TAYLOR v. COMMONWEALTH
JUNE 17, 1997
Record No. 0377-96-1
BILLY LEE TAYLOR
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE ROSEMARIE ANNUNZIATA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
Sterling H. Weaver, Sr., for appellant.
John H. McLees, Jr., Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Appellant, Billy Lee Taylor, was convicted by a jury of second
degree murder and a related firearm charge. On appeal, he
contends the trial court erred in refusing to grant a mistrial
based on a juror’s delayed response to a voir dire
question. Finding no error, we affirm his convictions.
During voir dire, the trial court asked
prospective jurors, "Have any of you ever been the victim or
have any members of your immediate family ever been the victim of
a violent crime?" Juror Clements did not respond. Following
the exercise of peremptory challenges, Clements was included as a
jury member. After impanelment and opening statements, but before
evidence was presented, the court recessed for lunch. Upon
reconvening, Clements revealed that she had not disclosed during voir
dire that her husband had been held up at gunpoint earlier
that year. Clements reiterated the inadvertence of her
nondisclosure and stated her belief that she could try the case
at bar on the basis of the evidence presented.
Appellant’s counsel asked no questions of Clements but
requested a mistrial, stating
I doubt very seriously if there would have been grounds to
strike her for cause, I think you probably would have allowed
her to stay on the panel, but that would have been
information that only she could have provided to us that
would have been valuable to us in determining whether or not
we wanted to exercise a strike to remove her from the panel.
We now are at the point where we’ve exhausted all of our
strikes, the jury has been selected and seated and now this
information comes to bear; and I can tell the Court that with
someone who’d been, someone who had a family member, a
husband who’d been robbed at gunpoint within the last six
months and with the assailant not being apprehended, I would
have, on behalf of my client, exercised a strike to remove
that person from the panel, not because I would have felt
that the person would have been biased or prejudiced either
in favor of the Commonwealth or the defendant, but because
those life experiences may have in some way filtered over
into her decision-making process here today.
I am now without the ability to do that. The only way I
can get the ability to select a jury based on the information
from the questioning being given properly is that that
information is given before I have the opportunity to use up
my strikes. That being passed, I would ask that the Court
grant a mistrial.
The court found that Clements had not intentionally withheld
the information and that "she honestly believe[d] and
demonstrated that [the incident would] not interfere with her
judgment." The court denied appellant’s motion for mistrial,
finding that going forward would not prejudice appellant.
We address the issue whether Clements’ failure to give a
timely response to the voir dire question
prejudiced appellant’s right of peremptory challenge such that
the trial court erred in refusing to grant a mistrial.
"`On appeal the denial of a motion for a mistrial will not
be overruled unless there exists a manifest probability that the
denial of a mistrial was prejudicial.’" Bottoms v.
Commonwealth, 22 Va. App. 378, 385, 470 S.E.2d 153, 157
(1996) (citation omitted).
While the issue presented in this case has not been addressed
in Virginia, it was settled by the United States Supreme Court in
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984). See also Zerka v. Green, 49 F.3d 1181 (6th
Cir. 1995); United States v. Edmond, 43 F.3d 472 (9th Cir.
1994); Rasmussen v. Sharapata, 895 P.2d 391 (Utah Ct. App.
1995). But see State v. Scher, 650 A.2d 1012,
1018-21 (N.J. Super. Ct. App. Div. 1994).
The McDonough Court evaluated whether the trial court
abused its discretion in refusing to grant a new trial when it
learned that a juror had failed to respond affirmatively to a voir
dire question. The Court premised its analysis on harmless
error principles, which the Court found to reflect "the
practical necessities of judicial management." 464 U.S. at
In that light, the Court found that "it ill serves the
important end of finality to wipe the slate clean simply to
recreate the peremptory challenge process because counsel lacked
an item of information which objectively he should have obtained
from a juror on voir dire examination." Id.
at 555. Thus, the Court adopted the following rule:
to obtain a new trial in such a situation, a party must
first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then
further show that a correct response would have provided a
valid basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons that
affect a juror’s impartiality can truly be said to affect the
fairness of a trial. Id. at 556.
