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Simmons v. Commonwealth

Court of Appeals of Virginia, Chesapeake

February 25, 2014

Tyrone Jerrard SIMMONS
v.
COMMONWEALTH of Virginia.

Page 546

From the Circuit Court of the City of Norfolk, Charles E. Poston, Judge.[1]

Curtis T. Brown, Norfolk, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and ALSTON Judges.

FRANK, Judge.

[63 Va.App. 71] Tyrone Jerrard Simmons, appellant, was convicted by a jury of driving under the influence, in violation of Code ยง 18.2-266. On appeal, he contends the trial court erred in not striking three jurors for cause. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND [2]

At the beginning of jury selection, the trial judge asked the jurors a number of questions, namely: 1) whether any of them had expressed or formed an opinion as to the guilt or innocence of the appellant; 2) whether the charge of driving while intoxicated would cause any bias; and 3) whether they knew of any reason why they could not give a fair and impartial trial to both parties based solely on the law and the evidence. No juror responded affirmatively. The Commonwealth's attorney asked whether any of the prospective jurors would have a problem impartially applying the law as instructed by the court. No juror indicated that he or she would have any problem doing so.

Defense counsel then asked, " [a]re there any members of the jury that think that it is improper— it is improper to drive after you have been drinking alcoholic beverages?"

Page 547

This question received all affirmative responses. Before counsel began individual questioning based on the responses, the trial judge asked counsel if he could be more specific with his question and whether it was accurate to say that he was [63 Va.App. 72] " asking them if they feel that someone should not drive if they've had any alcohol to drink." Counsel agreed, and the jurors indicated they understood the judge. During defense counsel's voir dire, the trial judge stated:

[T]here may be a difference between your own code of conduct that you would conduct yourself and the law of the Commonwealth. So, for example, some of you may indicate that, you know, your own code of conduct, you would not drive a vehicle after even having any taste of alcoholic beverage, and that's your code of conduct and that's your decision to make, but the question would be, would you be able to apply the law of the Commonwealth in this case, or would you— or would you apply your own stricter code of conduct as if it was the law of the Commonwealth in deciding whether the defendant was guilty or not guilty, or the case been proven beyond a reasonable doubt? Is there any of you that would apply your own stricter code of conduct rather than apply the law as per the instructions that the Court may give you? Did I explain that clearly?
THE JURORS: Yes.
THE COURT: Okay. Everyone is ...

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