COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Frank and Beales Argued at Chesapeake, Virginia

DERRICK MICHAEL EVANS MEMORANDUM OPINION * BY v. Record No. 0078-06-1 CHIEF JUDGE WALTER S. FELTON, JR. JUNE 19, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge Daymen W. X. Robinson, Assistan t Public Defender (Office of the Public Defender, on brief), for appellant. Joshua M. Didlake, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

A jury convicted Derrick Michae l Evans (appellant) of rape and abduction with the intent to defile. On appeal, he contends the trial court erro neously denied his “request of a new trial due to juror impartiality an d bias.” Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND During voir dire , the Commonwealth asked pr ospective jurors, “Have you or any member of your immediate family been a victim or a witness to a violent crime? ” Juror H did not respond, and was subsequently empanelled as a jury member. Shortly after the jury was excused from service, the jury foreperson contacted the deputy sheriff assigned to the jury and repo rted that Juror H had told the other jury members that “she had been in a si milar situation and [tha t] she c[ould] see the fear and the way that the girl felt.” The jury fo reperson advised the deputy sheriff assigned to the jury “[t]hat, after that comment, we buckled dow n and realized the seriou sness here.” The jury

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - foreperson could not remember if Juror H’s comment was made during the guilt phase or the sentencing phase of the trial. The trial court subsequently met with both counsel and in formed them of the jury foreperson’s concerns. After hearin g argument from each counsel, th e trial court determined that a formal evidentiary hearing was needed. The post-t rial evidentiary hearing was conducted four days

later. Prior to the commencement of the hearing, appellant moved to set aside the jury’s verdict on the basis of juror im partiality and misconduct. The trial court then heard testimony from Juror H, during which she admitted disclosing to her fellow jurors that sh e had been the victim of rape “[d]uring one of our break times in th e jury room . . . on the first day . . . ” of the two-day trial. She explained that [a]s a teenager, when I was 15, I was dating a boy a few years older than myself, and we had gone steady for around six months, or so. And we broke up, and he came over to the house wanting “break-up sex,” and I turned him do wn, and he forced the issue. I never told my father, who was at work at the time. I never mentioned it. In fact, when this whole thing started, I wasn’t really thinking about it. But, as it unfolde d, I could recall one time in my life that I submitted to sex when I didn’t want to. Juror H acknowledged that she had heard the Commonwealth ask whether any of the potential jurors had been a victim of a violent crime during voir dire , but stated that she “wasn’t thinking of that situation that had come up in my dating ye ars as a teenager. It’s just that simple.” She further explained that I’m a 52-year-old woman. That was a 15-year-old recollection. You know, I was a 15-year-old, and the closest thing I had ever -- and I did refer to it as rape in th e jury room, that I had experienced something like that, you know. Juror H was unable to recall wh en she first realized that she should have disclosed her experience during the voir dire , but testified that she would have fe lt the need to give an affirmative response if she had remembered the incident at the time the Commonwealth asked the question- 3 - about violent crimes. 1 She also testified that she did not “f eel that [her] teenage experience that [she] shared with the others openly . . . affected [her] judgment as [she] listened to the testimony and deliberated with the other people . . . .”

After consideration of Juror H’ s testimony, the trial court deni ed appellant’s motion to set aside the verdict, ruling that appella nt had not met the requirements of Blevins v. Commonwealth , 267 Va. 291, 590 S. E.2d 365 (2004), aff’g , 40 Va. App. 412, 579 S.E.2d 658 (2003), and that it was

“satisfied that Defendant Derrick Michael Evans was tried and co nvicted by an im partial jury.”

II. ANALYSIS The Sixth Amendment of the Cons titution of the United States an d Article I, Section 8 of the Constitution of Virginia guarantee an accused the right to a trial by an im partial jury. Blevins , 267 Va. at 296, 590 S.E.2d at 368. Due process also requires “a jury capable and willing to decide the case solely on the ev idence before it.” Smith v. Phillips , 455 U.S. 209, 21 7 (1982). These fundamental rights, however, must be balanced with “‘the practical necessities of judicial management.’” Taylor v. Commonwealth , 25 Va. App. 12, 17, 486 S.E.2d 108, 111 (1997) (quoting McDonough Power Equipmen t, Inc. v. Greenwood , 464 U.S. 548, 556 (1984)). The United States Supreme Cour t has long held that a “‘ litigant is entitled to a fair , but not perfect trial, as there are no perfect trials.’” McDonough , 464 U.S. at 553. In ca ses where a juror failed to correctly respond to a voir dire question, “it ill serves the important end of finality to wipe the slate clean simply to recreate the pe remptory challenge process beca use counsel lacked an item of information which objectiv ely he should have obta ined from a juror on voir dire examination.” Id.

