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CRESSELL v. COMMONWEALTH



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CRESSELL

v.

COMMONWEALTH


JULY 11, 2000

Record No. 0270-99-3

Present: Chief Judge Fitzpatrick, Judges
Coleman and Frank

Argued at Salem, Virginia

EMMETT WARD CRESSELL, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GRAYSON COUNTY


J. Colin Campbell, Judge

Mark W. Claytor (Jeffrey L. Dorsey, on brief),
for appellant.

Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Emmett Ward Cressell was convicted in a jury
trial of first degree murder. He was sentenced to life
imprisonment and fined $100,000. On appeal, Cressell argues that
the trial court erred by denying his motion for a change of venue
and by failing to strike three jurors for cause. He also argues
that the evidence is insufficient to support his conviction.
Finding no error, we affirm.

I. BACKGROUND

On July 24, 1997, Cressell, Louis Ceparano,
Hazel Anderson, Christy Harden, and G.P. Johnson spent the
evening and early morning hours of July 25, celebrating Harden’s
twenty-first birthday. At some point in the evening, the birthday
celebration moved to Ceparano’s trailer. Everyone was drinking
heavily except Anderson. Before the evening ended, Johnson, who
was of African-American descent, became the victim of a gruesome
murder. Johnson, who was intoxicated, was doused with gasoline,
set afire, burned alive, and decapitated.

Hazel Anderson testified that at least twice
during the evening Cressell grabbed Johnson by the shirt collar,
called him a "nigger," and accused Johnson of trying to
start a fight between Cressell and Ceparano. Later that evening,
Cressell and Ceparano were "horseplaying" with Johnson
on a mattress on the floor. Both Cressell and Ceparano stated
several times that they were going to take Johnson outside and
"burn him on a white cross." Anderson testified that
Cressell took off Johnson’s watch and, in response to Johnson’s
request to return the watch, Cressell stated that "where
you’re going, they had their own time." Cressell then
grabbed Johnson’s shoulders while Ceparano grabbed Johnson’s
legs, and together, the two carried Johnson outside. Johnson,
apparently not comprehending the situation, told Cressell and
Ceparano to be careful not to hurt his ankle, which he had
injured in a car accident a few weeks earlier. Johnson stated, as
he was being carried out of the trailer, "why don’t you just
shoot me."

Harden, who remained in the trailer with
Anderson, testified that she looked out the window and noticed a
large fire. Harden stepped onto the front porch and realized that
Johnson was being burned alive. She testified that Ceparano was
standing near Johnson and Cressell was walking back in the
direction of the trailer. Cressell and Ceparano returned to the
trailer without Johnson. Both Anderson and Harden stated that
they smelled gasoline fumes, and Anderson testified that she
smelled the fumes emanating from Cressell when he returned to the
trailer. Ceparano went back outside, and when Anderson began to
follow Ceparano, Cressell stated sarcastically, "it’d be
best if you don’t go outside." Later, Ceparano cornered
Anderson in the kitchen and told her in a threatening manner that
he had walked Johnson home. He threatened to kill her if she told
anyone anything different. Ceparano again went outside, and when
he returned, he had blood on the front of his pants. Ceparano
changed clothes and washed his pants.

Harden testified that Cressell told her that
Ceparano poured gasoline on Johnson and set him on fire. She
testified that she and Cressell left the trailer, flagged down a
passing car, and proceeded to the Sheriff’s office where Cressell
informed the deputies that Ceparano had murdered Johnson.

In Cressell’s initial statements to the
authorities, he denied any involvement in Johnson’s murder. He
later admitted, however, that he helped Ceparano carry Johnson
outside and across the driveway. Cressell consistently denied
pouring gasoline on Johnson or setting him on fire. Rather,
Cressell stated that he saw Ceparano pour gasoline on Johnson and
set him on fire. Ceparano denied murdering Johnson.

