Present: Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia

MARCH 4, 1997


Frederick B. Lowe, Judge

David P. Baugh for appellant.

Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Appellant, Kerri Cardanell Charity, was indicted for
burglary and credit card theft. The trial court denied his
motion to suppress identification evidence from a lineup in which
he participated. Following a jury trial, appellant was convicted
of burglary and sentenced to five years imprisonment; appellant
was found not guilty of credit card theft. Appellant contends
the trial court erred in admitting identification evidence and by
conducting voir dire itself, refusing to allow appellant’s
counsel to ask questions as provided by Code ? 8.01-358. Finding
no reversible error, a panel of this Court affirmed appellant’s
conviction. The panel granted appellant’s motion for rehearing
to reconsider whether the trial judge’s error in its conduct of
voir dire was harmless. We find no reversible error and affirm.

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I. The Identifications
An out-of-court identification is admissible if either (1)
the identification was not unduly suggestive; or (2) the
procedure was unduly suggestive, but the identification was so
reliable that there is no substantial likelihood of
misidentification. E.g., Hill v. Commonwealth, 2 Va. App. 683,
693, 347 S.E.2d 913, 918 (1986). Moreover, even if the
out-of-court identification is inadmissible, an in-court
identification may still be made if “the origin of that
identification is independent of the inadmissible out-of-court
identification procedure.” Id.
A valid lineup does not require “that all the suspects or
participants be alike in appearance and have the same
description, as long as there is nothing to single out the
accused from the rest.” Williamson v. Commonwealth, 211 Va. 57,
59, 175 S.E.2d 285, 287 (1970). The evidence supports the trial
court’s finding that the videotaped lineup, in which appellant
participated, was not unduly suggestive. Based on descriptions
given by the victims in the several cases under investigation,
the six men participating in the lineup were selected for their
height, facial features, complexion, age, hands, voice, and the
absence of facial hair. They wore identical clothing in the
lineup. Height was the only feature which significantly differed
from one man to the next. However, the men selected for the
lineup were of differing heights because of the varying

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descriptions given by the several victims, including the victim
in this case, Ashleigh Clukey. The fact that shorter men were
intermixed with two who were closer to appellant’s height is of
little import here because Ms. Clukey encountered the intruder as
he was walking up the stairs of her home, and his height appeared
to change with his ascent.
The evidence also shows that the conduct of the police was
not unduly suggestive. The police did not pressure Ms. Clukey to
identify appellant. They told her she needed to see the video
lineup, but they did not tell her it would include the
perpetrator. They told her to take her time and not to worry if
she could not identify the intruder. The police showed her
appellant’s picture only after she identified him from the video
Moreover, even if the lineup had been unduly suggestive, the
trial court properly found that Ms. Clukey’s identification of
appellant was not so unreliable as to create a substantial
likelihood of misidentification. The factors to consider in
determining reliability are: (1) the witness’ opportunity to view
the criminal at the time of the crime; (2) the witness’ degree of
attention; (3) the accuracy of the witness’ prior description of
the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between
the crime and the confrontation. E.g., Hill, 2 Va. App. at 692,
347 S.E.2d at 918 (citing Neil v. Biggers, 409 U.S. 188, 199-200

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Applying these factors to determine the reliability of Ms.
Clukey’s identification, we cannot conclude the trial court
abused its discretion in admitting the evidence. See Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (“The
admissibility of evidence is within the broad discretion of the
trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion.”). Ms. Clukey observed the
intruder for seventeen seconds and came within ten feet of him as
he walked up the stairs toward her. She could see his face
clearly and ascertain his facial features because the outside
porch light was on at the bottom of the steps and the bathroom
light was on at the top of the stairway.
Ms. Clukey’s identification of the intruder at trial was the
same as the identification she gave to the police at the time of
the crime, except she first reported the intruder wore a hat.
This discrepancy is of insufficient import to require suppression
of the identification. Ms. Clukey’s ability to distinguish one
suspect from another was clearly established. She correctly
found that appellant was not among those in the photo lineup
presented to her shortly after the incident. At both the trial
and the lineup, Ms. Clukey positively identified appellant as the
intruder. She identified him both wearing and not wearing a
baseball cap. Approximately seven months elapsed between the
crime and the lineup and another five elapsed before trial.

