COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Senior Judge Hodges 

Argued at Alexandria, Virginia 

RUSSELL TROSS 

v. Record No. 0828-94-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA DECEMBER 12, 1995 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Porter R. Graves, Jr., Judge 

 Steven D. Rosenfield (R. Bruce Wiles, on 

briefs), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Russell Tross (appellant) was convicted in a jury trial of 

capital murder in violation of Code § 18.2-31(4), robbery in 

violation of Code § 18.2-58, and using a firearm to commit murder 

in violation of Code § 18.2-53.1. On appeal, he argues that the 

trial court erred in: (1) exercising jurisdiction over the case 

when the juvenile intake system is facially unconstitutional 

under the Virginia Constitution's doctrine of separation of 

powers; (2) transferring jurisdiction without considering his 

amenability to treatment or rehabilitation as a juvenile; (3) 

refusing to strike for cause a potential juror predisposed to the 

death penalty; (4) denying his motion for a jury view of the 

crime scene; and (5) finding the evidence sufficient to support 

his convictions for robbery and capital murder. For the reasons 

that follow, we affirm the trial court. 
 2 

I. BACKGROUND

 On January 22, 1993, at 9:30 p.m., appellant, a sixteenyear-old, and four companions went to the Super Fresh grocery 

store in Harrisonburg, Virginia. On the way to the store, 

appellant suggested that they steal some beer. Two people, 

Clifford Silver (Silver) and Kelly Botkins (Botkins), entered the 

store. Intending to use his gun if anyone tried to stop them 

from stealing beer, appellant put the gun in his pocket, "just in 

case," and followed Silver and Botkins into the store. Silver 

and Botkins both took beer and left without paying. Appellant 

hid a forty-ounce bottle of beer in his pocket and began to 

leave. He walked through the first set of exit doors into the 

vestibule. Steven Daniel (Daniel), the store manager, blocked 

appellant's exit by standing between him and the second set of 

exit doors. Alcohol Beverage Control Board Agent S. O. Decker 

(Decker), who was investigating underage alcohol purchases at the 

store, was approaching the store's entrance when he saw appellant 

raise his right hand and fire a .25 caliber round into Daniel's 

face. Decker was standing six to eight feet away from the 

entrance when appellant shot Daniel and never saw Daniel touch 

appellant. Daniel died shortly thereafter. 

 Appellant fled with the stolen beer, fired two shots in the 

direction of the pursuing ABC agents, and sped off in the car 

with the others. Oran Wood (Wood) testified that, when appellant 

returned to the car, he had both the gun and a forty-ounce bottle 
 3 

of beer. A Rockingham County sheriff's deputy arrested appellant 

a few hours later. At trial, appellant testified that the gun 

discharged accidentally when he tried to turn over the gun to 

Daniel, who had grabbed his hand. 

 An intake officer of the Juvenile and Domestic Relations 

District Court for Harrisonburg and Rockingham County filed three 

petitions against appellant, charging him with capital murder, 

robbery, and using a firearm to commit murder. Finding the 

requirements of Code § 16.1-269(A)1

 satisfied, the juvenile court 

transferred the case to the Circuit Court of Rockingham County. 

The circuit court held a de novo hearing pursuant to Code § 16.1-

269(E) and also found the transfer proper under Code § 16.1-

269(A). The court referred the case to a grand jury that 

returned three indictments against appellant for capital murder, 

robbery, and using a firearm to commit murder. In a jury trial, 

appellant was convicted on all three charges and sentenced to 

life imprisonment for the capital murder, twenty years for the 

robbery, and two years for the firearm charge. 

 II. JURISDICTION OF JUVENILE COURT AND SEPARATION OF POWERS 

 After the intake officer authorized the petitions in this 

case, appellant moved to quash their issuance. The juvenile and 

domestic relations district court denied the motion to quash and 

found that the statutorily mandated intake process did not 

 

 1Code § 16.1-269 was repealed in 1994. The juvenile 

transfer requirements are now contained in Code § 16.1-269.1. 
 4 

violate the doctrine of separation of powers. On March 9, 1993, 

the juvenile judge found as follows: "[T]he appropriate sections 

of the Code of Virginia were followed by the intake officer and 

. . . the statutory framework of the commencement of juvenile 

petitions is constitutional and was followed in this case as to 

all three petitions." After transfer to the circuit court and 

indictment on all three charges, appellant again moved to quash 

the indictments on the same ground. The trial court denied his 

motion and found the intake system facially constitutional. 

