Zackary Anthony Carter, s/k/a, etc. v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Norfolk, Virginia
ZACKARY ANTHONY CARTER, S/K/A
ZACKERY ANTHONY CARTER
MEMORANDUM OPINION * BY
v. Record No. 2862-97-1 JUDGE JAMES W. BENTON, JR.
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Melinda R. Glaubke (Thomas L. Watkins, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Zackery Anthony Carter of murder in the
second degree and use of a firearm in the murder. Carter
contends that the trial judge erred in refusing to strike for
cause seven jurors. Because we conclude that one of the jurors
should have been excused for cause, we reverse the convictions
and remand for a new trial.
The right to a trial by "an impartial jury" is guaranteed by
both the United States and Virginia Constitutions. See U.S.
Const. amends. VI and XIV; Va. Const. art. I, § 8.
"[A prospective juror] must be able to give
[the accused] a fair and impartial trial.
Upon this point nothing should be left to
inference or doubt. All the tests applied by
the courts, all the enquiries made into the
state of the juror's mind, are merely to
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
ascertain whether [the juror] comes to the
trial free from partiality and prejudice."
Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735
(1976) (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941,
943 (1879)).
In determining whether a juror's responses during voir dire
have indicated an impartial state of mind, we must view those
responses within the context of the entire voir dire of that
juror. Sizemore v. Commonwealth, 11 Va. App. 208, 212, 397
S.E.2d 408, 411 (1990). If the voir dire establishes that the
juror "holds a preconceived view that is inconsistent with an
ability to give an accused a fair and impartial trial, or . . .
persists in a misapprehension of law that will render [the juror]
incapable of abiding the court's instructions and applying the
law, [the trial judge] must . . . exclude[] [the juror] for
cause." Id. at 211, 397 S.E.2d at 410.
The principle is well established that "[t]o qualify as a
juror, a venireman must 'stand indifferent in the cause' and any
reasonable doubt regarding [the juror's] impartiality must be
resolved in favor of the accused." Barker v. Commonwealth, 230
Va. 370, 374, 337 S.E.2d 729, 732-33 (1985) (citation omitted).
"If there be a reasonable doubt whether the
juror [is impartial and free from prejudice],
that doubt is sufficient to insure [the
juror's] exclusion. For . . . it is not only
important that justice should be impartially
administered, but it should also flow through
channels as free from suspicion as possible."
Breeden, 217 Va. at 298, 227 S.E.2d at 735 (citation omitted).
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When examined on voir dire, the venireman DeWoody stated
that he was informed about the case from both television and the
newspapers. DeWoody recognized Carter from the media exposure
and was able to recall with significant detail certain events
that occurred around the time of the killing. DeWoody also
recalled from television reports that an earlier trial ended
because of "a mistrial," stating "I believe it was a hung jury."
When asked if he could recall whether he had formed any opinion
as to guilt or innocence, DeWoody responded "Guilt. It is how it
was portrayed in the media. They don't usually do both sides."
When asked if he could put out of his mind the reports he had
seen about the case, DeWoody said, "As best I can, yes."
DeWoody also responded as follows to a series of questions:
[COUNSEL]: Do you understand the defendant
does not at any time throughout the entire
trial have to put on any evidence to prove
his innocence?
[DEWOODY]: Yes.
[COUNSEL]: Would you expect the defendant to
present some evidence on his own behalf to
prove his innocence?
[DEWOODY]: Yes.
[COUNSEL]: Again, with that idea in mind --
and, again, this is one of those areas I just
have to ask you -- knowing this is the law,
how do you really feel about it is what we
are getting at? You would expect a defendant
to prove to you in some fashion that he did
not commit the crime?
[DEWOODY]: Yes.
[COUNSEL]: Even though you are told the law
is he doesn't have to?
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[DEWOODY]: Yeah.
[COUNSEL]: Would that law be difficult for
you to follow, if not impossible, for you to
follow?
[DEWOODY]: I don't think so. Just
preconceived notions.
[COUNSEL]: So you would think -- if I'm
putting words in your mouth, tell me. You
would think if a person was innocent, they
would prove that to you?
[DEWOODY]: Yes.
No further inquiries were made in this area.
In Breeden, where a prospective juror affirmatively
indicated that she expected the defendant to prove his innocence,
the Supreme Court ruled that her response "was not so much a
symptom of her ignorance of the law as a candid reflection of the
state of her mind concerning [the defendant's] guilt." Id. at
300, 227 S.E.2d at 736. We believe that the same can be said of
DeWoody's responses that he expected Carter to present evidence
and to prove his innocence. Although DeWoody acknowledged that
the law did not require Carter to put on evidence to prove his
innocence, DeWoody clearly indicated that he expected an innocent
person to put on evidence that proved that person's innocence.
"'The opinion entertained by a juror, which disqualifies
him, is an opinion of that fixed character which repels the
presumption of innocence in a criminal case, and in whose mind
the accused stands condemned already.'" Justus v. Commonwealth,
220 Va. 971, 976, 266 S.E.2d 87, 91 (1980) (citation omitted).
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Indeed, we have ruled that when a prospective juror "harbor[s]
the . . . expectation that one accused and charged of criminal
wrongdoing will produce evidence to prove his or her innocence
. . . , unless the record affirmatively establishes that the
juror['s] expectations of the defendant were not fixed, we must
assume that the [juror was] seated while continuing to harbor the
view that the defendant must prove his [or her] innocence, a
disqualifying bias." Sizemore, 11 Va. App. at 212, 397 S.E.2d at
410-11.
DeWoody had specific knowledge of the case from the news
media, had formed an opinion of guilt based on that information,
and believed that Carter would have to put on some evidence to
prove his innocence. DeWoody's opinion clearly expressed a state
of mind "that is clearly at odds with an accused's presumption of
innocence and his [or her] right not to have to produce evidence
to establish his [or her] innocence." Id. at 212, 397 S.E.2d at
410. When a juror has expressed such a state of mind, that juror
has raised a reasonable doubt about his or her ability to stand
impartially. Thus, we hold that the trial judge, in concluding
that DeWoody was qualified, did not discharge the "affirmative
duty to secure an impartial jury for the parties." Educational
Books, Inc. v. Commonwealth, 3 Va. App. 384, 390, 349 S.E.2d 903,
908 (1986).
Because the trial judge erred by not striking DeWoody from
the jury, we need not address Carter's contention that the trial
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judge erred by not striking any of the other six jurors. For the
reasons we have stated, we reverse the convictions and remand for
a new trial.
Reversed and remanded.
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