Applying the McDonough analytical model here, we hold
that the trial court did not abuse its discretion in refusing to
grant a mistrial. Notwithstanding Clements’ failure to respond
timely to the question propounded during voir dire,
there was no dispute at trial that she stood indifferent to the
cause. Because there was no basis for a challenge for cause,
Clements’ presence on the jury did not affect the essential
fairness of the trial, notwithstanding the impairment to
appellant’s right of peremptory challenge. Thus, we find no
manifest probability that the denial of appellant’s motion for a
mistrial was prejudicial.
Accordingly, the decision of the trial court is affirmed.
In a conference room out of the jury’s presence but in the
presence of appellant and the attorneys for both parties, the
following colloquy transpired between the court and juror
COURT: Okay. Miss Clements, we’re back here in my
chambers. I understand the Bailiff tells me that you have
remembered that you husband had been the victim of a violent
crime, is that right?
JUROR: Well, you know, when you said violent crime, it
didn’t really register and, you know what I mean, he was held
COURT: At gunpoint?
COURT: When was that?
JUROR: You know what, I can’t — This is awful. It was
either the spring or the early summer.
COURT: This year?
JUROR: This year.
COURT: Was there a trial?
JUROR: No, no.
COURT: Never had to go to court or anything like that?
JUROR: No, sir.
COURT: Well, the question, you know, I’ve asked others is
that do you think that that experience would in any way
prevent you from trying this case, listening to the evidence
and making a decision in this case without being affected,
prejudiced in any way by the experience your husband had?
JUROR: I wouldn’t think so. Now, I’m saying I wouldn’t
think so in the respect that I didn’t even remember it, I
really didn’t, and I said I’ve got to tell somebody because I
got real nervous about it after I remembered it.
COURT: I think it’s appropriate —
JUROR: I didn’t mean to do this, I really didn’t. I’m so
COURT: Do you think then it would in some way affect you
ability to make a decision based on the evidence you hear in
court or not?
JUROR: I’m trying to be as objective as I know how and I
don’t think it would because I don’t think that it would
affect my judgment.
COURT: Okay. You think that you could put that out of your
mind, do you?
JUROR: I’m trying, now that I remember — I know this
sounds terrible and I hate to do this to you worse than
anything in the world —
COURT: That’s all right. I want you to be honest and
JUROR: It made me real nervous, scared me.
COURT: I understand that. Don’t be afraid because we
understand. What I want to know now, though, is now that
you’ve remembered it, do you believe you could try this case
today and the next couple of days and render a verdict based
only on the law and the evidence that you hear in this case
without in any way being affected by the experience or the
knowledge that your husband had this experience?
Are you having some trouble? You’re hesitating.
JUROR: Yes, I am, and that’s why; it scared me to death,
it really did.
COURT: What scared you to death.
JUROR: It scared me it didn’t come to my mind and then
when I thought about it I said Oh, my Lord. Then when I
started thinking about it, the more I thought about it —
COURT: The more you thought about the incident, you mean?
COURT: The more you thought about it, what?
JUROR: That I’m trying, I’m going to be as objective, use
my own judgment.
COURT: You mean you can use your own judgment without
being affected by the knowledge that your husband was held
up, is that right?
JUROR: Yes, sir. I’m — I feel terrible about this, I
COURT: Stop worrying about that now, about the fact that
you didn’t tell us. That’s neither here nor there right now.
What I want to know is —
JUROR: Whether I can do this right?
COURT: You can do this without having that interfere with
JUROR: To the best of my ability, I’ll do the best I can.
COURT: I know you will, but do you think you can put that
out of your mind and try this case just on the evidence that
you hear in this courtroom?
JUROR: Yes, sir, I think I can.
The thrust of appellant’s argument on brief is that Clements’
disclosure established that she was unable to stand indifferent
to the cause and that the trial court, therefore, erred in
refusing to grant a mistrial. Appellant did not raise this
argument at trial, where he stated his belief that Clements was
not subject to a strike for cause. To the extent appellant now
argues that Clements should have been stricken for cause, his
contention is procedurally barred. Rule 5A:18.
This Court has long held that "[a litigant] is entitled to a
fair trial but not a perfect one, for there are no perfect
trials." . . . We have also come a long way from the time
when all trial error was presumed prejudicial and reviewing
courts were considered "citadels of technicality." The
harmless error rules adopted by the Court and Congress embody the
principle that courts should exercise judgment in preference to
the automatic reversal for "error" and ignore errors
that do not affect the essential fairness of the trial. McDonough,
464 U.S. at 553 (citations omitted).