 Appellant argues that the trial court lacked jurisdiction to 

try him because the juvenile intake system authorizes an 

executive branch officer to act in a judicial capacity, thus 

violating the principle of separation of powers contained in the 

Constitution of Virginia. See Va. Const. art. I, § 5 and art. 

III, § 1.2 He contends that juvenile intake officers are 

executive in nature because: (1) the Department of Youth and 

Family Services (the Department)3 appoints them pursuant to Code 

 

 2Article I, Section 5 of the Virginia Constitution provides 

"[t]hat the legislative, executive, and judicial departments of 

the Commonwealth should be separate and distinct." Article III, 

Section 1 of the Virginia Constitution states as follows: 

 The legislative, executive, and judicial 

departments shall be separate and distinct, 

so that none exercise the powers properly 

belonging to the others, nor any person 

exercise the power of more than one of them 

at the same time . . . . 

 3The Commonwealth does not dispute that the Department of 

Youth and Family Services is an executive agency under Code 

§§ 2.1-1.1, 2.1-1.2, and 66-1. 
 5 

§ 16.1-233(A); (2) the Department compensates them pursuant to 

Code §§ 16.1-233(B) and 16.1-238; and (3) they exercise the 

executive power to investigate and arrest. Additionally, 

appellant argues that juvenile intake officers possess the 

judicial power to determine probable cause, authorize the filing 

of petitions, and issue detention orders, thus creating an 

overlap in functions that violates the separation of powers 

doctrine. 

 In response, the Commonwealth asserts that: (1) any 

possible defect in the juvenile intake system does not affect the 

jurisdiction of the juvenile court; (2) an invalidly issued 

petition would not void appellant's conviction; and (3) the 

juvenile intake system is constitutional. We hold that the 

juvenile court properly exercised jurisdiction over appellant's 

case. 

(A) Juvenile Intake System

 The legislature created the juvenile and domestic relations 

district courts to fulfill certain purposes, including: 

 1. To divert from or within the juvenile 

justice system, to the extent possible, 

consistent with the protection of the public 

safety, those children who can be cared for 

or treated through alternative programs; 

 2. To provide judicial procedures 

through which the provisions of this law are 

executed and enforced and in which the 

parties are assured a fair hearing and their 

constitutional and other rights are 

recognized and enforced; 

 3. To separate a child from such child's 

parents, guardian, legal custodian or other 

person standing in loco parentis only when 

the child's welfare is endangered or it is in 
 6 

the interest of public safety and then only 

after consideration of alternatives to 

out-of-home placement which afford effective 

protection to the child, his family, and the 

community; and 

 4. To protect the community against 

those acts of its citizens which are harmful 

to others and to reduce the incidence of 

delinquent behavior. 

Code § 16.1-227. To achieve these goals, Code § 16.1-233(A) 

authorizes the Director of the Department of Youth and Family 

Services to "develop and operate . . . probation and other court 

services for juvenile and domestic relations district courts in 

order that all children coming within the jurisdiction of such 

courts throughout the Commonwealth shall receive the fullest 

protection of the court." The Director may appoint the necessary 

Department personnel to aid in the development and operation of 

court service units. Code § 16.1-233(A). The Department pays 

the salaries of these employees with Department funds. Code 

§ 16.1-233(B). 

 In Virginia, two types of probation and court service units 

exist: state court service units operated by the Department and 

local court service units. Code § 16.1-235. For both state and 

local court service units, the chief judge or judges of the 

juvenile and domestic relations district court may appoint 

probation officers and related court service personnel from a 

list of eligible persons certified by the Director or, in local 

court service units, certified by the local governing body. Id.

In appointing court service personnel, the juvenile court judges 
 7 

must comply with qualifications and regulations established by 

the State Board of Youth and Family Services pursuant to Code 

§ 16.1-233(C). Id. "No person shall be assigned to or 

discharged from the state-operated court service staff of a 

juvenile and domestic relations district court except as provided 

in Chapter 10 of Title 2.1, nor without the prior mutual approval 

of the judge thereof and the Director." Code § 16.1-233(D). 

Additionally, pursuant to Code § 16.1-236, in both state and 

local court service units, the chief judge of the juvenile and 

domestic relations district court may designate one or more 

probation officers as supervisors. 

 Probation and court service personnel in state-operated 

court service units are state employees paid by the Commonwealth. 

 Code § 16.1-238. Local court service unit probation officers 

and personnel are paid by the county or city, although any county 

or city complying with minimum standards set by the State Board 

may seek reimbursement from the Department for up to one-half of 

the compensation paid. Id.

