Opinion
Record No. 1537-91-1
June 22, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK THOMAS R. MCNAMARA, JUDGE.
Christopher P. Shema (Christopher P. Shema, P.C., on brief), for appellant.
John H. McLees, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Benton.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Maurice Wilkes George (appellant) appeals from a judgment of the Circuit Court of the City of Norfolk (trial court) that approved a jury verdict convicting him of statutory burglary. Appellant contends that the trial court erroneously refused to permit his counsel to conduct voir dire. He also contends that the trial court erred when it refused to ask the prospective jurors questions his counsel submitted in advance of the trial date. The Commonwealth argues that the record is insufficient for this Court to render an opinion on the errors alleged; that appellant did not meet the requirements of Rule 5A:18 so as to preserve the issues for appeal; and that the record fails to disclose trial court error relating to the voir dire.
Prior to trial, appellant filed with the trial court a list of proposed questions he wanted to ask prospective members of the jury panel. The transcript of the trial fails to show which, if any, of these questions the trial court refused to allow. No statement of facts, in lieu of a transcript, was prepared in accordance with Rule 5A:8(c). The transcript contains only the following reference to the conduct of the voir dire:
(The jury panel was called; the jury panel was sworn on voir dire; the jury panel was questioned on voir dire.)
MR. SHEMA [appellant's counsel]: We need to approach (whereupon, counsel approached the Bench and conferred with the Court out of the hearing of the court reporter.)
Thereafter, a recorded hearing out of the jury's presence revealed that one of the prospective jurors was challenged by appellant for cause. Although the juror had been the victim of break-ins, his responses satisfied the trial court that the juror could act responsibly. When the trial court refused to remove the juror from the prospective panel, counsel for appellant sought permission to question him further. The trial court denied the request, saying:
We have already done that. I asked if there were any additional questions and the answer was no. Now we are past that stage and I am not going to reopen it.
The trial court then asked if there were any further motions. The following appears in the record:
THE COURT: You had something else you wanted to put on the record?
MR. SHEMA: Yes, sir. This would probably be a good time to do it.
Your Honor, before trial started we met in chambers and I reviewed with you the defense motion I have filed asking for voir dire questions, my proposed voir dire questions, and Your Honor rejected several of those. I have some case law, Your Honor, I'd like to apprise you of. I don't want to reargue your ruling, I just have it available.
THE COURT: We will have it in the record and your written motion that you made will be made a part of the record.
MR. SHEMA: Yes, sir.
THE COURT: Of course, it has been considered with what was given. I have made some notations on it that might indicate what was refused, but your exception is certainly noted to every request that you made that the Court refused.
MR. SHEMA: Thank you, Your Honor.
THE COURT: Yes, sir.
The court and counsel returned to the courtroom, where the peremptory strikes from the panel were made. The following appears in the transcript:
(The jury was selected by peremptory challenge; the trial jury was administered the trial oath; the witnesses were sworn by the clerk; motion was made by defense counsel and granted by the Court for the separation of witnesses; the trial jury was preliminarily instructed by the Court; and opening statements were made by counsel.)
The record does not reflect that counsel for appellant objected to any member of the jury being seated after the strikes were made. Any deficiency in the transcript has not been supplemented by a statement of facts in lieu thereof.
Although the record contains the list of proposed questions appellant sought to ask of the potential jurors, it does not disclose which questions were asked or refused. We know that some questions were asked on voir dire and when, at the conclusion of the trial court's voir dire inquiry, the attorneys were asked whether "there were any additional questions . . . the answer was no." After the strikes were made, the jury was seated without objection.
Following the verdict and approval thereof by the trial court, appellant dictated the following to the court reporter:
I have previously taken exception to the Court's refusal to propound specific questions on voir dire which were submitted in writing to the Court. Those questions have been marked and made a part of the Court's file. I have offered to the Court authority to support the position that defendant by his counsel is entitled to ask any question relevant to an exploration of every possible bias and prejudice preconceived, upon which the Court passed to the jurors.
"A party has no right, statutory or otherwise, to propound any question he wishes, or to extend voir dire questioning ad infinitum." LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S. 1063 (1984). "The court must afford a party a full and fair opportunity to ascertain whether prospective jurors 'stand indifferent in the cause,' but the trial judge retains the discretion to determine when the parties have had sufficient opportunity to do so."Id. This record is void of evidence that the trial court abused its discretion in the conduct of the voir dire.
The burden is on the party who alleges trial court error to provide the appellate court with an adequate record from which the issue presented may be reviewed and a decision made. While the numerous proposed questions submitted by appellant prior to trial are reproduced in the record, we are unable to determine which of those were asked or whether failure to ask any would be cause to set aside appellant's conviction. Because the record does not contain the underlying basis of the trial court's selection of voir dire questions, we are unable to make a proper review. See Tomlinson v. Commonwealth, 8 Va. App. 218, 227, 380 S.E.2d 26, 31 (1989).
Under the Rules of Court, a litigant who seeks appellate review must present a sufficient record upon which the reviewing court can determine whether the lower court has erred, Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961), and that record must contain all material matters necessary for the appellate court to determine whether a reversible error occurred at trial. Luhring v. Sam Finley, Inc., 202 Va. 260, 262, 117 S.E.2d 126, 127 (1960). If a transcript is not available or the court reporter did not record matters essential to the appeal, Rule 5A:8(c) provides a method for submitting a statement of facts in lieu of the transcript. No such statement is contained in the record before us. That failure has prevented appellate review of the issues. See LeMond v. McElroy, 239 Va. 515, 520-21, 391 S.E.2d 309, 312 (1990).
Finally, appellant contends he was denied due process because jurors were selected and seated to decide his guilt or innocence without his being permitted to obtain answers from the prospective jurors to the questions he submitted in advance of trial. Assuming that the record supports appellant's contention that the trial court failed to ask or permit appellant to ask those questions, the failure of appellant to object to the seating of the jurors selected constitutes a waiver of any prior objection he may have made. Spencer v. Commonwealth, 238 Va. 295, 306, 384 S.E. 785, [ 384 S.E.2d 785], 793 (1989), cert. denied, 493 U.S. 1093 (1990).
If a party objects to rulings made during the voir dire of a prospective juror, but subsequently fails to object to the seating of that juror, the party has waived the voir dire objections.
Id.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.