedy this error because it too was 

silent on that subject. Guthrie argues that, at best, the two 

instructions were inconsistent. We disagree with Guthrie’s 

arguments. 

The purpose of jury instructions is to inform the jury 

fully and fairly about the law applicable to the particular 

facts of a case. Castle v. Lester, 272 Va. 591, 605, 636 

S.E.2d 342, 349 (2006); Honsinger v. Egan, 266 Va. 269, 274, 

585 S.E.2d 597, 600 (2003); H. W. Miller Trucking Co. v. 

Flood, 203 Va. 934, 936, 128 S.E.2d 437, 439 (1962). In 

reviewing the content of jury instructions, this Court’s 

responsibility is to see that the law has been clearly and 

accurately stated, and that the instructions cover all issues 

fairly raised by the evidence. Hancock-Underwood v. Knight, 

277 Va. 127, 131, 670 S.E.2d 720, 722 (2009); Molina v. 

Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006); 

Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 

(1982). 

29
We read the granted jury instructions together and 

consider them as a whole. Supervalu, Inc. v. Johnson, 276 Va. 

356, 366, 666 S.E.2d 335, 341 (2008); Miller Trucking, 203 Va. 

at 937, 128 S.E.2d at 440. The determination whether a jury 

instruction accurately states the relevant law is a question 

of law that we review de novo. Hancock-Underwood, 277 Va. at 

131, 670 S.E.2d at 722. 

In the present case, Instruction 3 correctly informed the 

jury that VanMarter was permitted to disregard the speed limit 

to the extent that he was not grossly negligent in his 

actions. While Instruction 3 did not include the 

qualification that emergency vehicles are required to display 

activated lights and sirens when being operated at speeds in 

excess of the posted speed limit, Instruction 3 did not 

misstate the law. Furthermore, Instruction 4 unequivocally 

addressed Guthrie’s concern that the jury be instructed about 

the conditions under which police officers may disregard speed 

limits, including that they must activate their police 

vehicle’s emergency lights and siren. 

Instruction 11 also provided the jury with a correct 

statement of law and informed the jury that a driver always 

has a duty to use ordinary care. Instruction 10 informed the 

jury that a driver initially may assume that other drivers 

also are acting with ordinary care. The issue of forfeiture 

30
of right of way presented a legal issue distinct from the duty 

of a driver to exercise ordinary care and, thus, the circuit 

court did not err in refusing to add that principle to 

Instruction 11. 

In addition, we note that the circuit court’s decision to 

refuse proposed Instruction C, which addressed the forfeiture 

of right of way, has not been assigned as error in this case. 

Accordingly, we hold that when all the jury instructions are 

read together, the jury properly was instructed on the issues 

addressed in Instructions 3 and 11 and, thus, the circuit 

court did not err in granting those instructions. 

VIII. Conclusion 

For these reasons, we will dismiss the appeal of the 

Hawthorne Estate, and will affirm the circuit court’s judgment 

in favor of VanMarter in Guthrie’s appeal. 

 Record No. 091127 – Dismissed.

Record No. 091156 — Affirmed.

31