 In addition to the traditional investigatory and supervisory 

powers of a probation officer, a juvenile probation officer 

possesses: (1) "the authority to administer oaths and take 

acknowledgements for the purposes of §§ 16.1-259 and 16.1-260 to 

facilitate the processes of intake and petition," Code 

§ 16.1-237(G); and (2) "the powers of arrest of a police officer 

and the power to carry a concealed weapon when specifically so 
 8 

authorized by the judge." Code § 16.1-237(H). Additionally, 

juvenile probation officers known as "intake officers" are 

responsible for "[c]omplaints, requests and the processing of 

petitions to initiate a case" in the juvenile and domestic 

relations district courts. Code § 16.1-260(A). 

 Under Code § 16.1-260(A), the filing of a petition that 

meets the requirements of Code § 16.1-262 commences any matter 

alleged to be within the jurisdiction of the juvenile and 

domestic relations district court. An intake officer "may 

authorize a petition to be filed by any complainant having 

sufficient knowledge of the matter to establish probable cause 

for the issuance of the petition." Code § 16.1-260(B). However, 

an intake officer may refuse to authorize the filing of a 

petition if he or she finds no probable cause for issuing the 

petition or the petition is not in the child's best interests. 

Id. If an intake officer refuses to authorize a petition 

involving a Class 1 misdemeanor or possible felony, the 

complainant has the right to apply to a magistrate for a warrant. 

 Code § 16.1-260(D). After the filing of the petition, the court 

must issue a summons to the child if the child is twelve years 

old or older and to the child's parents or guardian. Code 

§ 16.1-263.4

 

 4Other states have similar juvenile intake systems. For 

example, in North Carolina, the Administrative Office of the 

Courts has a Division of Juvenile Services that is responsible 

for the statewide system of juvenile probation and aftercare 

services. N.C. Gen. Stat. § 7A-289.3 (1987). The Director of 

the Administrative Office of the Courts appoints the 
 9 

 

(B) Juvenile Court Jurisdiction 

 The jurisdiction of the juvenile and domestic relations 

district courts is set out in Code § 16.1-241. Code 

§ 16.1-241(A)(1) provides that each juvenile and domestic 

relations district court has exclusive, original jurisdiction 

over proceedings involving delinquent children, unless the case 

is transferred to the circuit court. Additionally, the 

legislature enacted a specific provision dealing with any 

potential defect in the intake process, providing that "[f]ailure 

to comply with the [intake] procedures . . . shall not divest the 

juvenile court of the jurisdiction granted it in § 16.1-241." 

Code § 16.1-260(G). The filing of a petition pursuant to Code 

Administrator for Juvenile Services to head the Division. Id. 

The Administrator appoints chief court counselors for each 

district with the approval of each chief district judge and the 

Director. N.C. Gen. Stat. § 7A-289.4(3) (1987). Each chief 

court counselor supervises intake services in his or her 

district. N.C. Gen. Stat. § 7A-530 (1979). The intake 

counselors in each district screen petitions "alleging that a 

juvenile is delinquent or undisciplined to determine whether the 

petition should be filed." N.C. Gen. Stat. § 7A-517(17) (1993). 

 In Maine, the Department of Corrections has a Division of 

Probation and Parole that oversees probation and parole services. 

 Me. Rev. Stat. Ann. tit. 34-A, § 5401 (West 1985). The juvenile 

caseworkers who may request the filing of a petition to commence 

juvenile delinquency proceedings are employees of the Department. 

 Me. Rev. Stat. Ann. tit. 15, § 3301(1)(C) (West 1989); Me. Rev. 

Stat. Ann. tit. 34-A, § 5602(1) (West 1985). 

 Similarly, in Maryland, the Department of Juvenile Justice 

assigns intake officers to the juvenile courts. Md. Cts. & Jud. 

Proc. Code Ann. § 3-801(o) (1995). The Secretary of the 

Department must establish juvenile intake services, provide staff 

to operate the programs, and supervise the staff. Md. Ann. Code 

art. 83C, § 2-127 (1989). Intake officers assigned to the 

juvenile courts determine whether the juvenile court has 

jurisdiction and authorize the filing of petitions. Md. Cts. & 

Jud. Proc. Code Ann. § 3-810(c) (1995). 
 10 

§ 16.1-260(A) is not a jurisdictional prerequisite to the 

juvenile court acquiring subject matter jurisdiction over a case 

involving a delinquent child. 

