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Brown v. Commonwealth

Court of Appeals of Virginia

November 4, 2014

GENE ANTHONY BROWN
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE. Jonathan M. Apgar, Judge.

Paul G. Beers (Glenn, Feldmann, Darby & Goodlatte, on briefs), for appellant.

Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Huff and Senior Judge Annunziata.

OPINION

Page 298

[64 Va.App. 61] GLEN A. HUFF JUDGE.

Gene Anthony Brown (" appellant" ) appeals his convictions of first-degree murder, in violation of Code § 18.2-32, use of a firearm in the commission of first-degree murder, in violation of Code § 18.2-53.1, and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. Following a jury trial in the Circuit Court of the City of Roanoke (" trial court" ), appellant was sentenced to a total of forty three years' incarceration in the Department of Corrections. On appeal, appellant first argues that " [t]he trial court erred by wrongfully removing juror [M.B.] from the jury without cause." Next, appellant argues " [t]he trial court erred by denying [appellant's] alternate motion for [a] mistrial on account of the wrongful removal of juror [M.B.]" For the following reasons, this Court affirms the trial court's rulings.

I. BACKGROUND

On appeal, " 'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va.App. 439, 442, 642 [64 Va.App. 62] S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

In the August 2011 term, a grand jury empaneled by the trial court indicted appellant for first-degree murder, in violation of Code § 18.2-32, use of a firearm in the commission of first-degree murder, in violation of Code § 18.2-53.1, and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. A three-day trial ensued, and appellant was convicted of all three charges.[1] At the outset of appellant's trial, the trial court began the jury selection process with a pool of twenty-three prospective jurors. At the conclusion of voir dire, each side exercised five peremptory strikes, leaving a thirteen-member jury -- twelve regular jurors and one alternate, who was to be selected at random. Without objection, the thirteen jurors were seated, and M.S. was randomly chosen as the alternate.

Following lunch on the first day of appellant's trial, one of the regular jurors, M.B., informed the trial court that a young woman, whose name she did not know, " recognized" her as she exited the elevator in the courthouse. The woman informed M.B. that her grandparents live " down the street" from M.B.'s house. M.B. told the trial court that she had not noticed the woman at the outset of the proceedings, but later realized that the woman " was with . . . [appellant's] party." Additionally, M.B. informed the trial court that she is " a single parent" and that she " [doesn't] want to have any problems." When the trial court asked if M.B. thought the woman was threatening her, M.B. responded, " No, no, no, . . . but it just worries me that someone knows where I live." The trial judge returned M.B. to the jury, and appellant's trial proceeded.

On the second day of appellant's trial, the Commonwealth moved for the trial court to excuse M.B. for cause and replace [64 Va.App. 63] her with M.S., the alternate juror. Specifically, the Commonwealth was concerned that M.B. may be considering " things other than the law and the evidence." The trial court agreed that the Commonwealth's concern was " legitimate," but nevertheless took the

Page 299

Commonwealth's request " under advisement."

On the morning of the third day of appellant's trial, the Commonwealth renewed its motion to replace M.B. with M.S. on the ground that M.B. " may be taking into account [other concerns] other than the law and the evidence." Appellant objected to the Commonwealth's motion, arguing that M.B. had " been one of the more attentive jurors in the whole case." The trial court decided to bring M.B. back into the ...


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