MEMORANDUM OPINION* BY v. Record No. 1721-23-4 JUDGE RANDOLPH A. BEALES FEBRUARY 11, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Michael E. Levy, Judge

Elena Kagan, Assistant Public Defender (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant.

C. David Sands, III, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Collin Chayce Crookenden, Assistant Attorney General, on brief), for appellee.

Following a jury trial, the Circuit Court of Stafford County convicted Julie M. Beavers of reckless driving, in violation of Code § 46.2-862. On appeal, Beavers argues that the evidence was insufficient to support her conviction. She also argues that the trial court erred in failing to strike Juror 23 for cause and further erred in refusing to modify or suspend the jury’s recommended sentence.

I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)). “This principle requires us to ‘discard the evidence of the accused in conflict with that of * This opinion is not designated for publication. See Code § 17.1-413(A). the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Kelley v. Commonwealth, 289 Va. 463, 467-68

(2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).

A. Voir Dire

At the beginning of voir dire, the trial judge asked the prospective jurors several questions “to determine whether any of you are so situated that it would be difficult for you to

hear the evidence, the arguments and the instructions of the Court and to render a fair and impartial decision in this case.” The prospective jurors all indicated that they had no personal interest in the outcome of the case, that they had not obtained any information about the alleged

offense, that they had not already expressed or formed an opinion about Beavers’s guilt or innocence, and that they were unaware of any biases or prejudices against the parties. They also indicated that they understood that Beavers was presumed innocent, that Beavers was not required to produce any evidence, and that the Commonwealth had to prove Beavers’s guilt beyond a reasonable doubt. In addition, the prospective jurors indicated that they knew of no reason why they could not be fair and impartial to the parties.

The attorney for the Commonwealth then asked the prospective jurors several questions.

The prospective jurors reiterated that they could be fair and impartial, that they had no religious, moral, or philosophical issues with rendering judgment of another, and that they understood that the Commonwealth was required to prove Beavers’s guilt beyond a reasonable doubt. After

explaining that the trial judge would instruct the prospective jurors on the law at the close of the evidence, the prosecutor asked the prospective jurors if they could apply the law to the facts of the case even if they disagreed with the law. The prospective jurors all indicated that they could.

Beavers’s trial counsel also questioned the prospective jurors. The prospective jurors acknowledged that Beavers had a right to a jury trial and that she had the right not to testify at trial. When asked if they had “a positive opinion of law enforcement,” multiple jurors, including

Juror 23, indicated that they did. Beavers’s trial counsel then asked those prospective jurors if they “might be more likely to believe testimony from a law enforcement witness,” and multiple jurors, including Juror 23, raised their hands in affirmation. Beavers’s trial counsel did not ask any follow-up questions to the prospective jurors on that topic.

During a private bench conference, the trial judge asked Juror 23, “[D]o you feel that if a witness in this case is a police officer, you will believe that witness’s testimony simply because he is a police officer without critically evaluating those other factors that you ought to consider in determining whether that’s [sic] testimony is worthy of your belief?” Juror 23 responded, “I am a police officer. I think I could follow the evidence and weigh their testimony as much as anybody else’s.” The attorney for the Commonwealth then commented, “So, if a law enforcement officer testifies, it would be your duty as a juror to evaluate that law enforcement officer’s credibility the same way you would any other witness.” Juror 23 replied, “Yes.”

Beavers’s trial counsel then asked Juror 23, “Do you believe that a law enforcement witness is inherently more credible than a civilian witness?” Juror 23 twice responded, “No.” When asked

by Beavers’s trial counsel if he could set aside his experience as a law enforcement officer, Juror 23 stated, “Yes.” The trial court denied Beavers’s motion to strike Juror 23 for cause.^[1]

B. The Guilt Phase of the Jury Trial

Lieutenant D.T. Diggs of the Stafford County Sheriff’s Office testified at Beavers’s jury

trial “as an expert in visual estimation of speed.” Lieutenant Diggs testified that on April 4, 2022, he was driving along White Oak Road in his unmarked patrol vehicle when he noticed a black Mustang as he was turning onto Bethel Church Road. He recounted, “So initially, as I’m turning, I see a black [M]ustang and the rear of the vehicle squats, which indicates to me that the vehicle is accelerating at a fast rate of speed.” He recalled that “[t]he vehicle then moved into the opposing lane of traffic and from there adjusted to the center of the road and then back into

the correct lane of travel.” He noted that the Mustang (which was the only other vehicle on the road at that time) passed an unobstructed road sign indicating that the posted speed limit on

Bethel Church Road was 45 miles per hour.