 Additionally, the Commonwealth contends that the United 

States Supreme Court's decision in Gerstein v. Pugh, 420 U.S. 103 

(1975), resolves this case. In Gerstein, the Supreme Court held 

that an "illegal arrest or detention does not void a subsequent 

conviction." 420 U.S. at 119 (citing Frisbie v. Collins, 342 

U.S. 519 (1952)). The Florida procedures at issue in Gerstein

allowed a prosecutor to charge a defendant by information and 

detain him pending trial without any independent probable cause 

determination. Id. at 116. A class action filed by Florida 

prisoners sought declaratory and injunctive relief under the 

Civil Rights Act, 42 U.S.C. § 1983. Id. at 106-07. 

 In dealing with this Fourth Amendment challenge, the Court 

held that the "prosecutor's assessment of probable cause [was] 

not sufficient alone to justify restraint of liberty pending 

trial." Id. at 118-19. "[T]he Fourth Amendment requires a 

timely judicial determination of probable cause as a prerequisite 

to detention . . . ." Id. at 126. However, the Court recognized 

that, "although a suspect who is presently detained may challenge 

the probable cause for that confinement, a conviction will not be 

vacated on the ground that the defendant was detained pending 

trial without a determination of probable cause." Id. at 119 

(emphasis added). 
 11 

 A majority of state and federal courts have relied on 

Gerstein in holding that an illegal arrest or detention does not 

void a subsequent conviction. See, e.g., Seabolt v. Hopper, 240 

S.E.2d 57, 58 (Ga. 1977) (defendant arrested pursuant to warrant 

issued by justice of the peace under an invalid fee system); 

Tommie v. State, 279 S.E.2d 510, 512 (Ga. Ct. App. 1981) 

(defendant returned to state under warrant alleging offense other 

than one for which he was subsequently convicted); Commonwealth 

v. Sudler, 436 A.2d 1376, 1380 (Pa. 1981) (police failed to 

include informant's name in affidavits accompanying arrest 

warrant); Commonwealth v. Owens, 649 A.2d 129, 134 (Pa. Super. 

1994) (magistrate not detached and neutral because of 

quasi-familial relationship with victim), appeal denied, 656 A.2d 

118 (Pa. 1995); State v. Schreuder, 712 P.2d 264, 270-72 (Utah 

1985) (probable cause statement supporting arrest warrant failed 

to reveal source of information or any basis for determining the 

credibility or reliability of the source). 

 Following the Gerstein analysis, these courts remedy an 

invalid arrest or detention by excluding evidence derived from 

the invalid arrest or detention, rather than by granting a new 

trial or dismissing the charges. Sudler, 436 A.2d at 1380; 

Owens, 649 A.2d at 134; Schreuder, 712 P.2d at 271. More 

importantly, these courts have recognized that an illegal arrest 

or detention does not affect the jurisdiction of the court trying 

the defendant. Seabolt, 240 S.E.2d at 58; Sudler, 436 A.2d at 
 12 

1380; Schreuder, 712 P.2d at 271-72. In Schreuder, the Supreme 

Court of Utah explained the rationale behind the Gerstein rule: 

 [O]nce the risk of illegal detention has 

dissipated, i.e., by the time a trial has 

been held, the protection is no longer 

relevant or necessary because other 

constitutional safeguards have come into 

play. Under this analysis, the probable 

cause requirement for an arrest warrant 

becomes moot by the time a defendant has been 

convicted because the much more stringent 

requirements of proof at trial have been 

employed to protect the defendant. 

712 P.2d at 272. 

 Additionally, "the power of a court to try a person for 

crime is not impaired by the fact that he had been brought within 

the court's jurisdiction by reason of a 'forcible abduction.'" 

Frisbie v. Collins, 342 U.S. 519, 522 (1952) (Michigan police 

officers kidnapped defendant in Illinois in violation of Federal 

Kidnapping Act and brought defendant to Michigan for trial). In 

Frisbie, the Supreme Court reasoned that "due process of law is 

satisfied when one present in court is convicted of crime after 

having been fairly apprized [sic] of the charges against him and 

after a fair trial in accordance with constitutional procedural 

safeguards." Id. The United States Supreme Court reaffirmed 

Frisbie in United States v. Alvarez-Machain, 504 U.S. 655, 661-62 

(1992). In Alvarez-Machain, United States officials abducted a 

Mexican national and brought him to the United States for trial 

in connection with the kidnapping and murder of a United States 

Drug Enforcement Administration (DEA) agent and his pilot. 504 

U.S. at 657. The Supreme Court held that the defendant's 
 13 

abduction did not violate the United States-Mexico Extradition 

Treaty and that his "forcible abduction [did] not therefore 

prohibit his trial in a court in the United States for violations 

of the criminal laws of the United States." Id. at 670. 