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Under the facts of this case, neither period represents an
interval of such length that Ms. Clukey’s identification
testimony can be deemed unreliable as a matter of law.
Appellant also argues that Ms. Clukey’s in-court
identification should not have been admitted because it was
tainted by the conduct of the police, who showed her a photo of
appellant, bald-headed, after she identified him in the lineup
video and after she indicated she could not recall whether he was
wearing a cap. This Court has applied the same two-part test set
forth above to determine whether to suppress an in-court
identification. E.g., Doan v. Commonwealth, 15 Va. App. 87,
95-96, 422 S.E.2d 398, 402-03 (1992). Thus, the showing of the
photo must have been so unduly suggestive as to render Ms.
Clukey’s in-court identification so unreliable as to raise a
substantial likelihood that she misidentified appellant.
To support his position, appellant argues that Ms. Clukey’s
in-court identification was unreliable because: (1) she did not
describe the intruder as bald until seeing the photo showing
appellant without hair; (2) she testified at trial that the
intruder had little hair, at least none sticking out from his
hood; and (3) because, after seeing the photo of appellant
without a hat, she was unable to recall the hat she said the
intruder wore. We disagree with appellant’s contentions.
The trial court did not abuse its discretion by admitting
Ms. Clukey’s in-court identification. Ms. Clukey’s inability to

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recall whether the intruder wore a cap is the only significant
inconsistency which exists between her early identification and
her in-court testimony. Ms. Clukey identified appellant both at
the lineup, when he was wearing a cap, and in the photo, when he
was bald-headed. Moreover, her report to the police that the
intruder wore a hood and a cap is not significantly inconsistent
with her testimony at trial that the intruder had little hair, at
least none visible to her.
II. The Voir Dire
The parties do not dispute that the trial court’s failure to
allow appellant’s counsel to ask voir dire questions of the
prospective jurors was a clear deviation from the mandate of Code
? 8.01-358.1 That such a deviation is an abuse of discretion is

1Code ? 8.01-358 provides:

The court and counsel for either party
shall have the right to examine under oath
any person who is called as a juror therein
and shall have the right to ask such person
or juror directly any relevant question to
ascertain whether he is related to either
party, or has any interest in the cause, or
has expressed or formed any opinion, or is
sensible of any bias or prejudice therein;
and the party objecting to any juror may
introduce any competent evidence in support

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beyond cavil. It remains only to determine whether that error
was harmless.
Upon rehearing, appellant contends that the Commonwealth
bears the burden of proving harmless error and that, in our
initial opinion, we applied the wrong standard in determining
whether the error was harmless. We disagree. We did not deviate
from the well established principles governing appellate review
of trial court errors. Nonetheless, in the interest of clarity,
upon rehearing, we can further explain our ruling.
Counsel conducted voir dire is a statutory, not a
constitutional, right. See Tuggle v. Commonwealth, 228 Va. 493,
504, 323 S.E.2d 539, 546 (1984), vacated on other grounds, 471
U.S. 1096 (1985); Turner v. Commonwealth, 221 Va. 513, 521, 273
S.E.2d 36, 41 (1980), rev’d on other grounds, 476 U.S. 28
(1986).2 Thus, we are required to address the trial court’s
error in this case by applying the legal standard for determining
of the objection; and if it shall appear to
the court that the juror does not stand
indifferent in the cause, another shall be
drawn or called and placed in his stead for
the trial of that case. . . .
2Moreover, appellant did not raise a constitutional claim
below and is, therefore, barred from raising such a claim on
appeal. Rule 5A:18; Jacques v Commonwealth, 12 Va. App. 591,
593, 405 S.E.2d 630, 631 (1991); Swann v. Commonwealth, 247 Va.
222, 229, 441 S.E.2d 195, 201, cert. denied, 115 S. Ct. 234

