Terry Roger Skipper, etc. v. Commonwealth , 23 Va. App. 420 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
TERRY ROGER SKIPPER, S/K/A
TERRY ROGER SKIPPER, JR.
OPINION BY
v. Record No. 0667-95-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
Perry W. Sarver, Judge
David A. Downes for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial in the Circuit Court of Page County,
appellant, Terry Roger Skipper, Jr., was convicted of forcible
rape and forcible sodomy. Appellant was sentenced to twenty
years imprisonment on each charge, and the trial court suspended
ten years of the sodomy sentence. We awarded appellant an appeal
limited to the question "whether the trial court erred by
limiting voir dire of the jurors so as to deny appellant a fair
trial." Finding no error, we affirm.
I.
Appellant was charged with the forcible rape and forcible
sodomy of a sixteen-year-old female. On the morning of trial,
appellant's counsel filed a motion requesting that "the rights of
the venire be protected by enlarging the time and questions of
defense counsel during voir dire."
The court agreed with the contention of appellant's counsel
that effective voir dire could be accomplished only through
counsel's interaction with prospective jurors. See Code
§ 8.01-358. The court also stated that it would allow
appellant's counsel to ask any question "that has a tendency to
elicit whether or not a juror can be fair and impartial."
However, the court stated that it would not allow counsel to
conduct individual voir dire unless a juror's response required
it.
The court then requested counsel to submit their proposed
voir dire questions for the court to review and rule on out of
the presence of the jury. In so doing, the court intended to
preclude objections and arguments during the course of voir dire.
In addition to counsel's voir dire, the court stated that it
would ask the "traditional questions" from the judge's bench book
and would prepare a questionnaire for the jurors so that they
could privately address whether they or anyone in their family
had been the victim of sexual assault or had been accused of such
an offense. The court reiterated its practice of withholding
questions of individual jurors until it had received individual
responses. Appellant raised no objection to the court's proposed
procedure.
Appellant's counsel submitted four questions to the court,
the following two of which are at issue on appeal:
(1) Can anyone imagine why a not-guilty
person would not testify?
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(2) Who has children? For those with
children, have you ever caught them in a
lie to excuse what they were not
permitted to do?
The court ruled that the first question was too general and
refused to permit its presentation to the jury. In lieu of the
proffered question, the court stated that it would instruct
potential jurors that a defendant was not required to take the
stand, and it would ask whether that fact would affect the
jurors' ability to sit fairly and impartially. Appellant's
counsel declined the court's offer, stating that he wanted to ask
a broad question to determine the jurors' attitudes, beliefs, and
biases. The court ruled that the question as framed was
inappropriate. During voir dire, the court asked the potential
jurors whether they could accept and follow the law that the
defendant is not required to produce any evidence in the case.
The court stated that it did not understand the purpose of
the other question at issue. In response, appellant's counsel
proffered the defense's theory of the case: that the young victim
lied to her mother about having been sexually assaulted because
she had been engaged in prohibited conduct at the time of the
alleged offense. Appellant's counsel stated that he wanted to
ask individual follow-up questions to determine the circumstances
surrounding any lies told by the prospective jurors' children,
again intending to elicit juror "bias" or "prejudice." The court
refused the proposed question, finding that it was irrelevant to
determining the prospective jurors' ability to be fair and
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impartial. During voir dire, however, the court allowed
appellant's counsel to ask whether any potential jurors had
children. The court then asked the jurors with children whether
the fact that they had children would affect their ability to sit
fairly and impartially.
At the close of voir dire, appellant's counsel reiterated
his objection to the scope of voir dire. He argued that the
court's refusal to allow him to ask the questions as proffered
prevented him from inquiring into the prospective jurors'
"attitudes and beliefs" and, as a result, both he and the
Commonwealth could make their peremptory strikes only on the
basis of impermissible stereotypes in violation of J.E.B. v.
Alabama, __ U.S. __, 114 S. Ct. 1419 (1994). 1
II.
Appellant argues that the trial court's limitation on the
scope of voir dire denied him his right to trial by an impartial
jury under Article 1, § 8 of the Virginia Constitution 2 and the
3
Sixth Amendment of the United States Constitution . However,
1
At trial, appellant also objected to the Commonwealth's
peremptory strikes on the ground that they were gender-based in
violation of J.E.B. The trial court overruled appellant's
objection. Appellant limited his appeal to the following
question: "Whether the trial court erred by limiting voir dire of
the jurors so as to deny appellant a fair trial." Accordingly,
we decline to address whether the strikes violated J.E.B.
