Allen v. Commonwealth

MARION KENNETH ALLEN, JR. v. COMMONWEALTH OF VIRGINIA

Record No. 1117-14-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 3, 2015

UNPUBLISHED

Present: Judges Humphreys, Russell and AtLee

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Robert J. Smith, Judge

Joseph B. Dailey (Law Office of Joseph B. Dailey, PLLC, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

A Fairfax County jury convicted Marion Kenneth Allen, Jr. ("appellant") of robbery and use of a firearm to commit that robbery. He contends: (1) the trial court erred in denying his motion to strike a prospective juror for cause, and (2) the jury erred in finding the evidence sufficient to convict him. We disagree and affirm.

I. BACKGROUND

On appeal, we review evidence in the light most favorable to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). In doing so, we "'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)).

Additionally, "an appellate court's 'examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.'" Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). Instead, we "'must consider all the evidence admitted at trial that is contained in the record.'" Id. (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586).

So viewed, the evidence showed that on April 29, 2013, appellant traveled from Maryland to Virginia, with his cousin and two other people, to meet a juvenile ("the victim"). The victim had exchanged Facebook messages with one of the passengers, Xavier Hall, and had arranged to trade a pair of shoes and a phone to Hall in exchange for money and marijuana. Hall and the victim had agreed to meet at a Taco Bell in a shopping center in Annandale, Virginia.

That night, appellant's cousin drove his extended cab pickup truck into the restaurant parking lot, and the victim got into the front passenger seat. Initially the victim saw only the driver, who began driving toward an alley behind one of the nearby businesses. The victim, who was facing forward, then "felt someone grab both [his] arms" at the elbows with two hands. While his arms were being held, the victim "felt someone tap something on [his] head." The victim "turned around really quickly" and saw "a really long black tube." The victim "believed [the tube] was a gun" because he later heard "a pumping sound." Someone in the backseat took the victim's phone and a pocketknife out of his pants pockets. The victim then was instructed to take off his watch, his shoes, and his pants.

Once the truck reached the alley, the driver turned off the headlights and continued driving. A police officer who was patrolling the area noticed the truck driving without headlights and pulled it over. The victim testified that when the officer "turned on the [patrol car's] lights," the two hands that had been securing the victim released their grip. The officer approached the driver and asked for everyone's identification. The officer could see the driver,the victim, and a third person with dreadlocks (appellant) seated "in the backseat of the truck behind the passenger." The officer then noticed that the victim "was much younger than the driver and the passenger." When the officer looked at the victim, "he appeared to be extremely nervous," and he "made a gesture with his mouth" as if "he was trying to tell [the officer] something without letting the other people in the vehicle know." The officer then knew that "there was something wrong." He instructed the backup unit to watch the other individuals in the vehicle and told the victim to leave the truck. The victim got out of the truck and told the officer "that [he] was getting robbed for [his] shoes and that they ha[d] a gun."

All the officers on the scene then "retreat[ed] back to an area behind cover" in order to "initiate a felony traffic stop" by "order[ing] all the remaining occupants out of the car at gunpoint." The first person to exit the truck was a man lying "on the back floorboard behind the driver," whose presence was previously unknown to the officers. This man was "ducking between the seats" and "lying on top of the gun." The driver and appellant (who was seated in the rear passenger-side seat) were ordered out of the truck as well. When officers approached the vehicle to confirm there was no one else in the truck, one of the officers discovered Hall lying under some clothing in the truck's bed. Officers discovered a shotgun on the floor of the backseat of the truck. They also found three unspent shotgun shells in the pocket of the man that had been ducking between the seats on top of the gun. Finally, the victim's pocketknife and phone were found on the rear passenger-side seat where appellant had been sitting.

Appellant testified that he was in the truck because he had asked his cousin earlier in the day to give him a ride to sell his iPad. Appellant also testified that he had asked his sister for a sleeping pill that evening because he was starting a new job the next day. Appellant took the sleeping pill "around 6:00, 6:30ish," and appellant's cousin picked him up soon after. After appellant sold his iPad, his cousin "said he was bored and he didn't want to go in the house yet."His cousin then called Hall, who in turn asked appellant's cousin to pick him and another friend up so they could "buy some shoes." Appellant believed they were going to stay in Maryland.

Appellant claimed that he fell asleep as his cousin drove to pick up Hall and Hall's friend. Appellant alleged that he "was in and out of sleep the whole time [he] was in the car," awakening at one point to smoke marijuana near a park, and at another point to make a purchase at a gas station. Appellant claimed that he then fell back to sleep and did not awaken until "somebody shook [his] leg" after the officer pulled them over in the alley in Virginia. Appellant claimed not to know what state he was in when he was shaken awake. Appellant testified that he only saw the victim sitting in front of him when he woke up and that he never touched the victim. Appellant also denied touching the phone or pocketknife that were removed from the victim's pockets and found lying on the edge of appellant's seat. Appellant admitted to a previous felony conviction of a crime of moral turpitude.

At the conclusion of the Commonwealth's case-in-chief, appellant moved to strike the evidence as insufficient as a matter of law, and renewed his motion at the conclusion of his own case. The trial court denied both motions. After the trial court denied appellant's renewed motion to strike, however, the Commonwealth called a detective as a rebuttal witness. This detective had interviewed appellant at the police station shortly after the robbery. The detective testified that during the interview, appellant had "stated he was in Virginia" and had said "[h]e went to several gas stations" during the trip from Maryland to Virginia. Appellant made no additional motion to strike following the testimony of the Commonwealth's rebuttal witness. The jury convicted appellant of robbery and use of a firearm in the commission of the robbery. Appellant never moved to set aside the jury's verdict.

II. ANALYSIS

A. Jury Selection

Appellant first argues that the trial court erred in denying his motion to strike, for cause, a member of the venire ("the prospective juror") because the prospective juror was "having difficulty presuming [appellant] to be innocent."¹ Appellant's Brief at 2.

At the beginning of voir dire, the trial judge asked the venire whether any of them had "expressed or formed any opinion as to the innocence or guilt of [appellant]." The prospective juror answered, "No." The prospective juror also affirmed that she did not "know any reason whatsoever why [she] cannot give a fair and impartial trial to the Commonwealth of Virginia and to [appellant] based solely on the law and the evidence" and that she understood that "[appellant] is presumed innocent." She additionally affirmed for the Commonwealth that she "agree[d] to follow the law and make [her] decision based upon the law," whether she liked the law or not.

Later during voir dire, appellant's attorney asked: "Any of you feel that just because he was charged with something there's going to be something in the back of your head in being [sic], 'Well, we wouldn't be here if there wasn't some reason why he's here?'" The prospective juror stated: "Well, I have to admit that's kind of going through my head . . . ." Appellant's attorney further stated "you must assume that my client is innocent" until the Commonwealth "meet[s] their burden." Appellant's attorney then questioned the prospective juror again: "Now,thinking about that do you still think you would have that presumption in the back of your head that he must be here for a reason?" The prospective juror replied: "Well, I guess I sort of do. I'm sorry, I mean, I have to be honest that I—yeah."

The trial judge then interjected: "'The fact that Mr. Allen has been indicted is on trial—and is on trial is absolutely no indication of his guilt.' Now, that I've told you the law does that help you with this idea that you have about him being here?" The prospective juror replied: "Yeah, that helps." The trial judge then restated that appellant was "presumed innocent at this point" and asked whether the prospective juror could "set aside that concept that as [appellan...