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when non-constitutional error is harmless.
Non-constitutional error is harmless
[w]hen it plainly appears from the record and
the evidence given at the trial that the
parties have had a fair trial on the merits
and substantial justice has been reached.
Code ? 8.01-678; see Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc); Walker v.
Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926). To
determine whether an error is harmless, this Court “must review
the record and the evidence and evaluate the effect the error may
have had on how the finder of fact resolved the contested
issues.” Lavinder, 12 Va. App. at 1007, 407 S.E.2d at 912. “An
error does not affect a verdict if a reviewing court can
conclude, without usurping the jury’s fact finding function,
that, had the error not occurred, the verdict would have been the
same.” Id. at 1005, 407 S.E.2d at 911. Allocating the risk of
non-persuasion, e.g., the burden of proof, is not necessary to
our analysis in this case. Such a consideration becomes relevant
only where the appellate court finds the matter “so evenly
balanced that [it] feels . . . in virtual equipoise as to the
harmlessness of the error.” O’Neal v. McAninch, __ U.S. __, __,
115 S. Ct. 992, 994 (1995). We find no such circumstances here.
We conclude that the verdict in this case would have been
the same notwithstanding the trial court’s error, because we find
the record plainly shows that appellant received a fair trial and
that substantial justice was reached. See Lavinder, 12 Va. App.

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at 1005, 407 S.E.2d at 911. The record affirmatively establishes
that appellant was tried by an impartial jury. It is undisputed
that each person on the panel of twenty from which the ultimate
jury was selected was free from exception.
Although the court refused to allow appellant’s counsel to
ask the prospective jurors questions directly, it gave
appellant’s counsel the opportunity to submit voir dire questions
for the court to ask. Counsel stated that he had not formulated
specific questions but asserted that his questions would address
whether a prospective juror had any “disagreement [with] or bias
against” the law governing the burden of proof, the presumption
of innocence or the possession of stolen property, and whether a
prospective juror would credit the testimony of police officers
over that of other witnesses or was predisposed to believe
eyewitness testimony. The court offered appellant’s counsel a
recess to write specific questions to submit to the court. In
conducting voir dire, the court questioned prospective jurors on
each of the matters appellant’s counsel raised. Counsel did not
proffer any questions that were not asked, and he did not submit
any follow-up questions to those the court did ask.
Clearly, the court failed to follow the mandate of Code
? 8.01-358.3 However, it plainly appears from the record that

3Appellant characterizes the trial court’s error in this
case as, inter alia, “intentional,” “blatant,” “arbitrary,” and
even “bizarre.” Admittedly, the error in this case is troubling,
not simply because it denied appellant’s statutory right to
counsel-conducted voir dire, but also because it may have been
committed in deliberate disregard of a known statutory directive.

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this error did not affect the questions propounded to the
prospective jurors, the selection or composition of the jury
panel or its partiality. Thus, we conclude that the record
plainly shows that the erroneous, non-constitutional ruling did
not deprive appellant of a fair trial or substantial justice and,
therefore, that it plainly did not affect the verdict.
Accordingly, appellant’s conviction is affirmed.
See Canons 2(A), 3(A)(1), Canons of Judicial Conduct for the
State of Virginia. Our review, however, is limited to addressing
the effect of the error on the case at bar, not the trial judge’s
reasoning, state of mind or knowledge when making the error.

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Bray, J., concurring.

While I concur in the result expressed in the majority
opinion, I take exception to the inclusion of n.3.
Notwithstanding the hyperbole of appellant’s able counsel, I find
nothing in the record which either requires or justifies
reference in the opinion to the Canons of Judicial Conduct.
Similarly, I am constrained to also except to the
dissenter’s conclusion that the “Virginia Beach practice” of
conducting voir dire “appears from the record.” The procedure on
voir dire which pertained in the subject trial is the only issue
on appeal, not the judicial customs of the city. Moreover, in
the colloquy between appellant’s counsel and the court, the court
repeatedly referenced itself in the first person, clearly not
implicating the entire Second Judicial Circuit of Virginia.