2
"[I]n criminal prosecutions a man . . . shall enjoy the
right to a . . . trial[] by an impartial jury . . . ." Va.
Const. art. I, § 8.
3
"In all criminal prosecutions, the accused shall enjoy
the right to a trial[] by an impartial jury . . . ." U.S. Const.
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appellant does not rely on the law developed under these two
constitutional provisions to support his argument. Rather,
appellant contends that the scope of voir dire is defined and
governed in this case by equal protection principles and rules
enunciated by the United States Supreme Court in Batson v.
Kentucky, 476 U.S. 79 (1986), and its progeny. Appellant argues
specifically that the trial court's limitation on voir dire in
the present case compelled the parties to make their peremptory
strikes based on impermissible stereotypes and, therefore,
violated his right to trial by an impartial jury.
In support of his position that equal protection principles
govern this case, appellant cites J.E.B. v. Alabama, __ U.S. __,
114 S. Ct. 1419 (1994), in which the United States Supreme Court
held that the Equal Protection Clause prohibits discrimination in
jury selection on the basis of gender. Specifically, appellant
posits his claim that equal protection principles govern this
court's review of claimed error made in conducting voir dire on
the following statement of the J.E.B. Court:
If conducted properly, voir dire can inform
litigants about potential jurors, making
reliance upon stereotypical and pejorative
notions about a particular gender or race
both unnecessary and unwise. Voir dire
provides a means of discovering actual or
implied bias and a firmer basis upon which
the parties may exercise their peremptory
challenges intelligently.
J.E.B., __ U.S. at __, 114 S. Ct. at 1429.
(..continued)
amend. VI.
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The language from J.E.B relied upon by appellant does not
support his contention. Rather, J.E.B. simply recognizes the
logical and practical consequence of Batson and its progeny; if
peremptory strikes must now be explained, it follows that voir
dire of the venire will be the primary tool by which parties will
gather information about the venire to explain their choices.
Moreover, in reviewing J.E.B. in its entirety, we find it does
not mandate a constitutionally grounded, expanded scope of voir
dire and does not displace, either explicitly or implicitly,
constitutional principles governing the scope of voir dire.
Indeed, the United States Supreme Court has specifically
underscored the distinction which must be made between Fourteenth
Amendment and Sixth Amendment principles as they apply to voir
dire. See Holland v. Illinois, 493 U.S. 474, 487 (1990).
That voir dire "plays a critical function" in ensuring juror
impartiality has long been recognized under Virginia law. See
Reynolds v. Commonwealth, 6 Va. App. 157, 164, 367 S.E.2d 176,
180 (1988) (citation omitted). The principles which govern the
review of error in the trial court's conduct of voir dire are
likewise well-established. See Turner v. Commonwealth, 221 Va.
513, 523, 273 S.E.2d 36, 42 (1980), cert. denied, 451 U.S. 1011
(1981) ("Unless the [court's] refusal to ask a question amounts
to a denial of due process or otherwise impinges upon the right
to a fair and impartial jury . . . a trial court [may] use its
discretion in determining whether to ask questions proposed by
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either the Commonwealth or the defendant") (citations omitted).
These principles require that a trial court "afford a party a
``full and fair' opportunity to ascertain whether prospective
jurors ``stand indifferent to the cause.'" Buchanan v.
Commonwealth, 238 Va. 389, 401, 384 S.E.2d 757, 764 (1989), cert.
denied, 493 U.S. 1063 (1990) (quoting LeVasseur v. Commonwealth,
225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), cert. denied, 464
U.S. 1063 (1984)).
However, proper limitations on a party's right to examine
prospective jurors may be imposed. "``[A] party has no right,
statutory or otherwise, to propound any question he wishes, or to
extend voir dire questioning ad infinitum.'" Chichester v.
Commonwealth, 248 Va. 311, 325, 448 S.E.2d 638, 647 (1994), cert.
denied, 115 S. Ct. 1134 (1995) (quoting LeVasseur, 225 Va. at
581, 304 S.E.2d at 653); see also Code § 8.01-358 (counsel has
right to ask "any relevant question to ascertain whether [a
prospective juror] is related to either party, or has any
interest in the cause, or has expressed or formed any opinion, or
is sensible of any bias or prejudice therein"). A trial court's
decision regarding the scope of voir dire is a matter committed
to the exercise of the trial court's discretion, which will be
upheld on appeal "[w]here [the trial court] affords ample
opportunity to counsel to ask relevant questions and where the
questions [it] actually propound[s] . . . [are] sufficient to
preserve a defendant's right to trial by a fair and impartial
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jury." Buchanan, 238 Va. at 401, 384 S.E.2d at 764. The
objecting party bears the burden of demonstrating that the trial
court abused its discretion in limiting the scope of voir dire,
see Chichester, 248 Va. at 325, 448 S.E.2d at 647, and must show
that the jury panel lacked impartiality or that the jury
selection process the court employed was prejudicial. See
Beavers v. Commonwealth, 245 Va. 268, 277, 427 S.E.2d 411, 418,
cert. denied, 510 U.S. 859 (1993). These principles remain
unchanged by J.E.B. and our decisions decided under it. See,
e.g., Riley v. Commonwealth, 21 Va. App. 330, 464 S.E.2d 508
(1995) (addressing Equal Protection principles, not whether scope
of voir dire was proper).