Lieutenant Diggs began to follow the Mustang. He testified, “I immediately respond by

increasing in speed, talking over the radio, I have a reckless driver.” He then described the process of “pacing” (or trying to keep up with) the Mustang, stating:

I increased the speed of my vehicle to catch up with the vehicle. When I am behind the vehicle and I looked down at my speedometer, we’re doing 114. We maintain, it’s increasing, we go up to 118. The last time that I looked at my speedometer, so I want to remind you that this is a two lane road. It’s pretty dangerous at this speed. For a slight second, we’re at 120 that was the last time that I looked down. And right after we hit 120 Ms. Beavers, I believe at that point, [she] saw my lights and slammed on her [brakes].

Lieutenant Diggs reiterated, “I remember looking down, observing 120 on the speedometer. And as soon as we hit that speed, is when she starts to apply her brakes pretty heavily and then we stop.”2 He explained that he had attempted to maintain a distance of one-tenth of a mile behind

Beavers’s vehicle to properly pace her, but he could not say for certain how closely he had followed her because he was trying to match her increasing speed. He noted that from the time the pursuit began to the time Beavers stopped her vehicle, the two had travelled “about a little less than a quarter of a mile” for “a minute, two minutes tops.”

Lieutenant Diggs then approached the Mustang, and he asked the driver (who was later determined to be Beavers), “[I]s there any reason that I shouldn’t take you to jail?” Beavers “advised that her son was having a mental health episode and she apologized for her speed.”

Lieutenant Diggs testified, “I asked her to show me what’s going on. She showed me a

Facebook message from the day prior but had nothing to show me that there was any concern at that moment or that day.” He went on to testify, “I then asked her if she would like for me to send fire and rescue to her residence or if she would like for me to send a unit to her residence and she declined both.” Beavers told Lieutenant Diggs that she felt that emergency services

“would escalate the situation.” Lieutenant Diggs noted that “[w]hen one of the deputies arrived on scene he corroborated that there had been some issues at the house previously with her son.”

He explained to Beavers that her son’s mental health episode “wasn’t an excuse for her to drive that way,” and he “told her before she left that we would remain in the area. And so if she got home and there was a problem to call us.”

After the Commonwealth presented its evidence, Beavers’s trial counsel moved to strike, arguing, “I don’t believe there’s sufficient evidence for the jury to find beyond a reasonable doubt, even in the light most favorable to the Commonwealth to find what specific speed she is traveling.” The trial court denied the motion to strike, finding that Lieutenant Diggs’s testimony

clearly established for purposes of the motion to strike that it was more than 20 over the 45 mile an hour speed limit. And for that matter, definitely in excess of 85 miles per hour, as well as the fact that the 45 had been posted and that she would have passed that posting unobstructed before he encountered her.

Beavers did not present any evidence in her defense, and her trial counsel renewed his

motion to strike. Surmising that Lieutenant Diggs had “other things on his mind” during the traffic stop like “his safety, Ms. Beavers’ safety, the safety of the community in general,”

Beavers’s trial counsel asserted that Lieutenant Diggs’s testimony regarding the time and distance traveled as he was pacing Beavers’s vehicle could not have matched the speeds that

Lieutenant Diggs described during his testimony. Beavers’s trial counsel maintained that there was not “sufficient evidence as far as consistency of speed and as far as consistent distance

between cars.” The trial court denied the renewed motion to strike, finding that “[a]s far as the conduct of the case, it is a question for the jury.” After hearing the evidence and argument from counsel, the jury convicted Beavers of misdemeanor reckless driving.

