Bustos v. Commonwealth

RODOLFO BUSTOS v. COMMONWEALTH OF VIRGINIA

Record No. 1880-18-4

COURT OF APPEALS OF VIRGINIA

DECEMBER 27, 2019

UNPUBLISHED

Present: Judges Huff, AtLee and Malveaux

Argued at Fredericksburg, Virginia

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

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Richard E. Gardiner, Judge

Kathryn C. Donoghue, Senior Assistant Public Defender, for appellant.

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

Following a jury trial in the Circuit Court of Fairfax County, Rodolfo Bustos was convicted of two counts of forcible sodomy in violation of Code § 18.2-67.1 and three counts of crimes against nature in violation of Code § 18.2-361. Bustos appeals his convictions arguing that the trial court erred in denying his motion to strike a juror for cause and by granting, or declining to add additional language to, the model geriatric parole instruction. For the following reasons, we affirm the ruling of the trial court.

I. BACKGROUND

A. Voir Dire

Bustos was tried in a three-day jury trial. Voir dire began on the first day of trial with the trial court explaining the charges and questioning the jurors. The trial court asked the jurors standard questions about whether they understood that the defendant is presumed innocent, thatthe Commonwealth must prove the defendant's guilt beyond a reasonable doubt, and that the defendant is not required to produce any evidence. All of the prospective jurors answered affirmatively. All of the prospective jurors answered no when asked if they were "aware of any bias or prejudice" they might have for or against the Commonwealth or defendant. And all of the jurors affirmed that they understood that "the fact . . . that a person has been charged or accused by the Commonwealth is not evidence against him."

When the trial court was finished with its questions, the Commonwealth conducted its voir dire. The Commonwealth asked questions about the jurors' occupations, whether they could follow the instructions provided, and if they or someone close to them had personal experience with sexual abuse. The Commonwealth explained it was trying to ensure the jurors could be "fair and impartial" and asked a catchall question of whether anyone had thought of anything the Commonwealth needed to know that may hinder their impartiality or otherwise affect their ability to serve.

Bustos then had his turn to ask questions of the venire. His attorney introduced herself and stated that she had "the privilege of representing Rudolfo Bustos." She asked questions of individual jurors before asking if any of the jurors felt that "it's hard not to think that Mr. Bustos must have done something wrong?" Juror 8 raised her hand. Defense counsel asked how she was feeling, and Juror 8 responded,

Well, I think a lot of it has to do with my background . . . as a teacher and dealing with several students in my past who have gone through, you know, similar situations and have been placed out of their homes in foster care and seeing what's happened to them as they become adults.

And then sitting here, you know, thinking about all the instructions that we've had, knowing what we're charged with doing as a jury, when you stood up and said, "I have the privilege of representing [Bustos]" . . . something inside me just went, "privilege?"

. . . You know, and I didn't even realize I was thinking that until those words came out, and it was like, "Why would you consider that?" So, part of me is already thinking one way.

Defense counsel asked Juror 8 why she thought it would not be a privilege to represent Bustos. Juror 8 responded, "I think because in my mind I'm already thinking that there is a level of guilt."

In response to further questioning, Juror 8 agreed that she would probably be thinking of the effect sexual abuse had on the lives of her former students. Defense counsel concluded her questioning of Juror 8 by asking, "And so, is it fair to say that at this point you believe that there's probably something that Mr. Bustos did that was wrong or illegal? Is that fair to say?" Juror 8 answered, "Yes."¹

The trial court allowed the Commonwealth to ask more questions. The following exchange occurred:

[Commonwealth]: Now, does everyone understand - and Judge Gardiner talked at the beginning about what the presumption of innocence is. And that basically means that the Defendant until the end of the trial is presumed to be innocent.

So, if all of you had to take a vote right now, if you were asked to actually go deliberate right now, you would all have to vote not guilty because you haven't heard any evidence, you haven't heard anything to convince you beyond a reasonable doubt.

Does everyone agree with that?

The jury panel: Yes.

[Commonwealth]: Okay. So, despite, I guess, anyone's personal feelings or questions, does everyone agree that right now Mr. Bustos has the presumption of innocence?

The jury panel: (Nodding heads.)

[Commonwealth]: Is that a yes?

The jury panel: Yes.

