COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Norfolk, Virginia 

KERRI CARDINALL CHARITY, S/K/A 

 KERRI CARDANELL CHARITY 

 OPINION BY 

v. Record No. 2099-94-1 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 4, 1997 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 David P. Baugh for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Appellant, Kerri Cardanell Charity, was indicted for 

burglary and credit card theft. The trial court denied his 

motion to suppress identification evidence from a lineup in which 

he participated. Following a jury trial, appellant was convicted 

of burglary and sentenced to five years imprisonment; appellant 

was found not guilty of credit card theft. Appellant contends 

the trial court erred in admitting identification evidence and by 

conducting voir dire itself, refusing to allow appellant's 

counsel to ask questions as provided by Code § 8.01-358. Finding 

no reversible error, a panel of this Court affirmed appellant's 

conviction. The panel granted appellant's motion for rehearing 

to reconsider whether the trial judge's error in its conduct of 

voir dire was harmless. We find no reversible error and affirm. 
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I. The Identifications 

 An out-of-court identification is admissible if either (1) 

the identification was not unduly suggestive; or (2) the 

procedure was unduly suggestive, but the identification was so 

reliable that there is no substantial likelihood of 

misidentification. E.g., Hill v. Commonwealth, 2 Va. App. 683, 

693, 347 S.E.2d 913, 918 (1986). Moreover, even if the 

out-of-court identification is inadmissible, an in-court 

identification may still be made if "the origin of that 

identification is independent of the inadmissible out-of-court 

identification procedure." Id.

 A valid lineup does not require "that all the suspects or 

participants be alike in appearance and have the same 

description, as long as there is nothing to single out the 

accused from the rest." Williamson v. Commonwealth, 211 Va. 57, 

59, 175 S.E.2d 285, 287 (1970). The evidence supports the trial 

court's finding that the videotaped lineup, in which appellant 

participated, was not unduly suggestive. Based on descriptions 

given by the victims in the several cases under investigation, 

the six men participating in the lineup were selected for their 

height, facial features, complexion, age, hands, voice, and the 

absence of facial hair. They wore identical clothing in the 

lineup. Height was the only feature which significantly differed 

from one man to the next. However, the men selected for the 

lineup were of differing heights because of the varying 
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descriptions given by the several victims, including the victim 

in this case, Ashleigh Clukey. The fact that shorter men were 

intermixed with two who were closer to appellant's height is of 

little import here because Ms. Clukey encountered the intruder as 

he was walking up the stairs of her home, and his height appeared 

to change with his ascent. 

 The evidence also shows that the conduct of the police was 

not unduly suggestive. The police did not pressure Ms. Clukey to 

identify appellant. They told her she needed to see the video 

lineup, but they did not tell her it would include the 

perpetrator. They told her to take her time and not to worry if 

she could not identify the intruder. The police showed her 

appellant's picture only after she identified him from the video 

lineup. 

 Moreover, even if the lineup had been unduly suggestive, the 

trial court properly found that Ms. Clukey's identification of 

appellant was not so unreliable as to create a substantial 

likelihood of misidentification. The factors to consider in 

determining reliability are: (1) the witness' opportunity to view 

the criminal at the time of the crime; (2) the witness' degree of 

attention; (3) the accuracy of the witness' prior description of 

the criminal; (4) the level of certainty demonstrated by the 

witness at the confrontation; and (5) the length of time between 

the crime and the confrontation. E.g., Hill, 2 Va. App. at 692, 

347 S.E.2d at 918 (citing Neil v. Biggers, 409 U.S. 188, 199-200 
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(1972)). 

 Applying these factors to determine the reliability of Ms. 

Clukey's identification, we cannot conclude the trial court 

abused its discretion in admitting the evidence. See Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) ("The 

admissibility of evidence is within the broad discretion of the 

trial court, and a ruling will not be disturbed on appeal in the 

absence of an abuse of discretion."). Ms. Clukey observed the 

intruder for seventeen seconds and came within ten feet of him as 

he walked up the stairs toward her. She could see his face 

clearly and ascertain his facial features because the outside 

porch light was on at the bottom of the steps and the bathroom 

light was on at the top of the stairway. 

