Terry v. Commonwealth

ANTONIO TQUAN TERRY, S/K/A ANTONIO T-QUAN TERRY v. COMMONWEALTH OF VIRGINIA

No. 0187-21-3

Court of Appeals of Virginia

December 13, 2022

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam Jr., Judge

Paul C. Galanides for appellant.

John Beamer, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and Friedman Argued at Lexington, Virginia

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN, JUDGE

Following a jury trial Antonio TQuan Terry ("Terry") was convicted of first-degree murder, use of a firearm in the commission of a felony, and five counts of maliciously shooting into an occupied vehicle. He was sentenced to forty-five years of incarceration.

He argues on appeal that the circuit court erred in denying his motion to set aside the verdict. His motion to set aside alleged that one of the jurors answered questions falsely on voir dire regarding her relationship to the victim and to the Commonwealth's key witness. For the following reasons, we affirm.

Background

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)).

This Court must reject any of appellant's evidence that conflicts with that of the Commonwealth, and instead "regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Id. at 473 (quoting Kelley v Commonwealth, 289 Va. 463, 467-68 (2015)).

Jury Trial Proceedings

The evidence presented during the jury trial established that Terry traveled in a vehicle with two other men on July 25, 2019; Keenan Cunningham was driving the vehicle and Lateze Barnes and Terry were passengers. The testimony at trial established that Cunningham stopped to let both Barnes and Terry out of the car just after 3:30 a.m. However, Cunningham was found shortly after by an officer in the vicinity; he was dead, sitting in the same vehicle, just down the street from where the passengers had been dropped off. Cunningham had bullet wounds and .9-millimeter shell casings were found near the crashed vehicle.

The police investigated Terry, who admitted to detectives that he had been with Cunningham the previous night but was dropped off before Cunningham's car crashed. Terry was subsequently charged with several crimes in relation to Cunningham's death.

Barnes was a witness for the Commonwealth at trial. He had been friends with both Terry and Cunningham for about fifteen years before the murder. He testified that the three men had gone together to a casino in North Carolina the night before. On the way home to Danville, Terry began arguing with Cunningham about Cunningham's reckless driving. Barnes explained there hadn't been bad blood or pre-existing arguments between the friends, but on that night, Terry had been asking to get out of the car-because of Cunningham's dangerous and fast driving-but Cunningham would not let him out. During the trip home Terry told Cunningham that his driving had put Terry's life in danger. Eventually, Cunningham did pull over and let Barnes and Terry out at an unintended destination-Hughes Street. Barnes exited the vehicle from the rear passenger side, and Terry exited from the front passenger seat. Barnes heard shots that were close and also on the right side of the car. After hearing the shots, he ran. He glanced back and saw flames on the right side of the car, heard gunshots, saw the flashes of gunfire going toward the car, and saw Terry still to the right of the car. Barnes testified that he had not seen a gun, had not seen Terry with a gun that night, and guns were not allowed in the casino they were returning from. Barnes took himself to the Danville police station the next day after hearing the police were looking for him.

The Commonwealth called fourteen witnesses to testify in addition to Barnes. Mostly, they were police or forensic workers that were not present during the shooting. The officers and forensic testimony established that shots were fired into the vehicle from a .9-millimeter gun and that Terry was in the area of the murder around 3:30 a.m. based on phone records. However, a witness named Tomekia Barnes was an eyewitness to some of the events. She testified that she lived on Hughes Street and knew Terry prior to this incident. The night of the murder, she was walking between apartments looking for a cigarette. She saw a vehicle pull over and heard two car doors open. She did not see who got out of the front passenger seat, but she did hear and see what looked like a shooting before seeing someone take off running. She did not see who did the shooting, but she saw someone wearing a white t-shirt that "looked like [Terry]." The next day Terry came by her apartment several times. On at least one occasion, he asked her about what she told the police. She asked him where the gun was from the night before, to which he replied he did not have a gun the night before. Tomekia explained that she knew Terry owned what might have been a .9-millimeter gun, which she had seen him with before this incident.

The jury returned a verdict finding Terry guilty of first-degree murder, use of a firearm in the commission of a felony, and five counts of maliciously shooting into an occupied vehicle. It sentenced Terry to forty-five years.

The court indicated it would impose the jury's sentence. Prior to entry of the court's sentence Terry moved to set aside the verdict and requested a new trial. He argued that one of the jurors, Angela Flowers, knew Barnes, a key witness, and Cunningham, the victim, but was dishonest about the relationships during voir dire. The court held a hearing on this motion prior to entering a sentencing order.

Voir Dire Proceedings

During the pre-trial venire of the jury, the circuit court gave general directions to the jurors about venire. It explained "if the court finds that it would be inappropriate for a particular juror to serve on this case for a specific reason, such as a juror being related to one of the parties, or a victim then that juror would be excused from service as a juror in this case." Following general instructions, the court asked the jurors "[d]oes anyone know, or is anyone related by blood or marriage, or have any relationship that you know of with Mr. Terry?" to which no juror responded, including Flowers. When asked if any member of the jury knew Cunningham, two jurors responded that they did; each of these two jurors was asked if they could be fair and impartial, to which they said no. Both jurors were then excused.^[1] Flowers did not respond in any manner to the question about Cunningham. Flowers did not respond affirmatively when the Commonwealth asked the jury whether anyone knew Barnes, nor did she respond affirmatively when the jurors were asked whether there was any reason they could not give a fair and impartial trial to both sides.

Post-Trial Motions to Set Aside the Verdict and to Grant a New Trial

Following the trial, social media evidence linking Flowers and Cunningham was discovered by Terry's mother, who knew Flowers' mother, but not Flowers. A Facebook post from Flowers read "Rip Kalosso Keenan there was never a dull moment when we was at primos, you always had me crying laughing." Kalosso Keenan was the name Cunningham used on Facebook.

During the hearing on Terry's post-trial supplemental motion to set aside the verdict, Terry argued that Flowers provided a false answer during jury selection regarding her knowledge of Barnes and Cunningham. He alleged that she allowed her knowledge of Barnes to affect her credibility determination of the Commonwealth's witness, and her lack of candor regarding her knowledge of Cunningham proved she was not indifferent in the case, resulting in injustice to Terry.

Flowers testified about her knowledge of and relationship with Terry, Cunningham, and Barnes during the post-trial hearing. Carlos Torrain, a man who knew all three men, testified as well. Terry and Terry's mother also testified about the relationships between Flowers, Terry, Barnes, and Cunningham.

Flowers' Relationship with Barnes, the Commonwealth's Key Witness

Torrain, who was thirty-two years old at the time of his testimony, explained that Barnes and Flowers had known each other during their childhood and he had seen them interact a few times fifteen or sixteen years prior. When they interacted those few times, they were just "chilling" and "coming out of high school."

Flowers testified that she knew Barnes as a child and they were maybe cousins, but she had not seen him since she was a child and did not even know he lived around her. She had not been in touch with him since childhood. She did not know if they were actually biologically related, or if so, how "far down the line" their relationship went. She did not recognize him by name at trial because she knew him simply as "Teze," rather than as Lateze Barnes. Once she actually saw him at trial, she recognized him.

Flowers' Relationship with Cunningham, the Victim

Torrain said that he grew up knowing Barnes, Flowers, and Cunningham and though Barnes came around to the apartment complex where he and Flowers lived, he never saw Cunningham in the complex.

Flowers testified that she did not recognize Cunningham by his name either (she knew him as Kalosso Keenan, his Facebook name). She only realized she knew him when she recognized him from a photograph shown during the trial.

Flowers testified that she had known Cunningham for about two weeks when they both worked as delivery drivers for...