The Commonwealth also directed a number of questions specifically to those jurors who had raised concerns to defense counsel, including Juror 8. The Commonwealth asked, "[D]o you understand that you decide this case based on what the evidence is in the courtroom?" and "What the witnesses say against the Defendant, what any other pieces of evidence you have, but only if you're convinced beyond a reasonable doubt of the elements of the offense do you vote to convict, do you vote for guilty; do you understand that?" The Commonwealth also asked if Juror 8 could agree that being charged is not evidence and that she would judge the case based on the evidence that is put forward. Juror 8 answered affirmatively to each question.

The trial court permitted defense counsel to ask additional follow up questions. The following exchange occurred:

[Defense counsel]: [Juror 8], you mentioned that you - in the back of your mind the first thing that you thought of when I said, "I have the privilege to represent Mr. Bustos," was that that was surprising to you. And that was kind of a gut reaction.

[Juror 8]: Right.

[Defense counsel]: And it still might be hard for you to understand; is that accurate?

[Juror 8]: Right.

[Defense Counsel]: Okay. Even though the Prosecutor has told you that there are going to be legal instructions that you're going to be supposed to follow.

[Juror 8]: Right.

[Defense counsel]: It sounds like there's sort of a firmly held belief in the back of your head that somebody who is charged with a serious crime like this is likely going to be guilty because of the fact that someone is accusing him of such a serious crime; is that accurate?

[Juror 8]: No, I don't - I don't have a firmly held belief that -

[Defense counsel]: Okay.

[Juror 8]: - because someone is charged with a crime they are guilty.

I mean, I also know of situations, similar situations where my colleagues have been - or teachers have been accused of sexual abuse and it's not been founded.

But I do feel that you're not charged with something if there isn't some sort of evidence to charge you. You know what I mean?

[Defense counsel]: Okay, so at this stage you already think that there must be evidence against Mr. Bustos?

[Juror 8]: Whether that means he's guilty or not, I don't know, but I'm assuming there's some sort of evidence that -

[Defense counsel]: Okay.

[Juror 8]: - we will hear about.

[Defense counsel]: And at this stage it's your opinion that he is probably guilty of something?

[Juror 8]: Not necessarily.

After this exchange, defense counsel questioned another juror before returning to Juror 8. The following exchange occurred:

[Defense counsel]: And, [Juror 8], do you feel that way, too? If he chose not to testify, do you think that means he's guilty?

[Juror 8]: Not necessarily. It would depend on what other evidence you all were able to present to us, too. I mean, I know there's reasons why people are not advised to testify. . . . So, I would hear the other evidence that was presented.

[Defense counsel]: So, you bring up evidence that we would produce. Now, you're going to be instructed that as a defense, Mr. Bustos, the Defendant, the accused, he doesn't have to put on any evidence at all and, in fact, it is the Commonwealth's burden alone to produce all of the evidence.

If Mr. Bustos does not produce a single piece of evidence, do you think in your mind you'll be even - do you think that it will be too hard for you to find him not guilty if he doesn't produce a single piece of evidence?

[Juror 8]: So there would be no testimony or anything telling his side of the story?

[Defense counsel]: For example - yes, so if Mr. Bustos decides that he doesn't want to testify and he doesn't put on any evidence, he doesn't put on a case at all.

[Juror 8]: And we just hear from the prosecution?

[Defense counsel]: Yes. Will it be impossible for you to find him not guilty at that point?

[Juror 8]: Not impossible, but I would think it would be difficult not to hear both sides of the story.

[Defense counsel]: Okay. And in the back of your mind, do you think you would sort of be thinking that he's probably guilty because he doesn't testify?

[Juror 8]: I don't know. I would have - I mean, it would depend on what the whole story is.

Following that exchange, Bustos moved to strike Juror 8 for cause, arguing that there was "a reasonable doubt as to whether she can be fair and impartial" because of her "visceral reaction" to defense counsel stating it was a privilege to represent Bustos and her responses to the questions. The trial court denied the motion to strike for cause, and Juror 8 was ultimately removed using a peremptory strike.²

B. Jury Instructions

At the close of the evidence, the trial court reviewed the guilt-phase jury instructions agreed upon by both parties. Bustos raised an objection to Instruction 12, one of theCommonwealth's proposed sentencing instructions. Instruction 12 is the model jury instruction for geriatric parole, which states:

Any

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