COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, 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, Assistant Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Joshua M. Didlake, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 A jury convicted Derrick Michael Evans (appellant) of rape and abduction with the intent to 

defile. On appeal, he contends the trial court erroneously denied his “request of a new trial due to 

juror impartiality and bias.” Finding no error, we affirm the judgment of the trial court. 

I. BACKGROUND 

 During voir dire, the Commonwealth asked prospective 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 reported that Juror H had 

told the other jury members that “she had been in a similar situation and [that] she c[ould] see the 

fear and the way that the girl felt.” The jury foreperson advised the deputy sheriff assigned to the 

jury “[t]hat, after that comment, we buckled down and realized the seriousness here.” The jury 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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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 informed them of the jury 

foreperson’s concerns. After hearing argument from each counsel, the trial court determined that a 

formal evidentiary hearing was needed. The post-trial 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 impartiality and misconduct. The trial court then heard testimony from Juror H, 

during which she admitted disclosing to her fellow jurors that she had been the victim of rape 

“[d]uring one of our break times in the 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 down, 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 unfolded, 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 years 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 the jury room, that I had experienced 

something like that, you know. 

 Juror H was unable to recall when she first realized that she should have disclosed her 

experience during the voir dire, but testified that she would have felt the need to give an affirmative 

response if she had remembered the incident at the time the Commonwealth asked the question 
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about violent crimes.1 She also testified that she did not “feel 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 denied appellant’s motion to set 

aside the verdict, ruling that appellant 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 convicted by an impartial jury.” 

II. ANALYSIS 

 The Sixth Amendment of the Constitution of the United States and Article I, Section 8 of the 

Constitution of Virginia guarantee an accused the right to a trial by an impartial 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 evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (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 Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984)). The 

United States Supreme Court 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 cases 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 peremptory challenge process because counsel lacked an item of 

information which objectively he should have obtained from a juror on voir dire examination.” Id.

 1

 The record reflects that Juror H affirmatively responded to three questions during voir 

dire: (1) in response to an inquiry into whether any potential juror’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 inquiry into prior jury service, she stated she had served as a juror 

five years earlier in a civil matter, but that the case did not go to trial; and (3) she stated that two 

deceased family members had been in law enforcement. 
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at 555. To that end, the McDonough Court “enunciated a two-part test for allegations of juror 

dishonesty during voir dire” that was subsequently adopted 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 impartiality 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 trial court, once she remembered the incident from 

her childhood, constitutes dishonesty within the meaning of McDonough and Blevins. We disagree. 

 “[T]he honesty of the juror’s response is to be gauged by whether 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 court’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 years as a teenager” at 

the time the Commonwealth posed its question about victimization, 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] would 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 importance of responding to pertinent voir dire questions. As the record 
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clearly demonstrates that Juror H did not intentionally give an incorrect response to the voir dire

question, the trial court did not err in determining that appellant had failed to meet the requirements 

of Blevins.

2

 Appellant also argues that the trial court erred in denying his motion to set aside the verdict 

because Juror H’s comment to the other jurors regarding 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, 363 (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-trial evidentiary hearing that she did not feel that her experience 

affected her judgment as she listened to the testimony 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 court ‘sees and hears the juror.’” 

Blevins, 40 Va. App. at 427, 579 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 ‘only upon a showing of manifest error.’” Id. (quoting Weeks v. Commonwealth, 

248 Va. 460, 475, 450 S.E.2d 379, 389 (1994)). As the record supports the trial court’s finding of 

Juror H’s impartiality, its denial of appellant’s motion to set aside the verdict was not manifest error. 

 The judgment of the trial court is therefore affirmed. 

 Affirmed.

 2

 Having concluded that appellant failed to satisfy the threshold requirement of Blevins, it is 

not necessary for us to address the second part of the test -- whether Juror H’s correct response 

would have provided a valid basis for a challenge for cause.