 Ms. Clukey's identification of the intruder at trial was the 

same as the identification she gave to the police at the time of 

the crime, except she first reported the intruder wore a hat. 

This discrepancy is of insufficient import to require suppression 

of the identification. Ms. Clukey's ability to distinguish one 

suspect from another was clearly established. She correctly 

found that appellant was not among those in the photo lineup 

presented to her shortly after the incident. At both the trial 

and the lineup, Ms. Clukey positively identified appellant as the 

intruder. She identified him both wearing and not wearing a 

baseball cap. Approximately seven months elapsed between the 

crime and the lineup and another five elapsed before trial. 
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Under the facts of this case, neither period represents an 

interval of such length that Ms. Clukey's identification 

testimony can be deemed unreliable as a matter of law. 

 Appellant also argues that Ms. Clukey's in-court 

identification should not have been admitted because it was 

tainted by the conduct of the police, who showed her a photo of 

appellant, bald-headed, after she identified him in the lineup 

video and after she indicated she could not recall whether he was 

wearing a cap. This Court has applied the same two-part test set 

forth above to determine whether to suppress an in-court 

identification. E.g., Doan v. Commonwealth, 15 Va. App. 87, 

95-96, 422 S.E.2d 398, 402-03 (1992). Thus, the showing of the 

photo must have been so unduly suggestive as to render Ms. 

Clukey's in-court identification so unreliable as to raise a 

substantial likelihood that she misidentified appellant. 

 To support his position, appellant argues that Ms. Clukey's 

in-court identification was unreliable because: (1) she did not 

describe the intruder as bald until seeing the photo showing 

appellant without hair; (2) she testified at trial that the 

intruder had little hair, at least none sticking out from his 

hood; and (3) because, after seeing the photo of appellant 

without a hat, she was unable to recall the hat she said the 

intruder wore. We disagree with appellant's contentions. 

 The trial court did not abuse its discretion by admitting 

Ms. Clukey's in-court identification. Ms. Clukey's inability to 
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recall whether the intruder wore a cap is the only significant 

inconsistency which exists between her early identification and 

her in-court testimony. Ms. Clukey identified appellant both at 

the lineup, when he was wearing a cap, and in the photo, when he 

was bald-headed. Moreover, her report to the police that the 

intruder wore a hood and a cap is not significantly inconsistent 

with her testimony at trial that the intruder had little hair, at 

least none visible to her. 

 II. The Voir Dire

 The parties do not dispute that the trial court's failure to 

allow appellant's counsel to ask voir dire questions of the 

prospective jurors was a clear deviation from the mandate of Code 

§ 8.01-358.1 That such a deviation is an abuse of discretion is 

 

 1Code § 8.01-358 provides: 

 The court and counsel for either party 

shall have the right to examine under oath 

any person who is called as a juror therein 

and shall have the right to ask such person 

or juror directly any relevant question to 

ascertain whether he is related to either 

party, or has any interest in the cause, or 

has expressed or formed any opinion, or is 

sensible of any bias or prejudice therein; 

and the party objecting to any juror may 

introduce any competent evidence in support 
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beyond cavil. It remains only to determine whether that error 

was harmless. 

 Upon rehearing, appellant contends that the Commonwealth 

bears the burden of proving harmless error and that, in our 

initial opinion, we applied the wrong standard in determining 

whether the error was harmless. We disagree. We did not deviate 

from the well established principles governing appellate review 

of trial court errors. Nonetheless, in the interest of clarity, 

upon rehearing, we can further explain our ruling. 

 Counsel conducted voir dire is a statutory, not a 

constitutional, right. See Tuggle v. Commonwealth, 228 Va. 493, 

504, 323 S.E.2d 539, 546 (1984), vacated on other grounds, 471 

U.S. 1096 (1985); Turner v. Commonwealth, 221 Va. 513, 521, 273 

S.E.2d 36, 41 (1980), rev'd on other grounds, 476 U.S. 28 

(1986).2 Thus, we are required to address the trial court's 

error in this case by applying the legal standard for determining 

(..continued) 

of the objection; and if it shall appear to 

the court that the juror does not stand 

indifferent in the cause, another shall be 

drawn or called and placed in his stead for 

the trial of that case. . . . 

