Lester Frizzell Morris, s/k/a v. CW,Chesterfield Co ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
LESTER FRIZZELL MORRIS, S/K/A
LESTER FRIZZELL MORRISS
MEMORANDUM OPINION * BY
v. Record No. 0060-99-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 16, 2000
COMMONWEALTH OF VIRGINIA AND
COUNTY OF CHESTERFIELD
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Linwood T. Wells, III, for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellees.
A jury convicted Lester Frizzell Morris of grand larceny,
reckless driving, attempting to elude a police officer, and
driving on a suspended license. The defendant contends the
trial court erred by not striking a juror for cause. We
conclude that the trial court erred when it did not remove the
juror.
During voir dire the venire was asked if any members of
their families were law enforcement officers. David Morton
responded that his father was a police officer, and the voir
dire continued:
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
THE COURT: Would the fact that your father
is a police officer lead you to believe or
make you believe maybe the testimony of a
policeman over another person who might
disagree?
MR. MORTON: Not really.
THE COURT: Do you think you could be
impartial on the issues and decide on the
evidence presented here today?
MR. MORTON: Yes.
Following further questions, Mr. Morton volunteered that he
had worked with the Department of Corrections in Virginia for
eight and a half years. The defense counsel continued:
MR. WELLS: Does the fact that you have
worked as a state correctional officer, I
guess you've heard a lot of stories?
MR. MORTON: Pretty much.
MR. WELLS: Would that affect your
impartiality here this morning?
MR. MORTON: Somewhat.
MR. WELLS: Think it would?
MR. MORTON: Yes.
MR. WELLS: Do you think, in all honesty,
that you would probably not listen to the
evidence as fairly if you had not worked in
that setting?
MR. MORTON: Probably.
MR. WELLS: Thank you.
The court then concluded the questioning:
THE COURT: Do you think that you can put
aside all of those eight a half years of
what you heard and saw, and sit here today
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on this jury and listen to the evidence that
comes from that witness box, follow
instructions of the court, and render a fair
verdict both to the Commonwealth and to the
defendant? Do you think you can do that?
MR. MORTON: I can try.
THE COURT: If you'll try, that's all I ask
you to do.
When the trial court concluded, the defendant moved to
strike Juror Morton for cause. The trial court denied the
motion stating, "I'm satisfied with his answer." The defendant
noted his objection and later exercised a peremptory challenge
to remove the juror from the panel.
"The partiality or impartiality of an individual juror is a
factual issue best determined by the trial court." Watkins v.
Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985),
cert. denied, 475 U.S. 1099 (1986). "Since the court observes
the venireman, its finding is entitled to great weight and will
not be disturbed on appeal unless manifest error exists."
Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307 S.E.2d 896,
898 (1983) (citation omitted). See Vinson v. Commonwealth, 258
Va. 459, 467, 522 S.E.2d 170, 176 (1999); Faison v. Hudson, 243
Va. 397, 402, 417 S.E.2d 305, 308 (1992) (Batson challenge).
Whether manifest error exists is determined upon a review of the
entire transcript of the voir dire. See Calhoun, 226 Va. at
259, 307 S.E.2d at 898 (citation omitted). If there is
reasonable doubt about a juror's ability to give the defendant a
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fair and impartial trial, it should be resolved in favor of the
accused. See Justus v. Commonwealth, 220 Va. 971, 976, 266
S.E.2d 87, 90 (1980) (reasonable doubt requires positive
unequivocal testimony of bias), cert. denied, 455 U.S. 983(1982).
The facts of this case are very close to those in Clements
v. Commonwealth, 21 Va. App. 386, 464 S.E.2d 534 (1995). In
Clements, the court noted that the prospective juror spoke
honestly and showed no unwillingness to serve, but it also noted
the answers disclosed equivocation and revealed doubt that he
would be able to render a fair verdict. Of particular import
was the concluding statement that the juror "would try" to be
fair. See id. at 392, 464 S.E.2d at 537. That conclusion
indicated that the juror's knowledge might affect his decision,
and raised a reasonable doubt. For the same reasons, the
concluding remarks of Mr. Morton, "I can try," following
statements disclosing doubt and equivocation lead us to the same
result: there is reasonable doubt about the juror's ability to
be fair and impartial. The denial of the motion to strike Juror
Morton constituted error. Accordingly, we reverse the
convictions and remand the case.
Reversed and remanded.
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