Johnson’s burned, decapitated body was found
near Ceparano’s trailer. When investigators arrived at the scene,
they discovered Johnson’s body lying in a prone position still on
fire. The investigator observed two burn sites on Ceparano’s
property. At the second burn site, the investigator found
"what appeared to be a piece of a skull," a gas can,
beer cans, a blood stain, and debris piled on top of Johnson’s
body. There appeared to be a trail of blood from the first burn
site to the second. At the first burn site, investigators found a
belt buckle and loose change. Johnson’s wallet was lying on the
ground a few feet from the back door of Ceparano’s trailer, and
Johnson’s checkbook and watch were on the loveseat in the
trailer. Johnson’s body had been decapitated and his head was
buried beneath his body in a hole more than a foot deep. Near the
trailer, the investigator found a shovel and a splitting maul.
Ceparano had blood on his hands and on his clothing.

An autopsy of Johnson’s body revealed that the
cause of death was "inhalation of flame with edema of the
lungs and burning of the respiratory passages." The evidence
indicated that the fire had been started using an accelerant.
Johnson was decapitated postmortem. Johnson’s skull suffered a
number of blunt trauma and chop injuries. His skull was
fractured, and his brain was out of the cranial cavity due to the
nature of the injuries.

II. ANALYSIS

A. Motion for a Change of Venue

Prior to trial, Cressell moved for a change of
venue, arguing that widespread media attention created
"community prejudice" against him. He argued that the
news reports were inflammatory, hostile, and prejudicial.
Cressell stated that a newspaper photograph of him in a prison
uniform, wearing handcuffs and leg irons, created an aura and
impression in the minds of prospective jurors in the community
that he was guilty. The media also impermissibly reported his
criminal record and prejudicial evidence concerning particulars
of the crime that would be inadmissible at trial. Although
Cressell conceded at oral argument that the media reports were
factually accurate, he argued that the coverage was inflammatory,
pointed, and selective, because the photographs in the newspaper
articles of the victim showed him as a "young, good-looking
black man in a dress marine corps uniform with a background of
the American flag," while the newspaper articles pictured
him, the defendant, in "slovenly jail garb, a mug
shot." In addition, Cressell argues that the media portrayed
the murder as a "hate crime" and Grayson County as a
"hot bed of racism." He asserts that by doing so, the
media put the citizens of Grayson County "on trial" to
defend their reputation as jurors and that is the "reason
that [he] was convicted of anything at all."

At counsel’s request, the court took the motion
for change of venue under advisement pending a determination of
whether a qualified and unbiased jury panel could be seated.
After voir dire of eighty-one potential jurors, a
panel of twenty-four jurors was seated. Of the eighty-one
prospective jurors, the court excused twenty because each
expressed the view that he or she had formed an opinion about the
defendant’s guilt or innocence from news accounts that he or she
would be unable to set aside. The court excused nine prospective
jurors because each was opposed to the death penalty.
Twenty-eight others were excused for "various sundry
reasons." The court denied the motion for a change of venue,
noting that, although the case had received widespread publicity,
a qualified jury had been selected.

"’It is presumed that a defendant can
receive a fair trial in the locality where the offense occurred,
and the burden is on the accused to overcome that presumption by
clearly demonstrating widespread prejudice against him.’" Brown
v. Commonwealth
, 28 Va. App. 315, 336, 504 S.E.2d 399, 409
(1998) (quoting LaVasseur v. Commonwealth, 225 Va. 564,
577, 304 S.E.2d 644, 651 (1983)). "’A change of venue based
on pre-trial publicity is required when the defendant
demonstrates that there is "widespread" prejudice
against him and that such prejudice would, with reasonable
certainty, prevent a fair trial.’" Brown, 28 Va. App.
at 336, 504 S.E.2d at 409 (quoting Chandler v. Commonwealth,
249 Va. 270, 275, 455 S.E.2d 219, 222 (1995)). The trial court’s
decision whether to grant a motion for change of venue is
reviewed for an abuse of discretion. See Kasi v.
Commonwealth
, 256 Va. 407, 420, 508 S.E.2d 57, 64 (1998), cert.
denied, 119 S. Ct. 2399 (1999).