 2Moreover, appellant did not raise a constitutional claim 

below and is, therefore, barred from raising such a claim on 

appeal. Rule 5A:18; Jacques v Commonwealth, 12 Va. App. 591, 

593, 405 S.E.2d 630, 631 (1991); Swann v. Commonwealth, 247 Va. 

222, 229, 441 S.E.2d 195, 201, cert. denied, 115 S. Ct. 234 

(1994). 
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when non-constitutional error is harmless. 

 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 Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc); Walker v. 

Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926). To 

determine whether an error is harmless, this Court "must review 

the record and the evidence and evaluate the effect the error may 

have had on how the finder of fact resolved the contested 

issues." Lavinder, 12 Va. App. at 1007, 407 S.E.2d at 912. "An 

error does not affect a verdict if a reviewing court can 

conclude, without usurping the jury's fact finding function, 

that, had the error not occurred, the verdict would have been the 

same." Id. at 1005, 407 S.E.2d at 911. Allocating the risk of 

non-persuasion, e.g., the burden of proof, is not necessary to 

our analysis in this case. Such a consideration becomes relevant 

only where the appellate court finds the matter "so evenly 

balanced that [it] feels . . . in virtual equipoise as to the 

harmlessness of the error." O'Neal v. McAninch, __ U.S. __, __, 

115 S. Ct. 992, 994 (1995). We find no such circumstances here. 

 We conclude that the verdict in this case would have been 

the same notwithstanding the trial court's error, because we find 

the record plainly shows that appellant received a fair trial and 

that substantial justice was reached. See Lavinder, 12 Va. App. 
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at 1005, 407 S.E.2d at 911. The record affirmatively establishes 

that appellant was tried by an impartial jury. It is undisputed 

that each person on the panel of twenty from which the ultimate 

jury was selected was free from exception. 

 Although the court refused to allow appellant's counsel to 

ask the prospective jurors questions directly, it gave 

appellant's counsel the opportunity to submit voir dire questions 

for the court to ask. Counsel stated that he had not formulated 

specific questions but asserted that his questions would address 

whether a prospective juror had any "disagreement [with] or bias 

against" the law governing the burden of proof, the presumption 

of innocence or the possession of stolen property, and whether a 

prospective juror would credit the testimony of police officers 

over that of other witnesses or was predisposed to believe 

eyewitness testimony. The court offered appellant's counsel a 

recess to write specific questions to submit to the court. In 

conducting voir dire, the court questioned prospective jurors on 

each of the matters appellant's counsel raised. Counsel did not 

proffer any questions that were not asked, and he did not submit 

any follow-up questions to those the court did ask. 

 Clearly, the court failed to follow the mandate of Code 

§ 8.01-358.3

 However, it plainly appears from the record that 

 

 3Appellant characterizes the trial court's error in this 

case as, inter alia, "intentional," "blatant," "arbitrary," and 

even "bizarre." Admittedly, the error in this case is troubling, 

not simply because it denied appellant's statutory right to 

counsel-conducted voir dire, but also because it may have been 

committed in deliberate disregard of a known statutory directive. 
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this error did not affect the questions propounded to the 

prospective jurors, the selection or composition of the jury 

panel or its partiality. Thus, we conclude that the record 

plainly shows that the erroneous, non-constitutional ruling did 

not deprive appellant of a fair trial or substantial justice and, 

therefore, that it plainly did not affect the verdict. 

 Accordingly, appellant's conviction is affirmed. 

Affirmed.

(..continued) 

See Canons 2(A), 3(A)(1), Canons of Judicial Conduct for the 

State of Virginia. Our review, however, is limited to addressing 

the effect of the error on the case at bar, not the trial judge's 

reasoning, state of mind or knowledge when making the error. 
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Bray, J., concurring. 

 While I concur in the result expressed in the majority 

opinion, I take exception to the inclusion of n.3. 

Notwithstanding the hyperbole of appellant's able counsel, I find 

nothing in the record which either requires or justifies 

reference in the opinion to the Canons of Judicial Conduct. 

 Similarly, I am constrained to also except to the 

dissenter's conclusion that the "Virginia Beach practice" of 

conducting voir dire "appears from the record." The procedure on 

voir dire which pertained in the subject trial is the only issue 

on appeal, not the judicial customs of the city. Moreover, in 

the colloquy between appellant's counsel and the court, the court 

repeatedly referenced itself in the first person, clearly not 

implicating the entire Second Judicial Circuit of Virginia. 
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Elder, J., dissenting. 

