COURT OF APPEALS OF VIRGINIA

Present: Judge s Huff

, Russell and Malveaux Argued by video conference

TYRON RESHAWN CLANTON MEMORANDUM OPINION * BY

v. Record No. 1809

- 19

- 2 JUDGE MARY BENNETT MALVEAUX MAY 4, 2021 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG

Dennis M. Martin, Sr. , Judge
Mary K. Martin ( Mary K. Martin , Attorney at Law, PLLC , on brief)
, for appellant.
Lauren C. Campbell
, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Tyron Reshawn Clanton (“appellant”) was convicted of two counts of first

- degree murder
, in violation of Code § 18.2

- 32, two counts of use of a firearm in the commission of first

- degree

murder
, in violation of Code § 18.2

- 53.1, and one count of conspiracy to commit first

- degree

murder
, in violation of Code §§ 18.2

- 22 and

- 32. On appeal, he a rgues that the trial court erred in
failing to strike J urors 15 and 23 for cause. Because we find that the trial court erred in failing to

strike Juror 23 for cause, we reverse appellant ’ s conviction s and remand for a new trial

. 1

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.

1 In light of our resolution of the appeal on this ground , we need not address appellant’s argument regarding Juror 15. See Riddick v. Commonwealth , 72 Va. App. 132, 146 n.7 (2 020) (“[J]udicial restraint dictates that [appellate courts] decide cases on the best and narrowest grounds available.” (quoting Commonwealth v. White , 293 Va. 411, 419 (2017))). UNPUBLISHED- 2

- I. BACKGROUND

On Ju ne 13, 2019, the trial court conducted jury selection for appellant’s trial. The trial
court asked several preliminary questions of the venire. The Commonwealth’s attorney then
questioned the venire, collectively and individually. She asked if anyone wa s , or had a close

friend who was
, a member of law enforcement. Juror 23 responded that her deceased sister had
worked for the police department. When the Commonwealth’s attorney introduced the

Commonwealth’s witnesses in the case, Juror 23 stated that sh e knew several of the police
officers that were going to testify because of her sister’s former employment with the police
department. T he trial court then asked the following questions:

THE COURT: Well, would that prevent you from being fair to either the Commonwealth or the defendant? The officers are witnesses to the

-- they’re going to testify about what they saw or what they did. That’s what their role is.

[ JUROR 23 ] : I mean, I g uess not. No.
THE COURT: No. The fact that your

-- you said your sister was a police officer?

[ JUROR 23 ] : She worked for the police department.
THE COURT: Worked for the police officer ( sic ). Would that prevent you from being fair to either the Commonwealth or the defendant? I mean, when there’s a crime, the police investigate it.

[ JUROR 23 ] : I know.
THE COURT: So they’re involved.

[ JUROR 23 ] : I’m

-- I’m, you know, kind of, I guess

-- like, I guess I would say loyal to the police becau se of my sister’s work that she did, I guess. But I hope that wouldn’t keep me from being impartial with the evidence that we have. I’m biased

-- THE COURT: Okay.

[ JUROR 23 ] :

-- you know, on the police side, I guess you would say.- 3

-

The Commonwealth ’s attorney then named more witnesses that she would call to testify,

and Juror 23 again stated that she knew several of them because her sister had been “close
friends” with a couple of the detectives named as witnesses . The Commonwealth’s attorney

asked a further question of Juror 23 :

COMMONWEALTH’S ATTORNEY: Based on your sister’s closeness, do you feel you could be fair and impartial to both sides, after you hear all the evidence today?
JUROR 23: I’ll try to be. Like I said, I’m loyal to the police chief. Worked for years and knew them and I’m loyal to the police. I don’t know what else to say, but I would try to be.
The Commonwealth’s attorney then moved to strike Juror 23 for cause based on the
juror’s “ testimony [] which has been consiste nt through every time there’s a police officer that
comes forward.” Counsel for appellant joined in that motion. The c ourt further questioned Juror

23 as follows:
THE COURT: Okay. So your position

-- so after you hear all the

evidence in this court an d you hear the law that I instruct you on, can you put aside any feelings that you have about the loyalty or credibility of police officers and follow the law that I instruct you on, based upon the evidence that you hear in this courtroom?