"’[E]xtensive knowledge in the community
of either the crimes or the putative criminal is not sufficient
by itself to render a trial constitutionally unfair.’" George
v. Commonwealth
, 242 Va. 264, 274, 411 S.E.2d 12, 18 (1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)
(abrogation on other grounds recognized by Grimes v. State,
807 S.W.2d 582 (Tex. Crim. App. 1991)). "The fact that there
have been media reports about the accused and the crime does not
necessarily require a change of venue." Roach v.
Commonwealth
, 251 Va. 324, 342, 468 S.E.2d 98, 109 (1996)
(citation omitted). "A significant factor in determining
whether a change of venue is warranted is whether the media
reports are factual and accurate." Mueller v.
Commonwealth
, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992)
(citation omitted). "Another significant factor the trial
court must consider is ‘the difficulty encountered in selecting a
jury.’" Roach, 251 Va. at 342, 468 S.E.2d at 109
(quoting Mueller, 244 Va. at 398, 422 S.E.2d at 388).

Cressell has not overcome the presumption that
he received a fair trial in Grayson County. Here, virtually every
prospective juror admitted hearing about the case through the
media or by speaking with others. After extensive voir dire,
twenty-four jurors were selected who "unequivocally answered
that they could enter the jury box with an open mind and wait
until the entire case was presented before reaching a fixed
opinion."

Prospective jurors are not required or expected
to be completely ignorant of the facts and the issues surrounding
a highly publicized case; all that is required is that a
prospective juror can lay aside his or her impression or opinion
and render a verdict based upon the law and evidence.

Ascher v. Commonwealth, 12 Va. App.
1105, 1114, 408 S.E.2d 906, 912 (1991) (citation omitted).

Moreover, the jury was selected with relative
ease, and more prospective jurors were excused for reasons
unrelated to publicity than were excused for holding fixed,
preconceived notions about Cressell’s guilt. See Brown,
28 Va. App. at 337-38, 504 S.E.2d at 409-10 (finding no error in
denying motion where twenty-four of sixty prospective jurors
acknowledged awareness of publicity); Thomas v. Commonwealth,
244 Va. 1, 10-12, 419 S.E.2d 606, 611-12 (1992) (affirming trial
court’s ruling denying change of venue where thirty-one percent
of prospective jurors questioned were excused because of pretrial
publicity). Finally, Cressell conceded at oral argument that the
media reports were factually accurate. See Mueller,
244 Va. at 398, 422 S.E.2d at 388; see also Buchanan
v. Commonwealth
, 238 Va. 389, 407, 384 S.E.2d 757, 767 (1989)
(noting that media coverage disclosing the accused’s criminal
record is insufficient to justify a change of venue).
Accordingly, the trial court did not abuse its discretion in
denying the motion for a change of venue.

B. Jury Challenge

Cressell argues that the trial court erred in
failing to strike three prospective jurors for cause. Cressell
contends that prospective jurors Organ and Hancock should have
been struck because they were members of a "poisoned
panel" that he sought to have struck in its entirety and
that juror Thompson should have been struck because during voir
dire she expressed sentiments that she could not be
indifferent to the cause.

"The right to a trial by an impartial jury
is guaranteed under both the United States and Virginia
Constitutions." Gosling v. Commonwealth, 7 Va. App.
642, 645, 376 S.E.2d 541, 543 (1989) (citing U.S. Const. amend
VI; Va. Const. art I, ? 8). "[S]o long as the jury
that sits is impartial," the compelled use of a peremptory
challenge by a defendant to remove a biased juror does not
violate the Sixth Amendment because peremptory challenges are
"auxiliary" and "are not of federal constitutional
dimension." United States v. Martinez-Salazar, 120 S.
Ct. 774, 779-80 (2000).
[1] However, the Virginia Supreme Court has held in Breeden
v. Commonwealth
, 217 Va. 297, 300, 227 S.E.2d 734, 737
(1976), that as a matter of state law, relying on Code
?? 8.01-357 and -358, an accused is entitled to a panel of
jurors free from exception before exercising peremptory
challenges. Thus, we review a trial court’s decision whether to
strike a prospective juror for cause for an abuse of discretion
and that ruling will not be disturbed on appeal unless it appears
from the record that the trial court’s action constitutes
manifest error. See Stockton v. Commonwealth, 241
Va. 192, 200, 402 S.E.2d 196, 200 (1991).

The constitutional guarantee of an impartial
jury does not contemplate excluding those who have read or heard
news accounts concerning the case or even exclusion of those who
may have formed an opinion based on such
accounts. . . . The test, instead, is whether a
juror is capable of laying aside a preconceived opinion and
rendering "a verdict solely on the evidence."