 I respectfully dissent from Part II of the majority opinion 

and would hold that the trial court committed reversible error in 

refusing to allow counsel-conducted voir dire. 

 In 1981, the General Assembly amended Code § 8.01-358 to 

specifically grant attorneys the right to voir dire the venire. 

The Legislature's action was in response to the Supreme Court of 

Virginia's decision in Turner v. Commonwealth, 221 Va. 513, 521, 

273 S.E.2d 36, 41 (1980), cert. denied, 451 U.S. 1011 (1981), 

where the Court held that a defendant "has no constitutional 

right to counsel-conducted voir dire." While the amendment did 

not create a constitutional right, as the majority recognizes, it 

did create a statutory right which the trial court admittedly 

denied. 

 It appears from the record that the Virginia Beach practice 

involves "the court doing voir dire" of potential jurors.4 The 

statutory right to counsel-conducted voir dire was called to the 

trial court's attention on several occasions. The trial judge 

responded that he would not allow counsel to ask the questions 

and stated, "That's what I've always done, and that's what I'm 

going to do." The majority acknowledges "[t]hat such a deviation 

is an abuse of discretion is beyond cavil." To affirm this case 

under these circumstances is to send a signal that the judges of 

 

 4See exchange between the trial judge and trial counsel from 

the trial transcript as reflected in Appendix I attached hereto. 
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an entire judicial circuit may ignore the mandate of a statute 

with impunity and without concern for reversal upon appellate 

review. 

 As the Supreme Court stated in Turner, "[i]n the absence of 

a statute or court rule to the contrary, as long as the selection 

procedure results in a fair and impartial jury, the manner in 

which a jury is to be selected is properly within the trial 

court's sound discretion." Id. at 522, 273 S.E.2d at 41 

(emphasis added). The amendment to Code § 8.01-358 removed the 

trial court's discretion to conduct jury selection without 

affording counsel the right to participate in voir dire. In this 

case, the trial court knowingly and purposefully refused to 

follow the Legislature's mandate and therefore committed 

reversible error. See People v. McClellan, 331 N.E.2d 292, 298 

(Ill. App. Ct. 1975) (stating that where a statute or rule 

provides for counsel-conducted voir dire, "no trial judge should 

totally prohibit direct questioning of prospective jurors by the 

parties or their attorneys"), cert. denied, 425 U.S. 950 (1976); 

47 Am. Jur. 2d Jury § 200, at 881 (1995) ("Where, under a local 

court rule, it is the duty of all trial judges to . . . allow the 

parties or their attorneys a reasonable opportunity to supplement 

[voir dire] examination, no trial judge should totally prohibit 

direct questioning of prospective jurors by the parties or their 

attorneys."). 

 I agree that under normal circumstances, non-constitutional 
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error is harmless if it plainly appears from the record that the 

error did not affect the verdict. Lavinder v. Commonwealth, 12 

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). This 

case, however, defies harmless error analysis. The record in a 

case such as this could never demonstrate juror bias or prejudice 

affecting the trial's outcome. Appellant's counsel was given the 

opportunity to submit questions to the trial court, and all 

questions proffered by counsel were asked. Additionally, 

appellant's counsel failed to propose follow-up questions to be 

asked by the trial court. However, none of these facts proves a 

lack of harm or prejudice to appellant. At the heart of an 

attorney's right to voir dire the venire is the attorney's 

well-founded desire to engage in one-on-one interaction with a 

potential juror, and thereby to personally analyze all of the 

attendant variables inherent in such an interaction.5 These 

 

 5For example, the National Jury Project, in its treatise 

Jurywork: Systematic Techniques, stated: 

 A judge's role as authority figure in the 

courtroom exacerbates the [courtroom's 

intimidating atmosphere], because many 

prospective jurors are afraid to say anything 

that might displease the judge. 

 The task of the lawyer conducting the 

voir dire is to create an atmosphere that 

encourages honest and straightforward answers 

that reveal the prospective juror's 

personality, experiences, and attitudes. 