We find that the trial court's ruling with respect to
appellant's proposed questions did not deprive appellant of trial
by an impartial jury, nor did the selection process prejudice
appellant.
Trial courts are not required to allow
counsel to ask questions which are so
ambiguous as to render the answers
meaningless. To be permissible, counsel's
questions must be relevant in that they are
such as would necessarily disclose or clearly
lead to the disclosure of relationship,
interest, opinion, or prejudice.
Buchanan, 238 Va. at 401, 384 S.E.2d at 764 (citations omitted).
In Buchanan, the Supreme Court affirmed the trial court's
refusal to allow the defendant's counsel to ask the following
question: "From what you have read or heard about this case in
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the newspapers, what impression do you have about this case?"
Id. The Court explained its reasoning as follows:
To ask a prospective juror his impression of
a case may, through a circuitous route, lead
finally to a disclosure of opinion or
prejudice. But, as noted above, to be
relevant, a question to a prospective juror
must necessarily disclose or clearly lead to
the disclosure of opinion or prejudice. We
do not think the . . . question is of that
kind. It is ambiguous and unfocused. It
does not, for example, ask whether, based on
news coverage, the prospective juror had
formed an impression as to the defendant's
guilt or innocence, or an impression as to
whether defendant should or should not be
executed, or an impression as to whether
defendant was justified in his actions.
Instead, Buchanan's proposed question appears
to be an invitation to a rambling discourse
on a broad range of emotions. In short, the
start of a fishing expedition. However, to
launch upon a fishing expedition of a
prospective juror's general feelings about a
case is not the aim of voir dire. The
question was properly rejected.
Id. at 402, 384 S.E.2d at 765.
We adopt this reasoning in affirming the trial court's
action in the present case. Asking jurors whether they could
"imagine" why an accused would not take the stand is strikingly
similar to "an invitation to a rambling discourse on a broad
range of emotions." Id. We agree with the trial court that such
a question was ambiguous and unfocused and its rejection did not
deny appellant his right to an impartial jury. 4
4
Furthermore, the trial court inquired of the
prospective jurors whether they would be able to abide by the law
that appellant was not required to produce evidence in the case.
This inquiry was sufficient to ferret out a prospective juror's
inability to render a verdict unaffected by appellant's failure
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We also find no basis for appellant's contention that he was
denied an impartial jury because the trial court refused his
request to ask whether any prospective juror having children
"ever caught them in a lie to excuse what they were not permitted
to do," and under what circumstances. Appellant was permitted to
inquire as to which prospective jurors had children.
Additionally, the court inquired whether the fact that a juror
had children would affect that juror's ability to sit
impartially. While the question appellant proffered to the court
was related to his theory of the defense, we cannot say his
inquiry, framed so broadly, would "necessarily disclose or
clearly lead to the disclosure" of partiality, bias, or
prejudice.
In short, the record fully supports the trial court's
decision to refuse to allow appellant to ask the questions at
issue on appeal. 5 Nothing in the record suggests that the trial
(..continued)
to present evidence.
5
In his brief, appellant also complains that the trial
court "barred any interaction [between appellant's counsel and
the jury] unless the [voir dire] question was in writing,
previously approved by the Court, and, most likely, communicated
by the trial judge instead of the lawyer." As such, appellant
complains that he was precluded from asking other specific
questions. Appellant has no grounds to complain. See Rule
5A:18. The trial court asked that the proposed voir dire
questions be presented in writing for its review, to preempt
objections and arguments in front of the jury during voir dire.
Appellant did not object. Furthermore, appellant failed to raise
in the trial court the questions he now claims he was precluded
from asking. Finally, it is clear from the record that appellant
was not prevented from asking any relevant follow-up questions.
The court stated that it would allow appellant to ask any
question relevant to determining juror bias.
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court's limitation on the scope of voir dire denied appellant an
impartial jury.
Accordingly, we affirm appellant's convictions.
Affirmed.
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