William Childress v. Commonwealth of Virginia ( 2000 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present:  Chief Judge Fitzpatrick, Judge Benton and
    Senior Judge Duff
    Argued at Alexandria, Virginia
    WILLIAM CHILDRESS
    MEMORANDUM OPINION * BY
    v.   Record No. 1890-98-4                JUDGE JAMES W. BENTON, JR.
    FEBRUARY 15, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF WARREN COUNTY
    Dennis L. Hupp, Judge
    Elwood Earl Sanders, Jr., Appellate Defender
    (Public Defender Commission, on brief), for
    appellant.
    Linwood T. Wells, Jr., Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    A jury convicted William Childress of grand larceny.   On
    appeal, he contends the trial judge erred in refusing to allow a
    voir dire question to a prospective juror and in failing to strike
    for cause that same prospective juror.   For the reasons that
    follow, we reverse his conviction and remand to the circuit court
    for a new trial.
    I.
    During voir dire for Childress' jury trial, a prospective
    juror identified himself as "a Park Ranger in law enforcement from
    1981 until about 1990."    He then responded as follows:
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    [DEFENSE COUNSEL]: Okay. Now, would that
    experience cause you to give either more or
    less weight to the testimony of any police
    officer because he has the uniform and the
    badge, or has the status of a police
    officer?
    [TRIAL JUDGE]: Let me ask the question this
    way. Would you tend to give the testimony
    of a police officer or any law enforcement
    officer more or less weight than you would
    that of another witness, simply because that
    person is a police officer?
    [PROSPECTIVE JUROR]:    I hope not, but I'm
    not sure.
    After other questions were posed to the panel of
    prospective jurors, the trial judge called the prospective juror
    for a more specific voir dire.    Before defense counsel began his
    questions, the trial judge asked the following:
    [TRIAL JUDGE]: . . . [Y]ou had indicated
    that you may give the testimony of the law
    enforcement officer more weight than you
    would that of another witness, simply
    because that person is a law enforcement
    officer. Was that your response or you had
    some concern about that?
    [PROSPECTIVE JUROR]: Well, I have been out
    of it for seven years and I hope that I can
    be fair, but you know, I wasn't sure if I
    would, you know, lean, be prejudiced by, you
    know, an officer's testimony or not.
    [TRIAL JUDGE]: All right. Let me ask you
    this. If you are instructed that you need
    to determine the credibility of any witness
    based on a number of things, first would be
    the appearance, the behavior, the attitude
    of the witness on the witness stand; the
    interest of the witness in the outcome of
    the case; perhaps the relation of a witness
    to any party in the case; his or her
    inclination to speak truthfully or not; the
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    probability or improbability of what the
    witness is saying; and those sorts of
    things. I am not saying that you cannot
    factor in any training and experience of a
    law enforcement officer. I am not saying
    that you have to disregard that, but it has
    to be weighed with all the facts and
    circumstances of the case and those other
    things that you need to look at the
    determined credibility. Do you think that
    you can do that?
    [PROSPECTIVE JUROR]:    I think so.
    The trial judge then permitted defense counsel to ask
    questions.    The following voir dire ensued:
    [DEFENSE COUNSEL]: [W]ould you count
    somebody who is an officer, simply because
    he is an officer, to be more credible than
    another witness or believable than another
    witness?
    [PROSPECTIVE JUROR]: That depends on the
    officer. I would, you know, think that I
    could be fair.
    [DEFENSE COUNSEL]: Okay, what do you think
    being fair is in a situation like this
    . . . . ?
    [PROSPECTIVE JUROR]:    See what the evidence
    is.
    [DEFENSE COUNSEL]: Okay, I take it you have
    some doubt that, some concern that you are
    going to have trouble with being fair during
    the trial?
    [PROSPECTIVE JUROR]: Well, this is the
    first time that I have been on a Jury and I
    don't know how I'm going to react.
    [DEFENSE COUNSEL]: I see. But your concern
    is that you may react sympathetically to the
    officer's side, to the officer's testimony
    because of your former service yourself?
    [PROSPECTIVE JUROR]:    Okay, I don't know.
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    [DEFENSE COUNSEL]:   You do not know.
    [PROSPECTIVE JUROR]:    I hope not.
    DEFENSE COUNSEL]: You hope not, but you
    might, is that. . . .
    [PROSPECTIVE JUROR]:    Yes.
    [DEFENSE COUNSEL]: And you think because
    . . . Would you say there is a serious risk
    that you would, looking at yourself?
    [PROSPECTIVE JUROR]:    No, no.
    [DEFENSE COUNSEL]: No to that question, but
    there is certainly . . . You are saying is
    . . . When you say a serious risk, maybe I
    overstated. Is there a substantial
    likelihood, would that be a better phrase?
    Is that accurate?
    [PROSPECTIVE JUROR]:    I don't think so.
    [DEFENSE COUNSEL]: As distinct from an
    officer's testimony, do you instinctively
    sympathize with the prosecution side of a
    criminal case because of your . . . I take
    it you have been a witness before for
    prosecutors, have you not?
    [PROSPECTIVE JUROR]:    That's correct.
    [DEFENSE COUNSEL]: Well do you sympathize
    naturally with the prosecution because of
    your former status as a . . .
    [PROSECUTOR]: Your Honor, I am going to
    object to that question. I do not think
    that is appropriate.
    [DEFENSE COUNSEL]: Well, I think it is. I
    mean, we are exploring a possible bias and
    he has expressed at least a glimpse of
    doubt. I think I have a duty to my client
    to explore it.
    [PROSECUTOR]: Your Honor, all citizens are
    in favor of law and order and we are . . .
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    [TRIAL JUDGE]: I am going to stop it here.
    I sustain the objection and note your
    [exception]. . . .
    Defense counsel then asked other questions relating to the
    prospective juror's experiences as a park ranger.    At the
    conclusion of the voir dire, defense counsel moved to strike the
    prospective juror for cause.    The trial judge denied the motion.
    Defense counsel then used a peremptory strike to remove the
    prospective juror.   At the jury trial, the jury acquitted
    Childress of statutory burglary and convicted him of grand
    larceny.   This appeal followed.
    II.
    The right to a trial by an impartial jury is guaranteed
    under the United States and Virginia Constitutions and by
    legislative enactment.     See U.S. Const. amend. VI; Va. Const.
    art. I, § 8; Code §§ 8.01-357 and 8.01-358.    "By ancient rule,
    any reasonable doubt [regarding the prospective juror's ability
    to give the accused a fair and impartial trial] must be resolved
    in favor of the accused."     Breeden v. Commonwealth, 
    217 Va. 297
    ,
    298, 
    227 S.E.2d 734
    , 735 (1976); see also Gosling v.
    Commonwealth, 
    7 Va. App. 642
    , 645, 
    376 S.E.2d 541
    , 544 (1989)
    (citations omitted).
    "It is the duty of the trial [judge], through the legal
    machinery provided for that purpose, to procure an impartial
    jury to try every case."     Salina v. Commonwealth, 
    217 Va. 92
    ,
    93, 
    225 S.E.2d 199
    , 200 (1976).     Code § 8.01-357 provides that
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    peremptory challenges are to be made from "a panel free from
    exceptions."   See also Justus v. Commonwealth, 
    220 Va. 971
    , 975,
    