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Elder, J., dissenting.
I respectfully dissent from Part II of the majority opinion
and would hold that the trial court committed reversible error in
refusing to allow counsel-conducted voir dire.
In 1981, the General Assembly amended Code ? 8.01-358 to
specifically grant attorneys the right to voir dire the venire.
The Legislature’s action was in response to the Supreme Court of
Virginia’s decision in Turner v. Commonwealth, 221 Va. 513, 521,
273 S.E.2d 36, 41 (1980), cert. denied, 451 U.S. 1011 (1981),
where the Court held that a defendant “has no constitutional
right to counsel-conducted voir dire.” While the amendment did
not create a constitutional right, as the majority recognizes, it
did create a statutory right which the trial court admittedly
It appears from the record that the Virginia Beach practice
involves “the court doing voir dire” of potential jurors.4 The
statutory right to counsel-conducted voir dire was called to the
trial court’s attention on several occasions. The trial judge
responded that he would not allow counsel to ask the questions
and stated, “That’s what I’ve always done, and that’s what I’m
going to do.” The majority acknowledges “[t]hat such a deviation
is an abuse of discretion is beyond cavil.” To affirm this case
under these circumstances is to send a signal that the judges of

4See exchange between the trial judge and trial counsel from
the trial transcript as reflected in Appendix I attached hereto.

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an entire judicial circuit may ignore the mandate of a statute
with impunity and without concern for reversal upon appellate
As the Supreme Court stated in Turner, “[i]n the absence of
a statute or court rule to the contrary, as long as the selection
procedure results in a fair and impartial jury, the manner in
which a jury is to be selected is properly within the trial
court’s sound discretion.” Id. at 522, 273 S.E.2d at 41
(emphasis added). The amendment to Code ? 8.01-358 removed the
trial court’s discretion to conduct jury selection without
affording counsel the right to participate in voir dire. In this
case, the trial court knowingly and purposefully refused to
follow the Legislature’s mandate and therefore committed
reversible error. See People v. McClellan, 331 N.E.2d 292, 298
(Ill. App. Ct. 1975) (stating that where a statute or rule
provides for counsel-conducted voir dire, “no trial judge should
totally prohibit direct questioning of prospective jurors by the
parties or their attorneys”), cert. denied, 425 U.S. 950 (1976);
47 Am. Jur. 2d Jury ? 200, at 881 (1995) (“Where, under a local
court rule, it is the duty of all trial judges to . . . allow the
parties or their attorneys a reasonable opportunity to supplement
[voir dire] examination, no trial judge should totally prohibit
direct questioning of prospective jurors by the parties or their
I agree that under normal circumstances, non-constitutional

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error is harmless if it plainly appears from the record that the
error did not affect the verdict. Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). This
case, however, defies harmless error analysis. The record in a
case such as this could never demonstrate juror bias or prejudice
affecting the trial’s outcome. Appellant’s counsel was given the
opportunity to submit questions to the trial court, and all
questions proffered by counsel were asked. Additionally,
appellant’s counsel failed to propose follow-up questions to be
asked by the trial court. However, none of these facts proves a
lack of harm or prejudice to appellant. At the heart of an
attorney’s right to voir dire the venire is the attorney’s
well-founded desire to engage in one-on-one interaction with a
potential juror, and thereby to personally analyze all of the
attendant variables inherent in such an interaction.5 These

5For example, the National Jury Project, in its treatise
Jurywork: Systematic Techniques, stated:

A judge’s role as authority figure in the
courtroom exacerbates the [courtroom’s
intimidating atmosphere], because many
prospective jurors are afraid to say anything
that might displease the judge.
The task of the lawyer conducting the
voir dire is to create an atmosphere that
encourages honest and straightforward answers
that reveal the prospective juror’s
personality, experiences, and attitudes.
This can be done by establishing a
relationship with prospective jurors that
conveys an attitude of respect and
recognition of them as individuals. . . .
The attorney’s tone of voice and
demeanor is an important determinant of the
kind of relationship she or he will have with