Wilmoth v. Commonwealth, 10 Va. App.
169, 173, 390 S.E.2d 514, 516 (1990) (citations omitted).

1. Jurors Organ and Hancock

Jurors Organ and Hancock were members of a
thirteen member panel that was initially subjected to voir
dire as a group. During voir dire, eleven of
the prospective jurors stated they had formed opinions about the
accused’s guilt or expressed other sentiments which required that
the judge excuse those eleven jurors for cause. Organ and Hancock
were the two remaining jurors from the panel of thirteen who were
not removed for cause. Cressell timely objected to the seating of
jurors Organ and Hancock on the ground that they were present and
unduly influenced when the other prospective jurors stated in
Organ’s and Hancock’s presence that each had formed an opinion
about the case, or explained how they knew the parties, or that
they were prejudiced toward the testimony of law enforcement.

Although none of the eleven jurors excused
expressly stated his or her opinion about Cressell’s guilt or
innocence, one readily concludes from the responses that most, if
not all, believed Cressell was guilty. However, both Organ and
Hancock unequivocally stated that they did not hold fixed,
preconceived opinions regarding Cressell’s guilt or innocence and
affirmatively stated that they could be fair and impartial. Both
answered affirmatively when asked whether they understood that
Cressell was presumed innocent until proven guilty and that he
had no burden to present any evidence. Both Organ and Hancock
also answered affirmatively when asked if they could set aside
any preconceived views and render a verdict based solely on the
law and evidence presented at trial. Moreover, Organ and Hancock
stated that they were not influenced by the fixed opinions of the
eleven prospective jurors who were excused. Accordingly, the
trial court did not err in refusing to strike Organ and Hancock
for cause.

2. Juror Thompson

Cressell argues that the court erred by
refusing to strike Thompson for cause and that the court’s
refusal to strike Thompson was not cured by the defense’s use of
a peremptory challenge.

Cressell correctly asserts that his use of a
peremptory strike to remove Thompson does not cure prejudice
caused to him by seating a biased juror. See Brooks v.
Commonwealth
, 24 Va. App. 523, 530-31, 484 S.E.2d 127, 130
(1997) (finding that a prosecutor’s use of a peremptory challenge
to remove a prospective juror who should have been stricken for
cause will not cure possible prejudice); see also DeHart
v. Commonwealth
, 20 Va. App. 213, 216, 456 S.E.2d 133, 134
(1995). "A defendant has a right to an impartial jury drawn
from ‘a panel [of twenty] free from exceptions.’" Breeden,
217 Va. at 300, 227 S.E.2d at 737 (citation omitted); see also
Code ?? 8.01-357, 8.01-358, 19.2-262(2). "If a
venireman who should have been removed for cause is allowed to
remain on the jury panel, the accused is ‘denied the opportunity
of having another impartial person on his jury.’" Brown
v. Commonwealth
, 29 Va. App. 199, 212, 510 S.E.2d 751, 757
(1999) (citation omitted). The trial court, however, did not err
in refusing to strike Thompson for cause.

During voir dire of Thompson, the
following colloquy occurred:

COURT: Can you put what you’ve read or heard
about it totally aside and have an open mind when you enter the
jury box?

THOMPSON: Yes sir.

* * * * * * *

[DEFENSE COUNSEL] CLAYTOR: Have you formed any
opinion about his [Cressell's] character or anything like that
based upon what you’ve read in the paper?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] CLAYTOR: Do you think [the
defendant is] guilty of something as he sits here? I see you
nodding your head Ms. Thompson. What do you mean by that?

THOMPSON: I feel like he’s probably guilty of
something because why would he be here at this far.

* * * * * * *

[DEFENSE COUNSEL] CLAYTOR: Do you believe that
someone who is present during the commission of a crime and
possibly could have stopped it shares responsibility for that
crime and is therefore guilty of at least something? I see you
shaking your head yes Ms. Thompson.

THOMPSON: Yes.

[DEFENSE COUNSEL] CLAYTOR: Now in the event
that the Court gave you instructions to the contrary, can you put
that feeling aside and do exactly as the Court instructs you do
to? I see you shaking your head yes Ms. Thompson.

THOMPSON: (Inaudible.)

