Keil v. Commonwealth , 222 Va. 99 ( 1981 )

COMPTON, J.,

dissenting in part.

I am of opinion that statements in at least one of the press reports were prejudicial to the defendant, and that the majority is wrong when it says “there was no reason from the content of the news articles to fear prejudice.” I believe there was substantial reason to fear prejudice.

The Daily Press reported on March 6, 1980, that one of the investigators told the trial judge, out of the jury’s presence, that the defendant said “he did not want to give hair and blood samples because they might incriminate him.” That inculpatory statement was ruled inadmissible by the trial court. Such a revelation in this circumstantial evidence prosecution would have devastated the defendant’s case had it reached one or more jurors. Therefore, I would decide now the issue we did not reach in Thompson v. Commonwealth, 219 Va. 498, 247 S.E.2d 707 (1978).

I would hold that when, as here, prejudicial publicity is brought to the attention of the court during the course of the trial, the court must ascertain if any of the jurors had read the news account. Upon inquiry made to the jury collectively, if none of them had read the publicity in question the judge would be required to proceed no further. If, on the other hand, any of the jurors responded affirmatively, the trial judge should examine those jurors individually and out of the presence of the others to determine the effect of the publicity. United States v. Hankish, 502 F.2d 11, 11 (4th Cir. 1974). See State v. Williams, 230 S.E.2d 742, 745-46 (W. Va. 1976).

Because this news coverage was prejudicial, I think the trial court abused its discretion in failing to take the simple step of merely asking the jurors whether they had read the account of the trial appearing in the press on the day in question.

Consequently, I would reverse the conviction in this case.

POFF, J., joins in this dissent.