849 S.E.2d 131
Va. Ct. App.2020Background
- Appellant Norman L. Blowe was convicted of multiple child-pornography and related offenses; jury convicted and then deliberated sentence.
- Jury was instructed on sentencing ranges, including mandatory minimums that required at least 13 years’ imprisonment total for two production convictions (3 and 10 years).
- During sentencing deliberations the jury asked the courtroom clerk whether they could “choose ‘nothing’ for the second offense”; the clerk answered that they had to follow the court’s instructions and did not notify the judge or counsel.
- After dismissal, two jurors wrote letters reporting the clerk’s ex parte response; Blowe moved for an investigation for jury tampering and sought a new sentencing proceeding.
- The trial court found the clerk’s communication occurred, acknowledged it was improper and presumptively prejudicial, but concluded the Commonwealth rebutted prejudice because the clerk’s answer mirrored correct law and the jury imposed only the mandatory minimums; trial court denied relief and imposed the sentences.
- The Court of Appeals affirmed, holding the jury-contact presumption of prejudice was rebutted and any error did not prejudice Blowe; remedy would be resentencing only, not a new guilt trial.
Issues
| Issue | Blowe's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether clerk’s ex parte answer to jurors during sentencing is presumptively prejudicial | Clerk’s answer was impermissible ex parte legal advice that triggers a presumption of prejudice and requires investigation/new sentencing | While improper, the clerk only answered a procedural question and did not add facts or comment on evidence; presumption can be rebutted | Court: Ex parte contact occurred and is presumptively prejudicial, but presumption may be rebutted by Commonwealth |
| Whether the Commonwealth rebutted the presumption of prejudice | Presumption not rebutted; clerk’s answer influenced the jury to impose mandatory minimum they otherwise might have avoided | The clerk’s statement correctly restated the court’s instructions and would have been the trial judge’s answer; no outside facts/opinions were given | Court: Commonwealth met its burden; contact was harmless because the clerk’s statement matched correct law and judge would have said the same |
| Whether Blowe suffered legally cognizable prejudice from the clerk’s statement | Clerk’s answer foreclosed jury nullification and caused prejudice; thus resentencing is required | Any jury nullification would be unlawful; even if jury tried to impose less, the court would seat a new jury until mandatory minimums were imposed | Court: No cognizable prejudice; jury imposed the statutory minimums, so Blowe received no less than he could under law |
| Appropriate remedy if contact prejudiced defendant | New trial on guilt and/or resentencing | If error, remedy is a new sentencing jury only (not a new guilt trial) | Court: Remedy for juror-contact in sentencing would be a new sentencing proceeding only; here no resentencing relief warranted |
Key Cases Cited
- Commonwealth v. Juares, 274 Va. 812 (presumption that private juror contact about the matter pending is prejudicial; presumption is rebuttable)
- Remmer v. United States, 347 U.S. 227 (ex parte contact with jurors is presumptively prejudicial; government must show harmlessness)
- United States v. Olano, 507 U.S. 725 (inquiry whether intrusion affected deliberations and verdict is the ultimate question)
- Commonwealth v. Greer, 63 Va. App. 561 (jury may not nullify mandatory minimum sentences; court must reject such attempts and retry sentencing)
- Lilly v. Commonwealth, 50 Va. App. 173 (mandatory minimums set a floor that neither judge nor jury may go below)