Opinion
Record No. 1767-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY, Russell M. Carneal, Judge Designate
John C. Stephens, Jr. (Stephens Roberts, on briefs), for appellant.
Robert Q. Harris, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Steven McWayne Taylor (defendant) was convicted of two counts each of robbery, abduction, and rape, and one count of forcible sodomy, and assault and battery. On appeal, defendant complains that the trial court erroneously denied his request for additional voir dire of prospective jurors and that the evidence was insufficient to support the convictions. We disagree and affirm the judgments of the trial court.
The parties are fully conversant with the record in this case, and a recitation of the facts is unnecessary to this memorandum opinion.
Code Sec. 8.01-358 provides, in pertinent part, that "the court and counsel for either party shall have the right to examine under oath any . . . juror . . . and shall have the right to ask such person . . . any relevant question to ascertain whether he . . . has expressed or formed any opinion, or is sensible of any bias or prejudice . . . ." Id. However, in Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), the Supreme Court instructed that
[i]f 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. Grounds of objections to the seating of a juror that are not stated with sufficient specificity at the time of the trial court's ruling will not be considered on appeal.
Id. at 306, 384 S.E.2d at 793 (applying Rule 5:25). See generally Rule 5A:18; Jimenez v. Commonwealt 241 Va. 244, 248, 402 S.E.2d 678, 680 (1991) (noting that Rule 5A:18 is "virtually identical" to Rule 5:25).
Assuming, without deciding, that defendant properly objected to the trial court's denial of his request for additional voir dire and preserved the issue for appeal, he clearly failed to object to the seating of the disputed jurors. Defendant is, therefore, procedurally barred from raising the question at this juncture. See Spencer, 238 Va. at 306-07, 384 S.E.2d at 793; Rule 5A:18.
Because defendant did not proffer the questions which he intended to propound on voir dire, we are unable to properly consider this issue.
In considering defendant's challenge to the sufficiency of the evidence, "we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
Here, DNA analysis of semen obtained from the victim and defendant's blood established a probability of 1 in 128 million that a black male other than defendant was the perpetrator. The accuracy of these findings was corroborated by an independent DNA expert appointed by the trial court on defendant's motion.
Defendant argues that this evidence did not consider the existence of an identical twin or close relative to defendant, a circumstance which would diminish the probability that he was the perpetrator. While this hypothesis is conceivable, it has no basis in the record and the Commonwealth must only exclude hypotheses of innocence that reasonably flow from the evidence, not from defendant's imagination. Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991). The evidence, therefore, provided ample support for the convictions.
Accordingly, we affirm the judgments of the trial court.
Affirmed.