This can be done by establishing a 

relationship with prospective jurors that 

conveys an attitude of respect and 

recognition of them as individuals. . . . 

 The attorney's tone of voice and 

demeanor is an important determinant of the 

kind of relationship she or he will have with 
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unquantifiable and indeterminate variables will rarely, if ever, 

be revealed in the record, and I see no way that counsel can make 

such variables known to the trial court in the form of an 

objection or proffer. 

 "[T]he Legislature implicitly recognized the advantage to 

counsel conducted voir dire." Lankford v. Foster, 546 F. Supp. 

241, 247 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th. Cir. 1983), 

cert. denied, 467 U.S. 1214 (1984). "The influence of the voir

dire process may persist through the whole course of the trial 

proceedings." Ford v. Norris, 67 F.3d 162, 171 (8th Cir. 1995). 

 In this case, because the trial court knowingly and purposefully 

ignored the mandate of Code § 8.01-358, it abused its discretion 

and committed reversible error. I would therefore reverse the 

conviction and remand for further proceedings if the Commonwealth 

be so advised. 

(..continued) 

prospective jurors. 

National Jury Project, Jurywork: Systematic Techniques Vol. 2, 

at 17-13, 17-14 (Elissa Krauss & Beth Bonora eds. 1995). 
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APPENDIX I

 THE COURT: All right. Are we ready to proceed in the 

Charity matter? 

 MR. BAUGH: Your Honor, there's one matter. It's been about 

three years since I tried a case in the Beach, and I was reminded 

this morning by Mrs. Pritchard the local practice involves the 

court doing voir dire. Of course, the statute permits the 

defendant through his counsel to conduct his own voir dire. We 

would expect our right to conduct our own voir dire in the 

presence of the jury. 

 THE COURT: Well, what I normally do and what I will do in 

this case is allow counsel any relevant or pertinent questions it 

may -- 

 MR. BAUGH: I can tell the court so we don't do it in the 

presence of the jury, the majority of my -- all my voir dire 

questions will revolve around whether or not jurors have any 

disagreement or bias against -- concerning burden of proof, 

presumption of innocence, testimony of police officers over 

nonpolice officers, automatically be predisposed to believe the 

testimony of an eyewitness, whether or not they disagree with the 

law of possession. 

 MRS. PRITCHARD: Your Honor, number one, I'd like to go 

through the -- I have my questions. I've provided copies to Mr. 

Baugh. 

 THE COURT: I'll need copies of some -- they don't have to 

be typed necessarily, Mr. Baugh. You can write them out in 

longhand. I'll need to go through the questions and see. 

 MR. BAUGH: Your Honor, I have not prepared the exact 

questions. I have the topics. I do not know what the exact 

questions will be until I ask them under the statute. 

 MRS. PRITCHARD: Your Honor -- 

 THE COURT: I'm going to ask the questions. That's what 

I've always done, and that's what I'm going to do; but I will ask 

whatever questions you desire to have asked. 

 MR. BAUGH: Then, Your Honor -- then please note our 

exception. The statute -- I would ask the court for any 

authority which permits -- which denies the defendant his right 

to do voir dire. 

 THE COURT: I will note your objection and exception to the 
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court's ruling for the record and will note that, of course, the 

court will ask any question that you desire to have asked that is 

relevant to jury selection. 

 MRS. PRITCHARD: Your Honor -- 

 MR. BAUGH: Excuse me. Are you telling me that you are not 

going to follow the statute? 

 THE COURT: I'm telling you that I'm going to ask the 

questions. 

 MR. BAUGH: No, you're not. The statute says specifically 

the defendant may ask his questions; and I'm asking the court are 

you telling me categorically you are not going to follow the 

statute? 

 THE COURT: I am telling you that I will ask any question 

that you wish to have asked if the questions are written out and 

presented to the court. 

 MR. BAUGH: Then, Your Honor, we're going to need a recess 

while we prepare for this extraordinary departure from Virginia 

law. 

 THE COURT: All right, sir. I'll take a recess and give you 

time to jot down your questions. 

 MR. BAUGH: Thank you. Your Honor, if I could ask you, are 

there any other laws that Virginia Beach follows that the 

Commonwealth of Virginia has never heard of?