    266 S.E.2d 87
    , 90 (1980).   In addition, "if [upon voir dire] it
    shall appear to the court that the juror does not stand
    indifferent in the cause, another shall be drawn or called and
    placed in his stead for the trial of that case."   Code
    § 8.01-358 (emphasis added).   Thus, by statutory mandate,
    Childress "has a right to an impartial jury drawn from 'a panel
    [of twenty] free from exceptions.'"    Breeden, 
    217 Va. at 300
    ,
    227 S.E.2d at 737.   Applying this mandate, the Supreme Court has
    held that "[i]t is prejudicial error for the trial [judge] to
    force [an accused] to use the peremptory strikes afforded [the
    accused] by Code § [8.01-357] . . . to exclude a [prospective
    juror] who is not free from exception."    Id. 1
    Initially, the prospective juror clearly stated he was
    unsure that he could be impartial in judging the testimony of a
    police officer.   When the prospective juror was recalled for
    further questioning, his rehabilitative responses were initiated
    by the trial judge's leading questions.   The rule is well
    1
    This statutory right is not diminished by the United
    States Supreme Court's recent holding that an accused is not
    denied a right protected by Fed. Rule Crim. Proc. 24(b) if he
    uses a peremptory strike to remove a juror the trial judge
    should have removed for cause. See United States v.
    Martinez-Salazar, ___ U.S. ___ (No. 98-1255, Jan. 19, 2000).
    Unlike our statutes, that Federal Rule does not guarantee a
    panel of prospective jurors that stands indifferent to the cause
    and free from exception.
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    established, however, that "'the proof that [a prospective
    juror] is impartial and fair, should come from him and not be
    based on his mere assent to persuasive suggestions.'"    Breeden,
    217 Va. at 300, 227 S.E.2d at 736 (citation omitted).
    "The true test of impartiality lies in the
    juror's mental attitude. Furthermore, proof
    that she is impartial must come from her
    uninfluenced by persuasion or coercion. The
    evidence used to show the requisite
    qualifications for impartial jury service
    must emanate from the juror herself,
    unsuggested by leading questions posed to
    her."
    David v. Commonwealth, 
    26 Va. App. 77
    , 81, 
    493 S.E.2d 379
    , 381
    (1997) (citations omitted).   Moreover, even after the
    rehabilitative effort, the prospective juror's "responses
    indicated a great degree of equivocation and created a
    reasonable doubt about [his] fitness as a juror."   Brown v.
    Commonwealth, 
    29 Va. App. 199
    , 208, 
    510 S.E.2d 751
    , 755 (1999).
    "[I]t is firmly established that doubts as to the impartiality
    of a juror must be resolved in favor of the accused."
    Educational Books, Inc. v. Commonwealth, 
    3 Va. App. 384
    , 387,
    
    349 S.E.2d 903
    , 906 (1986).
    We also note that when defense counsel sought to delve into
    the degree to which the prospective juror's mental attitude was
    formed by his former status as a law enforcement officer, the
    trial judge sustained the prosecutor's objection.   In so doing,
    the trial judge erred.   The question of the influence of the
    prospective juror's previous employment on his sympathies was
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    relevant because it addressed whether he "is sensible to any
    bias or prejudice."   Code § 8.01-358.   As we have previously
    held, a trial judge "should not . . . accept a [prospective
    juror's] bare declaration of impartiality without providing a
    means to assure that the expression reflects the person's true
    state of mind."   Griffin v. Commonwealth, 
    19 Va. App. 619
    , 622,
    
    454 S.E.2d 363
    , 364-65 (1995).    In view of the prospective
    juror's degree of equivocation, the inquiry was appropriate and
    should have been permitted.
    For these reasons, we hold that the trial judge erred in
    refusing to allow the inquiry and in denying Childress' motion
    to strike the prospective juror for cause.   We reverse the
    conviction and remand for a new trial.
    Reversed and remanded.
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