1 The record reflects that Juror H affirm atively responded to three questions during voir dire : (1) in response to an inquiry into whether any potential juro r’s family had previously been prosecuted by the Norfolk Commonwealth Attorney ’s Office, she stated she had a cousin who was serving time in jail for a drug violation, but did not know if he had been convicted in Norfolk; (2) in response to an inqui ry into prior jury service, she stated she had served as a juror five years earlier in a civil matter, but that the ca se did not go to trial; a nd (3) she stated that two deceased family members had been in law enforcement.- 4 - at 555. To that end, the McDonough Court “enunciated a two-part test for allegations of juror dishonesty during voir dire ” that was subsequently adopt ed by our Supreme Court in Blevins . 267 Va. at 296, 590 S.E.2d at 368. [I]n order to obtain a new trial in such situations, a litigant must first demonstrate that a juror failed to answer honestly a material question on voir dire , and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartia lity can truly be said to affect the fairness of a trial. Id. at. 296-97, 590 S.E. 2d at 368 (quoting McDonough , 464 U.S. at 556). Appellant contends the trial court erred in concluding that Juror H’s failure to answer a material question during voir dire did not meet the threshold prong of the Blevins test because Juror

H’s failure to disclose her victimization to the tr ial court, once she rememb ered the incident from her childhood, constitutes dishon esty within the meaning of McDonough and Blevins . We disagree. “[T]he honesty of the juror’s re sponse is to be gauged by whet her the juror gave an incorrect answer [to a voir dire question] intentionally or accidentally . Only an intentionally incorrect response may provide a basis for the granting of a mistrial.” Blevins v. Commonwealth , 40 Va. App. 412, 427, 579 S. E.2d 658, 665 (2003), aff’d , 267 Va. 291, 590 S.E. 2d 365 (2004). The record presented to us on appeal supports the trial cour t’s determination that appellant failed to satisfy the threshold requirement of Blevins . Juror H explained at the post-trial evidentiary hearing that she “wasn’t thinking of th[e] situation that had come up in [her] dating y ears as a teenager” at the time the Commonwealth posed its question about victimizatio n, or witnessing violent crimes.

She further testified that had she remembered her prior experience with rape during the voir dire , she would have “felt that [she] woul d need to give an affirmative response[.]” Juror H’s affirmative responses to three of the other voir dire questions posed by the trial court and counsel substantiates her understanding of the importanc e of responding to pertinent voir dire questions. As the record- 5 - clearly demonstrates that Juror H did not inte ntionally give an incorrect response to the voir dire question, the trial court did not er r in determining that appellant had failed to meet the requirements

of Blevins

. 2 Appellant also argues that th e trial court erred in denying his motion to set aside the verdict because Juror H’s comment to the other jurors rega rding her prior experience demonstrated that she was biased in her deliberations. “[ R]egardless of whether a juror’s [ voir dire ] answer is honest, an accused has the right to demonstrate that the juror was actually biased.” Blevins , 267 Va. at 298, 590 S.E.2d at 369 (citing Fitzgerald v. Greene , 150 F.3d 357, 3 63 (4th Cir. 1998)). A general Sixth Amendment challenge to the partiality of a juror, however, must be “based upon additional circumstances occurring outside the voir dire .” Id. Juror H testified at the post-tri al evidentiary hearing that she di d not feel that her experience affected her judgment as she listened to the test imony and deliberated with her fellow jurors. The trial court found her testimony to be credible, ruling that it was satisfied that appellant was tried and convicted by an impartial jury. “Upon appellate review, we must give deference to the trial court’s decision regarding whether a juror is impartial because the trial cour t ‘sees and hears the juror.’”

Blevins , 40 Va. App. at 427, 57 9 S.E.2d at 665 (quoting Eaton v. Commonwealth , 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990)). “Accordingly, we will disturb the trial court’s decision regarding juror impartiality ‘onl y upon a showing of manifest error.’” Id. (quoting Weeks v. Commonwealth , 248 Va. 460, 47 5, 450 S.E.2d 379, 38 9 (1994)). As the record suppor ts the trial court’s finding of Juror H’s impartiality, its denial of appellant’s motion to set asid e the verdict was not manifest error. The judgment of the trial court is therefore affirmed.

Affirmed.

2 Having concluded that a ppellant failed to satisfy the threshold requirement of Blevins , it is not necessary for us to address th e second part of the test -- wh ether Juror H’s correct response would have provided a valid ba sis for a challenge for cause.