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unquantifiable and indeterminate variables will rarely, if ever,
be revealed in the record, and I see no way that counsel can make
such variables known to the trial court in the form of an
objection or proffer.
“[T]he Legislature implicitly recognized the advantage to
counsel conducted voir dire.” Lankford v. Foster, 546 F. Supp.
241, 247 (W.D. Va. 1982), aff’d, 716 F.2d 896 (4th. Cir. 1983),
cert. denied, 467 U.S. 1214 (1984). “The influence of the voir
dire process may persist through the whole course of the trial
proceedings.” Ford v. Norris, 67 F.3d 162, 171 (8th Cir. 1995).
In this case, because the trial court knowingly and purposefully
ignored the mandate of Code ? 8.01-358, it abused its discretion
and committed reversible error. I would therefore reverse the
conviction and remand for further proceedings if the Commonwealth
be so advised.
prospective jurors.

National Jury Project, Jurywork: Systematic Techniques Vol. 2,
at 17-13, 17-14 (Elissa Krauss & Beth Bonora eds. 1995).

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THE COURT: All right. Are we ready to proceed in the
Charity matter?

MR. BAUGH: Your Honor, there’s one matter. It’s been about
three years since I tried a case in the Beach, and I was reminded
this morning by Mrs. Pritchard the local practice involves the
court doing voir dire. Of course, the statute permits the
defendant through his counsel to conduct his own voir dire. We
would expect our right to conduct our own voir dire in the
presence of the jury.

THE COURT: Well, what I normally do and what I will do in
this case is allow counsel any relevant or pertinent questions it
may —

MR. BAUGH: I can tell the court so we don’t do it in the
presence of the jury, the majority of my — all my voir dire
questions will revolve around whether or not jurors have any
disagreement or bias against — concerning burden of proof,
presumption of innocence, testimony of police officers over
nonpolice officers, automatically be predisposed to believe the
testimony of an eyewitness, whether or not they disagree with the
law of possession.

MRS. PRITCHARD: Your Honor, number one, I’d like to go
through the — I have my questions. I’ve provided copies to Mr.

THE COURT: I’ll need copies of some — they don’t have to
be typed necessarily, Mr. Baugh. You can write them out in
longhand. I’ll need to go through the questions and see.

MR. BAUGH: Your Honor, I have not prepared the exact
questions. I have the topics. I do not know what the exact
questions will be until I ask them under the statute.

MRS. PRITCHARD: Your Honor —

THE COURT: I’m going to ask the questions. That’s what
I’ve always done, and that’s what I’m going to do; but I will ask
whatever questions you desire to have asked.

MR. BAUGH: Then, Your Honor — then please note our
exception. The statute — I would ask the court for any
authority which permits — which denies the defendant his right
to do voir dire.

THE COURT: I will note your objection and exception to the

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court’s ruling for the record and will note that, of course, the
court will ask any question that you desire to have asked that is
relevant to jury selection.

MRS. PRITCHARD: Your Honor —

MR. BAUGH: Excuse me. Are you telling me that you are not
going to follow the statute?

THE COURT: I’m telling you that I’m going to ask the

MR. BAUGH: No, you’re not. The statute says specifically
the defendant may ask his questions; and I’m asking the court are
you telling me categorically you are not going to follow the

THE COURT: I am telling you that I will ask any question
that you wish to have asked if the questions are written out and
presented to the court.

MR. BAUGH: Then, Your Honor, we’re going to need a recess
while we prepare for this extraordinary departure from Virginia

THE COURT: All right, sir. I’ll take a recess and give you
time to jot down your questions.

MR. BAUGH: Thank you. Your Honor, if I could ask you, are
there any other laws that Virginia Beach follows that the
Commonwealth of Virginia has never heard of?