 In Valentine v. Commonwealth, 18 Va. App. 334, 443 S.E.2d 

445 (1994), this Court relied on Alvarez-Machain and held that 

"the alleged defect in the institution of appellant's extradition 

pursuant to the Interstate Agreement on Detainers [was] not 

jurisdictional." Id. at 338, 443 S.E.2d at 447. Similarly, the 

Pennsylvania Superior Court applied the Gerstein-Frisbie analysis 

in a juvenile delinquency proceeding involving a juvenile who was 

not properly returned to the state for trial pursuant to the 

Interstate Compact on Juveniles. See In re Cowell, 364 A.2d 718, 

721 (Pa. Super. 1976). 

 The present situation is analogous to Gerstein and its 

progeny. Indeed, the deprivations of Fourth Amendment rights 

listed in those cases are far more egregious than the violation 

alleged in the instant case. Appellant does not assert that the 

intake officer failed to give a neutral evaluation of the basis 

underlying the petition nor does he contend that any Fourth 

Amendment violation occurred. He concedes that the intake 

officer did not abuse his statutory powers and thus violate 

appellant's due process rights. Indeed, he makes only a facial 

challenge to the statutory scheme and argues no prejudice or 

harm. Thus, even if the intake officer system were 
 14 

unconstitutional, any defects in the petition process would not 

void appellant's convictions. 

 (C) Juvenile Intake System's Constitutionality 

 Lastly, appellant failed to establish that the juvenile 

intake system violates the constitutional requirement of 

separation of powers. 

 We recognize that, "'[i]n assessing the constitutionality of 

a statute, we must presume that the legislative action is valid. 

 The burden is on the challenger to prove the alleged 

constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App. 

840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v. 

Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)). 

"[I]f a reasonable doubt exists as to a statute's 

constitutionality, the doubt must be resolved in favor of its 

validity. . . . [C]ourts will declare legislation invalid only 

when it is 'plainly repugnant to some provision of the state or 

federal constitution.'" Etheridge v. Medical Ctr. Hosp., 237 Va. 

87, 94, 376 S.E.2d 525, 528 (1989) (citations omitted). 

 In both state and local court service units, the chief judge 

or judges of the juvenile and domestic relations district courts 

are involved in the appointment of juvenile probation officers 

and, thus, intake officers. Code § 16.1-235 authorizes juvenile 

court judges to appoint probation officers and other court 

service personnel. Although the Department Director and the 

State Board are involved in the appointment process, this 
 15 

involvement does not minimize the input of the juvenile court 

judges. Additionally, under Code § 16.1-233(D), the juvenile and 

domestic relations district court judges and the Director have 

equal control over the assignment and discharge of the personnel 

in state court service units, and the juvenile court chief judges 

have the power to appoint probation officers to supervisory 

positions under Code § 16.1-236. 

 "A primary rule of statutory construction is that courts 

must look first to the language of the statute. If a statute is 

clear and unambiguous, a court will give the statute its plain 

meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245 

Va. 80, 85, 425 S.E.2d 800, 802 (1993). We hold that the plain 

meaning of the statutes involved is that juvenile and domestic 

relations district court judges have co-appointment and discharge 

powers over juvenile intake officers in both state-operated and 

local court service units. Thus, juvenile intake officers are 

not purely executive officers as appellant contends, but are 

quasi-judicial in nature. 

 Additionally, the Supreme Court of Virginia has adopted the 

"whole power" doctrine in reviewing an alleged violation of the 

separation of powers. See Winchester & Strasburg R.R. Co. v. 

Commonwealth, 106 Va. 264, 268-70, 55 S.E. 692, 693-94 (1906); 

Baliles v. Mazur, 224 Va. 462, 472, 297 S.E.2d 695, 700 (1982). 

In Winchester & Strasburg Railroad, the Supreme Court stated as 

follows: 

 When we speak . . . of a separation of the 
 16 

three great departments of government, and 

maintain that that separation is 

indispensable to public liberty, we are to 

understand this maxim in a limited sense. It 

is not meant to affirm that they must be kept 

wholly and entirely separate and distinct, 

and have no common link or dependence, the 

one upon the other, in the slightest degree. 

The true meaning is that the whole power of 

one of these departments should not be 

exercised by the same hands which possess the 

whole power of either of the other 

departments; and that such exercise of the 

whole would subvert the principles of a free 

constitution. . . . Indeed there is not a 

single constitution of any state in the union 

which does not practically embrace some 

acknowledgment of the maxim and at the same 

time some admixture of powers constituting an 

exception to it. 

106 Va. at 270, 55 S.E. at 694 (emphasis added) (quoting Dreyer 

v. Illinois, 187 U.S. 71, 84 (1902)). 