C. The Sentencing Phase of the Jury Trial

During the sentencing phase before the jury, Beavers testified that her son (who was then

28 years old) was diagnosed with bipolar disorder when he was 19 years old and that “he’s been hospitalized six times since then.” She explained that on April 4, 2022, she was at a Dollar

General store when she received a Facebook message from her niece “because of something my son had posted, a continuation of posts and which is normally how we find out that he’s not taking his medication.” She then stated, “I left the food that was in my cart, got in my car and I rushed home as quick as I could because he had been suicidal.” Beavers testified, “I do not know the rate of speed I was going,” and she maintained that she pulled over as soon as she saw

Lieutenant Diggs in her rearview mirror.

Noting that Lieutenant Diggs’s testimony about the traffic stop was accurate, Beavers testified that she told Lieutenant Diggs, “I need to get to my son.” She stated that Lieutenant

Diggs “offered to have like another officer go out or a [sic] call fire and rescue,” but she asserted that “[i]t exacerbates the situation with my son when he sees an officer.” Beavers claimed that

after she got home, she tried to administer medication to her son and to take him to the hospital, but he refused. She then recounted, “My son later that night got the keys from out of my purse and he drove down to 95 to Richmond, where he was picked up walking on 95 on the interstate.

He was hospitalized at VCU and he spent nine days there.”

During her testimony, Beavers acknowledged, “I feel like I was wrong to speed.”

However, she stated, “I don’t even know how fast I was going.” She further stated, I regret speeding like I did, but I just don’t think — I was obviously going too fast. I mean, I just don’t think I was going as fast as I was. But like I said, my mind — I was in mother mode, mother bear who needed to go protect her child.

She also told the jury that she had experienced several health and work-related issues over the past two-and-a-half years. Her trial counsel presented a certificate showing that before trial, Beavers “did complete an aggressive driving course in recognition that she was going faster than she should have been.”

The Commonwealth submitted certified copies of Beavers’s prior driving convictions and her Department of Motor Vehicles driver’s history record, which showed prior convictions for driving under the influence, driving on the wrong side of the road, driving with defective equipment, and failing to obey traffic signs. The attorney for the Commonwealth then argued that, although “the Commonwealth wholly understands and appreciates the severity of having a family member with a mental health issue,” Beavers’s reckless driving “put other people’s lives at risk.” The attorney for the Commonwealth pointed to Beavers’s poor driving record and her prior convictions for driving-related offenses to show that “[t]his is a pattern. It’s not just this isolated incident of I was worried so I drove home that fast. You don’t drive 120 miles an hour on a two lane road when you’re worried.” The Commonwealth asked the jury to sentence

Beavers to a period of active incarceration and to impose a fine.

In response, Beavers’s trial counsel acknowledged that Beavers had driven too fast, but he emphasized that Beavers

testified as to why she did what she did and she testified to the fact that she would never want to put anyone in danger but that what she was thinking about in that moment was getting home to her son because he had been suicidal and was experiencing a mental health episode.

He further emphasized that “[n]o one got hurt.” Beavers’s trial counsel asked the jury to impose a fine of $1,000 on Beavers, but not to sentence her to any period of active incarceration. After deliberation, the jury recommended a sentence of 5 months of active incarceration and a $1,250 fine.

D. The Trial Court’s Sentencing

At the sentencing hearing before the trial court, Beavers’s trial counsel submitted documentation showing that Beavers’s son was hospitalized in April 2022. He then proffered that Beavers has two elderly parents who live in Tazewell County, Virginia, and that her son now resides with them. He noted that Beavers had recently sold her home in Stafford County and that she intended to move to Tazewell County “to be with her family to take care of her obligations down there.” In addition, although Beavers was not currently employed, she had scheduled a job interview. Beavers’s trial counsel asserted that “justice is not served by imposing active incarceration in this case,” and he asked the trial court to suspend the entirety of any active jail sentence that it might impose. In response, the attorney for the Commonwealth argued that

Beavers’s case presented “extremely aggravated circumstances” and that “it’s probably one of the highest speeds that’s ever been in front of the Court at 120 miles an hour.” He stated that “it would be highly appropriate to impose the sentence the jury gave.” In allocution, Beavers apologized for speeding and reiterated that she was trying to get to her son, but she contended that “the Commonwealth makes light of my son’s situation and it’s not acceptable.”