JUROR 23: I wi ll try.
THE COURT: You will try. So you’re saying you’re

-- okay. Have a seat. Motion for [c] ause is denied. Sit down. She said she will try, she didn’t say no.
Counsel for appellant then questioned Juror 23 as follows:

[ DEFENSE COUNSEL ] : So so rry, Madam 23
, to keep asking you questions, but you told the [j]udge that you would try and I guess I’m just trying to interpret that you can’t

-- you can’t assure us that you can go into the room and

--
[ JUROR 23 ] : I have a lot of emotion toward those police officers. They were very kind to my sister. My sister passed away three months ago. I’m still dealing with that. My mill of emotion when I see those officers is very high and I’m being honest.- 4

- [ DEFENSE COUNSEL ] : Yes, ma’am. I understand. So you’re telling us then for that reason you just cannot guarantee the [c]ourt that you can follow the instructions of the [c]ourt, put aside any of your special feelings that you might have, you’re not going to be able to do that?

[ JUROR 23 ] : I don’t want to do a disservice to anybody.

[ DEFENSE COUNSEL ] : So that you’re concerned about doing a disservice?

[ JUROR 23 ] : Yes.

[ DEFENSE COUNSEL ] : All right. Thank you, ma’am. I really appreciate your answers.
Following this exchange, counsel for appellant renewed the motion to strike Juror 23,

which the court denied. Appellant used a peremptory strike to remove Juror 23. The jury found

app ellant guilty of two counts of first

- degree murder, two counts of use of a firearm in the

commission of first

- degree murder, and one count of conspiracy to commit first

- degree murder

. This appeal followed

.
II. ANALYSI S
Both the Virginia and United Stat es Constitutions protect a defendant ’ s right to be tried
by an impartial jury. Va. Const. art. I, § 8; U.S. Const. amend. VI ; see also Code § 8.01

- 358

( provid ing that members of the venire must “stand indifferent in the cause” ). “ [A] prospective
juror ‘m ust be able to give [the accused] a fair and impartial trial. Upon this point nothing

should be left to inference or doubt.’” Bradbury v. Commonwealth , 40 Va. App. 176, 180

(2003) (second alteration in original) (quoting Wright v. Commonwealth , 73 Va. (3 2 Gratt.) 941,

943 (1879)). “[T]he test of impartiality is whether the venireperson can lay aside the
preconceived views and render a verdict based solely on the law and evidence presented at trial.”

Griffin v. Commonwealth , 19 Va. App. 619, 621 (1995)

. “[T]he Constitution does not require
specific procedures or tests for determining the impartiality of a jury.” Morva v.- 5

-

Commonwealth , 278 Va. 329, 341 (2009). However, “[b]y ancient rule, any reasonable doubt as
to a juror ’ s qualifications must be resolved in favor of the accused.” 2 Breeden v.

Commonwealth , 217 Va. 297, 298 (1976).
“Juror impartiality is a question of fact.” Huguely v. Commonwealth , 63 Va. App. 92,
121 (2014) (quoting Lovos

- Rivas v. Commonwealth , 58 Va. App. 55, 61 (2011)). “Whe ther a
venireman can lay aside a preconceived opinion and render a verdict solely on the evidence is a
mixed question of law and fact. Resolution of the question rests within the sound discretion of

the trial court.” Calhoun v. Commonwealth , 226 Va. 256, 258 (1983). W e review “[j]urors ’
responses during the entire voir dire

. . . to determine their impartiality to the case.” Bradbury
,
40 Va. App. at 180

. Appellant argues that the trial court erred in failing to strike Juror 23 for cause because

her an swers given during voir dire demonstrated her bias in favor of police. 3 It is true that in
Virginia “ [a] person is not automatically excluded from a jury because of an association with law
enforcement personnel, provided he demonstrates that he can be im partial.” Gray v.

2 Though Juror 23 was ultimately removed via a peremptory strike, “ [i]n Virgi nia, a defendant in a criminal case ‘is entitled to a panel of jurors free from exception before exercising peremptory challenges.’” DeLeon v. Commonwealth , 38 Va. App. 409, 412 (2002) (quoting Cressell v. Commonwealth , 32 Va. App. 744, 755 (2000))

.

3 Th e Commonwealth argues that appellant failed to preserve this argument for appeal because while appellant made a motion to strike the prospective juror , he never stated with any specificity why the juror should be struck for cause. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.” Under the rule, “a specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal.” Edwards v. Commonwealth , 41 Va. App. 752, 760 (2003) ( en banc ). We reject the Commonwealth’s argument because it is readily apparent from the line of questioning during voir dire by the Commonwealth, along with its motion to strike, which appellant joined, t hat the trial court understood that the basis for the motion to strike was Juror 23’s responses indicating that she had a potential bias in favor of police.- 6

-

Commonwealth , 233 Va. 313, 338 (1987)

. However, Juror 23 ’s voir dire , viewed in its entirety,
did not demonstrate that she could be impartial in this case.
During voir dire , Juror 23 ’s own words, not just her mere assent to questioning, reveal ed
her bias toward police. The prospective juror directly stated, when asked about her impartiality,
that she was “loyal to the police because of my sister’s work that she did” and was “biased