 In the instant case, while there is some overlap of 

executive and judicial functions, juvenile intake officers do not 

exercise the "whole power" of the judiciary. Although the 

juvenile intake officers authorize filing petitions to commence 

juvenile proceedings, the juvenile and domestic relations 

district court judges control the actual disposition of juveniles 

before the court. The judicial powers assigned to the juvenile 

intake officers, such as determining probable cause to invoke the 

juvenile court's jurisdiction and issuing detention orders, are 

in accord with the quasi-judicial nature of the intake officers. 

Such powers are analogous to the duties of magistrates in the 

adult criminal system. See Code § 19.2-45. Thus, for the 

foregoing reasons, we hold that the juvenile intake system does 
 17 

not violate the Virginia Constitution's doctrine of separation of 

powers. 

III. AMENABILITY TO TREATMENT

 Next, appellant argues that the trial court erred in 

refusing to consider his amenability to treatment or 

rehabilitation as a juvenile when deciding whether to transfer 

his case to the circuit court. The trial judge found that 

appellant's "amenability to treatment or rehabilitation as a 

juvenile [was] not a factor in this proceeding" because of the 

nature of the charges involved. 

 In a juvenile transfer hearing, "the trial court's decision 

whether to transfer jurisdiction will not be reversed absent a 

showing that its exercise of discretion has been abused." Kluis 

v. Commonwealth, 14 Va. App. 720, 723, 418 S.E.2d 908, 909-10 

(1992). "[W]hen the alleged delinquent act is armed robbery, 

rape . . . or murder, . . . the court may certify the child 

without making the [amenability to treatment] finding required by 

this subdivision." Code § 16.1-269(A)(3)(b) (emphasis added).5

 

 

 5Code § 16.1-269 was repealed in 1994. Code § 16.1-269.1(B) 

now provides as follows: 

 The court may hold a transfer hearing 

and certify the juvenile for transfer to the 

appropriate circuit court without making the 

finding required by subdivision A 4 if a 

juvenile fourteen years of age or older is 

charged with: 

 1. A Class 1 or 2 felony violation of 

Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 

or, if the juvenile is sixteen years of age 

or older, a Class 3 felony violation of 

Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 
 18 

"The statute . . . dispenses with the finding that the juvenile 

is unamenable 'to treatment or rehabilitation' as a prerequisite 

to transfer in such instances." Novak v. Commonwealth, 20 Va. 

App. 373, 383, 457 S.E.2d 402, 406-07 (1995) (quoting Code 

§ 16.1-269(A)(3)(b)). "A determination of nonamenability based 

solely on the [delinquent act] . . . is only permissible when the 

offense is one of those enumerated in the statute." Hutcherson 

v. Commonwealth, 7 Va. App. 534, 537, 375 S.E.2d 403, 404 (1989). 

 In this case, the delinquent acts committed by appellant 

included armed robbery in violation of Code § 18.2-58 and capital 

murder in violation of Code § 18.2-31(4).6 Code 

§ 16.1-269(A)(3)(b) specifically lists these acts as not 

requiring a finding of nonamenability. Thus, the trial judge did 

not abuse his discretion in determining nonamenability based 

solely on the nature of the charges. 

IV. JUROR STRIKE 

 Appellant next argues that the trial court erred in refusing 

 

for: (i) murder under Article 1; (ii) 

mob-related felony under Article 2; (iii) 

kidnapping or abduction under Article 3; or 

(iv) assault or bodily wounding under Article 

4; or 

 2. Any unclassified felony violation of 

Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 

which carries a maximum penalty of 

imprisonment for life or a term of 

imprisonment of forty years if committed by 

an adult. 

 6Although not raised by appellant, we note that the use of a 

firearm in the commission of murder charge is encompassed within 

the "delinquent act" of murder as enumerated in the statute. 
 19 

to strike for cause venireman Jeff Morris (Morris) because Morris 

was predisposed to imposing the death penalty. 

 During voir dire, the trial judge asked Morris: "[W]ould 

you be able to consider voting for a sentence less than death?" 

Morris answered: "I don't think so." The judge and both 

attorneys then questioned Morris regarding his views on the death 

penalty. Morris testified that: (1) he would not automatically 

vote for the death penalty; (2) he would follow the instructions 

of the court; and (3) he would vote for life imprisonment if the 

Commonwealth failed to prove the aggravating factors. The court 

found, over appellant's objection, that Morris was qualified as a 

juror and refused to excuse him for cause. The judge stated: 

 Although there were certain things that . . . 