Before pronouncing the sentence, the trial judge told Beavers, “The Court certainly

doesn’t make light of your son’s situation.” The trial judge pointed out, however, that “the document you showed him [Lieutenant Diggs] at that time to support that reason for the incredible speed was actually something that had been posted previous to that and not even that day.” The trial judge also pointed out that “we have the medical record which is dated the next

day and of course, has the [a]llusion to the substance abuse the Commonwealth referred to.” In addition, the trial judge emphasized that “we’re at 118 in a 45 mile per hour zone. That’s something I don’t know that this court has actually seen in fifteen years.” He noted that the jury

was presented with Beavers’s poor driving history and her prior driving-related convictions, and he further noted that the jury “certainly heard about your son’s situation, they heard about your health situation and they made the recommendation that they did.” The trial judge reminded

Beavers, “It was your right to ask that the jury fix the sentence in the case, you availed yourself

of that right. And at the colloquy, I told you, you understand that if the jury finds you guilty, the jury will decide the sentence and you understood that.” Finding no reason to modify or suspend the jury’s recommended sentence, the trial court sentenced Beavers to 5 months of active incarceration and a $1,250 fine. Beavers appeals to this Court.

II. ANALYSIS

A. Striking Juror 23 for Cause

Beavers argues, “The trial court erred by denying to strike Juror Number 23 for cause.” She contends that Juror 23 “affirmed that he would be more likely to believe testimony from a law enforcement witness” and that his “employment as a police officer casts reasonable doubt on his ability to be impartial.” She further contends that Juror 23’s responses during voir dire

“demonstrated that his experience as a police officer would affect his ability to judge the credibility of law enforcement testimony,” and she maintains that Juror 23 “was not rehabilitated” because “he merely assented to persuasive suggestions.”

Whether a juror is sufficiently impartial “is a question of fact, and a trial court’s decision to

seat a juror is entitled to great deference on appeal.” Huguely v. Commonwealth, 63 Va. App. 92, 121 (2014) (quoting Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61 (2011)); see also Weeks v. Commonwealth, 248 Va. 460, 475 (1994). The test “is whether the venireperson can lay aside the preconceived views and render a verdict based solely on the law and evidence presented at trial.”

Id. (quoting Griffin v. Commonwealth, 19 Va. App. 619, 621 (1995)). Because the trial court is “able to see and hear each member of the venire respond to questions posed,” it “is in a superior position to determine whether a prospective juror’s responses during voir dire indicate that the juror would be prevented from or impaired in performing the duties of a juror as required by the court’s instructions and the juror’s oath.” Townsend v. Commonwealth, 270 Va. 325, 329 (2005) (quoting

Green v. Commonwealth, 262 Va. 105, 115 (2001)). For these reasons, the trial court’s decision to retain or exclude a prospective juror “will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.” Id. at 329-30 (quoting Barrett v. Commonwealth, 262

Va. 823, 826 (2001)). In making such a determination, we must consider the “entire voir dire, not just isolated portions.” Juniper v. Commonwealth, 271 Va. 362, 401 (2006).

This Court has often stated that “per se rules of disqualification which are based on ‘a presumption of [juror] bias or prejudice,’ are disfavored in Virginia.” Bay v. Commonwealth, 60

Va. App. 520, 531 (2012) (alteration in original) (quoting McGann v. Commonwealth, 15 Va. App.

448, 454 (1992)). Indeed, the Supreme Court has found that there is no per se disqualification rule

for a prospective juror who has an association with a law enforcement officer, see Clozza v. Commonwealth, 228 Va. 124, 135 (1984), for a prospective juror who is a retired law enforcement officer, see Gray v. Commonwealth, 233 Va. 313, 338 (1987), or for a prospective juror who is a retired probation and parole officer, see Strickler v. Commonwealth, 241 Va. 482, 492 (1991).

Although there are limited instances where the status of a prospective juror creates a per se disqualification, none of them applies here.^[3]