* * * * * * *

[DEFENSE COUNSEL] DORSEY: Now based on what
you’ve seen in the media, and I won’t [sic] you to be honest
about this, okay. I want you to think about your answers about
this and be honest about this. But based on what you’ve seen in
the media, read in the media, read in the newspaper, seen on
T.V., do you have a feeling about what happened in this case? Ms.
Thompson, you’re saying you didn’t. Is that right?

THOMPSON: Yes sir.

* * * * * * *

[DEFENSE COUNSEL] DORSEY: Now here’s the,
here’s the, here’s a tough question. If the Court told you to set
that opinion aside to forget about that opinion and have it not
enter into your mind or into your heart, to use that word, if the
Court told you to set that opinion aside, would that be a hard
thing for you to let . . . ? You could set it
aside?

THOMPSON: Yes.

* * * * * * *

[DEFENSE COUNSEL] DORSEY: We talked about media
coverage. Have you talked about this case with anybody? Have
you-all had conversations about this case with folks in your
neighborhood or community over the course of the months that this
has been going on?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: During those
conversations, did those conversations lead you to come to
conclusions about what you think happened?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: Ms. Thompson, you’re
saying yes. You’re saying yes.

THOMPSON: Yes.

[DEFENSE COUNSEL] DORSEY: Here again, I’m going
to ask you the same question that I asked you before about media
coverage, I mean, now you already answered this question. I
understand your answer. But would those conversations that you’ve
had combined with media and combined with everything that you
know about this case, would that influence your decision?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: Could you set that
aside?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: You could set it
aside? Ms. Thompson?

THOMPSON: (No audible response.)

* * * * * * *

[DEFENSE COUNSEL] DORSEY: From the witness
stand. From exhibits that are produced before you. I want to ask
you a question about your exposure to the media and exposure to
the newspaper and T.V. accounts. Let’s say that you’ve heard all
the evidence from the witness stand. Got all the exhibits and the
case is over. Mr. Bolt’s presented his case and we’ve presented
our case and the case is over. But there was some fact that you
read about in the newspaper that was never presented to you in
Court. Never showed in Court. Would you have a hard time setting
that fact aside? You read something in the paper that you know,
well I know that this happened because I read it in the paper a
million times but that never showed upon [sic] in Court. Would
you still think about that fact? Ms. Thompson?

THOMPSON: I don’t think I would.

[DEFENSE COUNSEL] DORSEY: You don’t think you
would? You’d be able to set that aside?

THOMPSON: Yeah.

* * * * * * *

[COMMONWEALTH'S ATTORNEY] BOLT: Ladies and
Gentlemen . . . if the Court instructs you that
the defendant is presumed innocent, do you, does anybody have a
problem with that concept? That, the Court will instruct you that
the defendant is presumed innocent. I’m going to ask you to
respond also. Does everyone agree with that? Everyone nods
affirmative. Defendant’s presumed innocence. The Court, and we
will assume if, if the Court instructs you that the defendant,
whether he’s arrested, indicted, or anything for this offense
that you should not consider that. Does anyone have any problem
with putting that out of your mind and not considering it? If the
Court tells you to.

THOMPSON: No.

* * * * * * *

THE COURT: Mr. Bolt had asked you can you give
a fair and impartial trial and let me just ask you. Can you and
I’ll ask this to all three (3) of you, can all of you set aside
any impressions that you may have received through the news media
or any opinion you may have formed? And if you become the jury
and you’re sworn to try the case, can you enter the jury box with
an open mind and can you render a verdict based solely and only
on the evidence and the law that you receive? Can you do that?
Ms. Thompson nods yes.

"A prospective juror who is biased,
prejudiced, or who ‘persists in a misapprehension of law that
will render him [or her] incapable of abiding the court’s
instructions and applying the law, must be excluded for cause’
because such a juror cannot be impartial." Griffin v.
Commonwealth
, 19 Va. App. 619, 621, 454 S.E.2d 363, 364
(1995) (quoting Sizemore v. Commonwealth, 11 Va. App. 208,
211, 397 S.E.2d 408, 410 (1990)).

It is not uncommon to discover during voir
dire that prospective jurors have preconceived notions,
opinions, or misconceptions about the criminal justice system,
criminal trials and procedure, or about the particular case. Even
though a prospective juror may hold preconceived views, opinions,
or misconceptions, the 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, 19 Va. App. at 621, 454 S.E.2d
at 364 (citation omitted).