Mr. Morris, the juror, stated [that] were 

maybe not correct or his personal feeling, he 

did not hesitate when all the voir dire is 

considered to respond with respect to 

instruction of law by the Court. And I 

believe that based upon my view of the juror 

he is under all circumstances qualified to 

serve as a juror. 

Appellant used his first peremptory strike to remove Morris from 

the panel. 

 On appeal, this Court 

 "must give deference to the trial court's 

decision whether to retain or exclude 

individual veniremen because the trial court 

'sees and hears the juror.' For that reason, 

the trial court's decision in that regard 

will not be disturbed on appeal absent a 

showing of 'manifest error.' 

 The standard to be applied by the trial 

court in determining whether to retain a 

venireman on the jury panel is whether his 
 20 

answers during voir dire examination indicate 

to the court something that 'would prevent or 

substantially impair the performance of his 

duties as a juror in accordance with his 

instructions and his oath.'" 

Satcher v. Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831 

(1992) (citations omitted) (quoting Eaton v. Commonwealth, 240 

Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 

824 (1991)), cert. denied, 113 S. Ct. 1319 (1993). 

 In Satcher, the Supreme Court of Virginia upheld the trial 

court's refusal to strike five prospective jurors for being 

predisposed to the death penalty. 244 Va. at 236, 421 S.E.2d at 

831. The Court determined that, although all five veniremen 

indicated a favorable attitude toward the death penalty, they 

stated that: (1) they could impose life imprisonment in a murder 

case; (2) they would consider mitigating evidence; (3) they would 

render an impartial verdict regardless of their views about the 

death penalty; and (4) they would follow the court's instructions 

about the Commonwealth's burden of proving aggravating factors. 

Id. at 235, 421 S.E.2d at 830-31. "[W]ith respect to all five, 

the trial court expressed confidence in their ability to follow 

the court's instructions, to stand indifferent to the cause, and 

to render a fair verdict." Id. at 236, 421 S.E.2d at 831. 

 The colloquy in the instant case is less compelling than 

that in Satcher, and the trial court did not err in refusing to 

strike Morris for cause. Morris testified that: (1) he would 

vote for life imprisonment if the Commonwealth failed to prove 
 21 

the aggravating factors; (2) he would consider mitigating 

factors; (3) he had not formed an opinion about appellant's guilt 

and would have an open mind; and (4) he would follow the judge's 

instructions. The trial court's decision to retain Morris does 

not show "manifest error" but rather careful consideration by the 

trial judge, who was in the best position to determine Morris's 

qualifications. 

V. JURY VIEW

 Appellant contends that the trial court erred in denying his 

motion for a jury view of the crime scene because some of the 

jurors knew more than others about the Super Fresh grocery store 

where the shooting occurred. In denying appellant's motion, the 

trial judge stated as follows: 

 [W]e're not sure what things are there that 

were not there [eleven months ago] or 

pertinent parts of the store or outside of 

the store, whether the lighting is different, 

whether many things are different. 

* * * * * * * 

 Here there are many factors that are 

important in determination of the case, the 

lighting, the time of day, how the lights 

were reflecting, various things. And the 

thing that concerns me is . . . whether . . . 

the jury may attempt to substitute what they 

see on a view for what evidence they heard 

 . . . . 

 Code § 19.2-264.1 allows a jury view in criminal cases "when 

it shall appear to the court that such view is necessary to a 

just decision." Granting a view is within the sound discretion 

of the trial court. Quesinberry v. Commonwealth, 241 Va. 364, 
 22 

378, 402 S.E.2d 218, 227, cert. denied, 502 U.S. 834 (1991). 

 We find no abuse of discretion by the trial court. 

Photographs, diagrams, and other evidence established the layout 

of the store, and the view was not "necessary to a just 

decision." 

VI. SUFFICIENCY OF THE EVIDENCE

 (A) Robbery

 Lastly, appellant argues that the trial court erred in 

finding the evidence sufficient to support both his robbery and 

murder convictions. He contends initially that the evidence 

failed to establish that he took beer from the store. At trial, 

the evidence was disputed as to whether appellant took beer from 

the Super Fresh store. 

 "Determining the credibility of witnesses who give 

conflicting accounts is within the exclusive province of the 

jury, which has the unique opportunity to observe the demeanor of 

the witnesses as they testify." Lea v. Commonwealth, 16 Va. App. 

300, 304, 429 S.E.2d 477, 479 (1993). "The jury's finding that a 

particular witness was credible will not be reversed on appeal 

unless plainly wrong or without evidence to support it." Id.