. . . you know, on the p olice side, I guess you would say.” She also responded that she did not “want
to do a disservice to anybody” after being asked if she could follow the instructions of the court
and put aside any “special feelings” she might have had. It is beyond evident here that Juror 23’s
honest answers provided doubt as to her ability to remain impartial to both sides

— the
prospective juror herself stated that she was “loyal to” and “biased” in favor of police, and did
not want to do a “disservice” by serving on the ju ry.
Further, beyond these direct statements, Juror 23’s other responses to questions regarding
her impartiality failed to establish that she could be impartial while serving on the jury. When
asked by the trial court if her relationship with police witn esses, whom she knew because her
sister had worked for the police department, would prevent her from being fair to the
Commonwealth or appellant, Juror 23 responded , “I mean, I guess not. No .” W hen the trial

court asked again if she could be impartial to both sides considering her sister’s prior work
, the
prospective juror stated she “hope [ d ] that wouldn’t keep [her] from being impartial. ” Following

this exchange, w hen asked by the Commonwealth’s attorney if she could remain impartial
despite her decease d sister’s close relationships with police detectives who were witnesses for

the Commonwealth, Juror 23 twice stated that she would “try to be

. ” After the Commonwealth
moved to strike Juror 23 for cause, the trial court attempted to rehabilitate the prosp ective juror
by asking , “can you put aside any feelings that you have about the loyalty or credibility of police- 7

-

officers and follow the law that I instruct you on, based upon the evidence that you hear in this

courtroom?” Juror 23 again responded, “I will try.”
Here, only once did Juror 23 state that her deceased sister’s relationship with the police
department would not prevent her from being fair to either side, and even that answer was
partially equivocal, as she answered, “I mean, I guess not. No.” After this initial response, Juror

23 stated three times that she w ould “try” and “hope ” to be fair and impartial

. All of Juror 23 ’s
responses to the question of whether she could be impartial were equivoca l in nature, and thus

reveale d doubt as to whether she would be able to render a fair verdict. 4 See Brown v.

Commonwealth , 29 Va. App. 199 , 2 0 8 (1999) ( denying motion to strike juror i n a rape case was

error when “[n] early all ” of the pr ospective juror’s responses regarding bias and her past
experience as a crime victim contained the phrases “I think,” “I don ’ t know,” and “I would try” ).
In the instant case, Juror 23 expressed numerous reservations about her ability to serve
impartially on the jury in light of her experience and relationships with police. Her direct
statements regarding her loyalty and bias in favor of police , along with her equivocal answers
that she would “try” and “hope” to be impartial
, created a reasonable doubt as to Juror 23’s
qualification to serve as a f air and impartial juror. Therefore, w e conclude that the trial court
abused its discretion in refusing to strike her for cause. 5

4 We acknowledge that “we defer to the trial court to resolve any potentially equivocal statements because of its opportunity to observe the juror’s tone and demeanor.” Keepers v. Commonwealth , 72 Va. Ap p. 17, 45 (2020). However, here the trial court did not indicate that it found Juror 23’s responses unequivocal. Rather
, in denying the motion to strike, the trial court stated, “ She said she will try, she didn’t say no. ” Further, even giving deference to the trial court’s observations of the juror’s tone and demeanor, we conclude that Juror 23’s responses did not indicate that she could be impartial because they were coupled with her direct statements regarding her loyalty and bias in favor of police

.

5 The Commonwealth cites Keepers as factually similar and as support for its argument that Juror 23 did not display bias or prejudice toward appellant or the Commonwealth. We find Keepers clearly distinguishable. In Keepers , during voir dire , Juror 40 made certain equivocal statements regarding whether she could be fair and impartial and state d “I . . . cannot sit here and- 8

- III. CONCLUSION

We hold that the trial court erred in denying the motion to strike Juror 23 for cause.
Accordingly, we reverse appellant’s convictions and remand the case for a new trial, should the

Commonwealth be so advised

.
Reversed and remanded

.

honestly say that what I heard is not going to bias me .” Id. at 31

- 32

. On appeal, our Court affirmed the trial court’s decision to seat the juror. Id. at 47. In doing so, we noted that in addition to some equivocal statements, Juror 40 made a number of other statements which suppor ted the trial court’s conclusion that she could be fair and impartial , including the statem ent that she was not “just going to stick with [her] opinion” but would wait to hear the evidence and learn what .

. . the law is.” Id. at 46

- 47 (alterations in original)

. Here, in contrast, Juror 23’s statements that were not equivocal in nature do not support the conclusion that she could be fair and impartial , as she pointedly said that she was “loyal ” and “biased” in favor of police.