Cressell argues that this case is controlled by
our decision in Brown, 29 Va. App. 199, 510 S.E.2d 751,
and the Supreme Court’s decision in Breeden, 217 Va. 297,
227 S.E.2d 734. We disagree. In Brown, the defendant
sought to strike three prospective jurors for cause. The holding
concerning the seating of prospective jurors one and two is
relevant to our discussion. During voir dire,
prospective juror one stated that she had been the victim of a
violent crime. In response to questions regarding whether that
experience would influence her ability to "keep an open
mind" and render a decision based on the facts of the case,
she expressed equivocation. She stated that she was not certain
that her experience would influence her decision. We held that
the juror expressed "numerous reservations about her ability
to serve impartially on the jury in light of her personal
experiences." We noted that nearly all of the juror’s
responses contained the phrases, "I think," "I
don’t know," and "I would try." A trial judge has
an opportunity to hear, observe, and assess the connotations of a
juror’s response; therefore, equivocal statements alone will not
suffice to disqualify a juror. However, "all doubts about
the fitness of a juror to serve must be resolved in favor of the
accused." Brown, 29 Va. App. at 208, 510 S.E.2d at
755.

Prospective juror two in Brown, was
Chief Counsel to the United States Secret Service and, stated
during voir dire that "[his] whole career has
been law enforcement. So [he] tend[ed] to view things from a law
enforcement perspective." He stated that he might give more
weight to an officer’s testimony. The prospective juror also
expressed his belief that it was unlikely that a case would go to
trial if the accused was not guilty. We held that the juror’s
firmly held belief and his view toward law enforcement created
"a reasonable doubt about his ability to sit impartially on
a jury." The circumstances presented in Brown are
readily distinguishable from the circumstance presented by juror
Thompson. No evidence proved that Thompson was a victim of a
violent crime, and she was unequivocal about being able to fairly
render a decision in the case. Further, she did not harbor a
firmly held personal belief about law enforcement and those who
are standing trial that would interfere with her being an
impartial juror.

In Breeden, the defendant sought to
strike a prospective juror for cause, who, during voir dire,
stated that she had read about the crime in the newspaper and
"was glad that person was caught." She also stated that
she held the view that the defendant would have to prove his
innocence. After stating those views, the Commonwealth’s Attorney
attempted to rehabilitate the juror, asking if she could follow
the court’s instructions in applying the facts to the law and
follow the court’s instructions regarding the presumption of
innocence. She stated, "Yes sir." In holding that the
trial court erred in seating the prospective juror, the Virginia
Supreme Court noted that it was not "concerned with a
possible misapprehension of law," stating that
"[j]urors are not expected to be learned in legal
maxims." Rather, the Court, considering the voir dire
of the prospective juror in its entirety, found that "her
response to that crucial question was not so much a symptom of
her ignorance of the law as a candid reflection of the state of
mind concerning [the defendant's] guilt."

Here, although Thompson initially expressed her
belief that Cressell was "probably guilty of something
because why would he be here at this far" and her belief
that if one is present during the commission of a crime and does
nothing to intervene that person is also culpable, she
subsequently stated she could set those beliefs aside if
instructed to do so by the court. She expressed no equivocation
in her ability to follow the court’s instructions and in her
ability to apply the facts to the law. Thompson also advised the
court that she had not formed any preconceived opinions about
Cressell’s guilt or innocence based on the pretrial publicity,
and she expressed no reservations regarding the defendant’s
presumption of innocence. Here, the attempts to rehabilitate
Thompson were made largely by defense counsel, not the trial
judge. But see McGill v. Commonwealth, 10
Va. App. 237, 242, 391 S.E.2d 597, 600 (1990) (holding that where
a prospective juror has been shown not to be impartial, a trial
judge may not rehabilitate the juror by merely asking persuasive,
leading questions to which the juror acquiesces). Thompson’s
initial statements about an accused’s innocence reflects "a
symptom of her ignorance of the law," not a
"reflection" of her state of mind about Cressell’s
guilt. The trial judge had the opportunity to observe Thompson’s
demeanor, to hear her responses and the connotations which she
placed upon her answers, and to better form an opinion than we
can on a cold record as to whether she had a fair, impartial, and
open state of mind. The trial judge did not abuse his discretion
in seating juror Thompson. Accordingly, we find that the trial
court did not err in refusing to strike Thompson for cause.