 In this case, the evidence established that appellant had 

beer in his possession when he entered the car following the 

shooting. Appellant's testimony that he handed beer to Silver 

while inside the store was contradicted by Wood, one of 

appellant's companions. Wood testified that appellant had beer 
 23 

when he "got into the car." (Emphasis added). The jury was 

entitled to believe Wood over appellant. 

 Robbery is defined as "'the taking, with intent to steal, of 

the personal property of another, from his person or in his 

presence, against his will, by violence or intimidation.'" Beard 

v. Commonwealth, 19 Va. App. 359, 361-62, 451 S.E.2d 698, 699-700 

(1994) (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163 

S.E.2d 570, 572-73 (1968)). 

 The distinctive elements of robbery are 

(1) the use of violence, or the threat 

thereof, against the victim, and (2) the 

theft of property from his person or in his 

presence. Theft of property is a trespass 

upon the rights of the owner therein for as 

long as he is deprived of the use thereof; he 

retains legal possession of the goods stolen 

even when they are in the actual possession 

of the thief. In a robbery prosecution, 

where the violence against the victim and the 

trespass to his property combine in a 

continuing, unbroken sequence of events, the 

robbery itself continues as well for the same 

period of time. 

Briley v. Commonwealth, 221 Va. 532, 543, 273 S.E.2d 48, 55 

(1980) (citation omitted), cert. denied, 451 U.S. 1031 (1981). 

The Supreme Court of Virginia has "affirmed convictions for 

capital murder during the commission of a robbery when the 

evidence was sufficient to support a conclusion that the killing 

and theft were interdependent objects of a common criminal 

design." Quesinberry, 241 Va. at 374, 402 S.E.2d at 224. 

"[W]here a killing and a taking of property are so closely 

related in time, place, and causal connection as to make them 
 24 

parts of the same criminal enterprise, the predicates for capital 

murder . . . are established." Pope v. Commonwealth, 234 Va. 

114, 125, 360 S.E.2d 352, 359 (1987), cert. denied, 485 U.S. 1015 

(1988). 

 In Quesinberry, the defendant and an accomplice planned to 

break into a warehouse. Before going to the warehouse, the 

defendant stopped to get his gun for "security." While the 

defendant and his accomplice were stealing money from an office 

in the warehouse, the warehouse owner interrupted them. The 

owner ran, and the defendant chased and shot him. The defendant 

and his accomplice then took the money and left the warehouse. 

Quesinberry, 241 Va. at 368-69, 402 S.E.2d at 221. 

 "When considering the sufficiency of the evidence on appeal 

of a criminal conviction, we must view all the evidence in the 

light most favorable to the Commonwealth . . . ." Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

In this case, the evidence established that appellant and his 

companions planned a trip to the store to steal beer. Before 

appellant went inside the store, he put the gun in his jacket 

pocket, "just in case," intending to use the gun if anyone tried 

to stop them. Appellant hid a bottle of beer in his pocket. As 

he was leaving, the manager stopped him, and appellant shot the 

manager in the face. Under these circumstances, as in 

Quesinberry, the evidence was sufficient to show that the taking 

of the beer and the killing of Daniel were part of the "same 
 25 

criminal enterprise" and intimately connected. 

 Appellant contends that, even if he took the beer, it was a 

completed act before he encountered the manager and thus no 

robbery occurred. However, this Court has endorsed the concept 

of continuing asportation. Beard, 19 Va. App. at 363, 451 S.E.2d 

at 700. In Beard, we held that "asportation of stolen property 

continues and is not complete until the taker severs the property 

from the absolute control and possession of the victim." Id. 

In this case, appellant's asportation of the beer continued until 

he shot the store manager in the face and took beer from the 

manager's dominion and control. 
 26 

(B) Murder

 Appellant also asserts that the evidence is insufficient to 

support his conviction for murder because he testified that the 

gun discharged accidentally. Again, appellant's version of 

events was disputed by Agent Decker, who testified that he saw 

appellant shoot the manager in the face and that the manager did 

not cause the gun to discharge accidentally. Specifically, Agent 

Decker stated as he demonstrated for the jury: 

 They were approximately this far apart and 

their shoulders I remember were square. The 

defendant turned to his right and smiled, a 

few seconds later similar to this, that 

quick, [his] right arm goes up . . . to Steve 

Daniel's face. I heard a popping sound. 

Daniel immediately collapsed to the floor. 

* * * * * * * 

 I did not see any contact [between Mr. 

Daniel and the defendant]. 

The jury, as fact finder, was entitled to believe Agent Decker 

over appellant. The evidence was sufficient to convict appellant 

of murder, and, accordingly, the decision of the trial court is 

affirmed. 

 Affirmed.