FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Frank A. Hoss, Jr., Judge
Denise Jakabcin Tassi for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick Argued at Alexandria, Virginia
MEMORANDUM OPINION [*]
JOHANNA L. FITZPATRICK JUDGE
Michael David Hillman (appellant) was convicted in a jury trial of distribution of heroin in violation of Code § 18.2-248 and felony murder in violation of Code § 18.2-33. On appeal, he argues that the trial court erred in: (1) failing to strike or excuse a juror distracted by a work deadline; (2) finding the evidence sufficient to support his felony murder conviction as an accessory before the fact; (3) finding a causal link between his sale of the heroin and the death of the victim; and (4) denying his motion for a new trial filed more than twenty-one days after the final order. For the reasons that follow, we affirm the trial court.
On January 31, 1993, appellant bought ten bags of high grade heroin in Washington, D.C. for his own use and for sale to others. At 7:30 p.m., Willie Ordonez (Ordonez) called Suzann Szabolsoky (Szabolsoky) and requested to buy heroin. Szabolsoky contacted appellant, and appellant sold her a bag of heroin at 9:00 p.m. at her house. Appellant, who stayed only a few minutes, left before Ordonez arrived. Yvonne Johnson (Johnson) heard Szabolsoky tell appellant that the heroin was for Ordonez, and appellant warned her to tell Ordonez "to take it easy because [the heroin was] some powerful stuff." Thirty to forty-five minutes later, Szabolsoky sold the heroin to Ordonez; gave him some cotton, which is used for injecting heroin; and left him in the kitchen with a syringe. After fifteen minutes, Ordonez went into the living room, drank a beer, fell asleep on her sofa, and died. The cause of death was morphine poisoning.
FAILURE TO STRIKE JUROR
Appellant argues that the trial court erred in refusing to: (1) strike Juror Martin for cause, and (2) in the alternative, excuse her under Code § 8.01-341.2. Juror Martin testified that she had a work deadline and would be distracted during the trial, but that she would "make an attempt" to give the trial her attention.
"Upon appellate review, we must give deference to the trial court's decision whether to exclude or retain a prospective juror because the trial court 'sees and hears the juror;' accordingly, the trial court's decision will be disturbed only upon a showing of manifest error." Weeks v. Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 389 (1994) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824 (1991)).
The trial judge did not abuse his discretion in refusing to strike Juror Martin for cause. Her work concerns were of no greater concern than most jurors. See Mu'Min v. Commonwealth, 239 Va. 433, 444-45, 389 S.E.2d 886, 893-94 (1990). She indicated that she would try to give the trial her attention and that she recognized its importance.
Appellant's argument that the trial judge should have excused the juror pursuant to Code § 8.01-341.2 is barred on appeal because he did not present it to the trial court. Rule 5A:18. Even if we addressed this issue, the ...