C. Sufficiency

Cressell argues that the evidence is
insufficient to support his conviction. He asserts that the
Commonwealth failed to prove he was directly involved in
Johnson’s death. He argues that Anderson’s testimony, which was
the only testimony remotely linking him to the crime, was
inherently incredible and unworthy of belief. Cressell asserts
that Anderson gave contradictory testimony at trial and lied to
the defense investigator.

On review of a challenge to the sufficiency of
the evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom. See Commonwealth
v. Jenkins
, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998).
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App.
133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted). In
order for a witness’ testimony to be disregarded as a matter of
law, the evidence must be inherently incredible or the witness’
account of the events must be so contrary to human experience as
to be unworthy of belief. See Owens v. Commonwealth,
186 Va. 689, 696-97, 43 S.E.2d 895, 898 (1947).

At trial, Anderson admitted she lied to the
defense investigator about whether she was in love with Ceparano,
pregnant with his child, which she aborted after the murder, and
whether she was afraid of him. She stated that she lied because
she "[knew] whose lawyers you were and what you was trying
to pull." Anderson also admitted she said in her statement
to the defense investigator that she was unsure from whom the gas
smell emanated. However, at trial, she unequivocally stated that
the gasoline smell came from Cressell. She also gave conflicting
statements and evidence concerning whether she had one drink or
two during the course of the evening.

Although Anderson made several contradictory
statements during trial and admitted having made statements to
the defense investigator, Anderson’s account of the events was
not inherently incredible, and the fact finder was entitled to
weigh this evidence in determining Anderson’s credibility and
Cressell’s guilt. See Sandoval, 20 Va. App. at 138,
455 S.E.2d at 732. Her account of the events provides a cogent
explanation for Johnson’s gruesome murder and is not incredible
as an explanation for what occurred. Moreover, defense witness
Harden corroborated Anderson’s account of the events that
transpired that evening. Both testified that the group gathered
to celebrate Harden’s birthday, all but Anderson became heavily
intoxicated, either Cressell or Ceparano removed Johnson’s watch,
Cressell and Ceparano carried Johnson outside, and both Cressell
and Ceparano were outside when Johnson was doused with gasoline
and set on fire. Both witnesses testified that they smelled
gasoline after the burning when Cressell and Ceparano returned to
the trailer, although Harden was unable to positively attribute
the odor to Cressell. Anderson’s testimony that she heard
Cressell threaten to burn Johnson on a white cross and call him a
"nigger," although not corroborated by Harden, was not
so incredible as to be unworthy of belief.

The evidence proved that Cressell, at the very
least, aided and abetted in carrying Johnson outside knowing that
Ceparano intended to kill Johnson and that he assisted in dousing
Johnson with gasoline and in burning Johnson alive. Even if
Cressell did not actually set Johnson on fire, he assisted
Ceparano in the murder. See Pugliese v. Commonwealth,
16 Va. App. 82, 93-94, 428 S.E.2d 16, 25 (1993) (stating that
"’proof that a person is present at the commission of a
crime without disapproving or opposing it, is evidence from
which, in connection with other circumstances, it is competent
for the jury to infer that he assented thereto’"). Cressell
made hostile remarks to Johnson, stating he was going to take him
outside and burn him on a cross. Cressell helped Ceparano carry
Johnson outside and across the driveway, and he smelled of
gasoline when he returned to the trailer. Finally, in statements
to the authorities, Cressell lied about his involvement in the
crime. See Rollston v. Commonwealth, 11 Va. App.
535, 548, 399 S.E.2d 823, 831 (1991) ("A defendant’s false
statements are probative to show he is trying to conceal his
guilt, and thus are evidence of his guilt.").

For the foregoing reasons, we find that the
evidence was sufficient to prove beyond a reasonable doubt that
Cressell was guilty of first degree murder. Accordingly, we
affirm.

Affirmed.

FOOTNOTES:

[1] Because the dispositive holding in Martinez-Salazar
involved a due process challenge under Fed. R. Crim. P. 23, it is
inapposite to our case.

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