Michael Anthony Winston v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
MICHAEL ANTHONY WINSTON
OPINION BY
v. Record No. 1000-99-2 JUDGE JAMES W. BENTON, JR.
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Maureen L. White for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Michael Anthony Winston of unlawful
wounding. On appeal, Winston contends the trial judge erred in
recalling to the venire panel a person whom the judge had
previously struck for cause. He also contends the trial judge
erred in denying his motion for a mistrial after a witness
testified that Winston committed prior bad acts. For the reasons
that follow, we reverse the conviction and remand for further
proceedings.
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
I.
The grand jury indicted Winston for malicious wounding, in
violation of Code § 18.2-51. Prior to trial, Winston made a
motion in limine to bar one of the Commonwealth's witnesses from
testifying about thefts, prior assaults, or other prior bad acts
committed by Winston. The trial judge denied the motion, ruling
that the purpose of the request was to sanitize the evidence.
A panel of twenty-two prospective jurors was assembled for
Winston's trial. During voir dire, the trial judge removed for
cause three prospective jurors, leaving only nineteen prospective
jurors from which to select a jury. When the trial judge
realized only nineteen prospective jurors remained, she informed
both counsel that the options were to either continue the trial
to another day or agree that one side would take one less strike.
Winston's counsel informed the judge that Winston wanted his
"statutory right to a panel of twenty." At the prosecutor's
suggestion, the judge reinstated to the panel a person who had
been removed for cause. The trial judge conditioned the
reinstatement of that person upon the prosecutor's agreement to
exercise his first strike to remove that person. After the trial
judge overruled Winston's objection, the prosecutor struck from
the panel the person who previously had been removed for cause.
At the trial, Isaac Squire testified that he and his wife
separated because he was using controlled narcotics. Squire's
wife then began a relationship with Winston. Over Winston's
objection, Squire testified that two months after the separation,
Winston telephoned Squire and threatened to kill Squire and
Squire's wife.
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Five months after their separation, Squire went to his
wife's home where Winston often stayed. Squire testified that
his wife had invited him and that he went there to settle things
peaceably. Winston answered the door wearing Squire's robe.
When Squire asked Winston to remove the robe and to leave the
house, Winston went upstairs and removed the robe. Winston
returned to the front door, where an argument between the two men
ensued. Squire testified that Winston pushed the door into
Squire's eye as Winston came outside. Squire testified that when
Winston said Squire's eye was swollen, he told Winston, "Swell my
eye like you swole my wife's eye." Referring to the motion in
limine, Winston's counsel objected to that testimony and moved
for a mistrial. The trial judge overruled the objection and
denied the motion for a mistrial.
Squire testified that he and Winston were threatening each
other. Squire also testified that he could not see Winston's
hands. Consequently, Squire pretended that he had a weapon by
putting his "hands behind [his] back like [he] had something."
During the argument, Squire told Winston he did not have a weapon
and displayed his hands. Winston did the same. The men then
fought with their fists. Squire testified that he began to walk
away and that Winston walked toward the house. Squire said he
returned after Winston verbally provoked him. They resumed the
fistfight and the fighting "got rough." Squire testified that
during the fight he saw a pair of scissors in Winston's hand. As
he tried to get away, Winston stabbed him in the back with the
scissors.
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A police officer testified that she interviewed Squire at
the hospital where he was treated for a stab wound. Later, she
arrested Winston and recovered a pair of scissors. Another
officer testified that Winston had a large bandage on his back
that was "two by two inches."
Winston testified that he had lived with Squire's wife for
six months. He testified that Squire had previously threatened
him. On the day Squire came to the house, Squire, a bigger man,
was acting aggressively with his hand behind his back. Winston
said he grabbed scissors because he believed Squire had a weapon.
Squire threatened to kill him, pulled him out the door, and had a
sharp piece of metal in his hand. During the fight, he stabbed
Squire with the scissors.
At the conclusion of the evidence at the guilt phase, the
trial judge invited Winston's counsel to proffer "any reason you
think [Winston] was prejudiced by the Court's action in allowing
the Commonwealth to strike [the person who was reinstated on the
panel]." Winston's counsel did not make such a proffer. The
jury convicted Winston of unlawful wounding.
II.
In pertinent part, Code § 8.01-357 provides that "[o]n the
day on which jurors have been notified to appear, jurors not
excused by the court shall be called in such manner as the judge
may direct to be sworn on their voir dire until a panel free from
exceptions shall be obtained." (Emphasis added). In addition,
Code § 8.01-358 provides as follows:
The court and counsel for either party shall
have the right to examine under oath any
person who is called as a juror therein and
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shall have the right to ask such person or
juror directly any relevant question to
ascertain whether he 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;
and the party objecting to any juror may
introduce any competent evidence in support
of the objection; and if 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.
(Emphasis added). "Twelve persons from a panel of twenty shall
constitute a jury in a felony case." Code § 19.2-262(2).
These statutes guarantee an accused the right to a panel of
twenty potential jurors who are "free from exceptions" and "stand
indifferent in the cause." Justus v. Commonwealth, 220 Va. 971,
975-76, 266 S.E.2d 87, 90 (1980). Virginia law is unequivocal
that "[i]t 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); see also Va. Const. art. I, § 8.
The Commonwealth concedes that the trial judge erred in
restoring to the panel the person who earlier was removed for
cause; however, the Commonwealth argues that the error was
harmless. We disagree. The principle is ancient that the
"statutory requirements for impaneling jurors are mandatory."
Kennedy v. Commonwealth, 168 Va. 721, 726, 191 S.E. 634, 635-36
(1937). Thus, any "departure from a strict observance of the
statutory provisions," when done "over the protest of the accused
. . . constitutes reversible error." Elkins v. Commonwealth, 161
Va. 1043, 1047, 171 S.E. 602, 603 (1933). Applying these
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principles in Breeden v. Commonwealth, 217 Va. 297, 298, 227
S.E.2d 734, 735 (1976), the Supreme Court held that reversible
error occurred when the accused was denied "a right to an
impartial jury drawn from 'a panel [of twenty] free from
exceptions.'" Id. at 300, 227 S.E.2d at 737 (citation omitted).
This violation of Winston's statutory right to a panel of
twenty jurors "free from exception" was presumptively
prejudicial. The trial judge reinstated to the panel a person
who was not impartial and free from prejudice. The potential
juror's presence on the panel denied Winston the opportunity to
have another impartial person selected to sit as a juror. That
additional juror may not have been struck by the prosecutor if a
full panel of twenty potential jurors had been provided.
Indeed, we have held that "where [an accused], as here, . . .
elects to stand on the statutory mandate of a panel of twenty
jurors, . . . he is entitled to a full panel of impartial jurors
and may not be required to accept a lesser number simply because
the Commonwealth agrees to waive one or more of its peremptory
strikes." Fuller v. Commonwealth, 14 Va. App. 277, 281-82, 416
S.E.2d 44, 47 (1992).
The Commonwealth contends that by exercising one of its
peremptory strikes against the biased potential juror, it removed
any prejudice to Winston and cured any error which occurred when
the trial judge re-seated the person she had stricken for cause.
We addressed a similar issue in DeHart v. Commonwealth, 19 Va.
App. 139, 449 S.E.2d 59 (1994). The trial judge had refused to
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strike for cause a potential juror, who, when asked "whether she
would base her decision on what she had read in the newspapers, .
. . replied that she 'would try not to, but I can't honestly say
I wouldn't use it because it is in my mind.'" Id. at 140, 449
S.E.2d at 60. As in this case, the Commonwealth contended that
DeHart was not prejudiced because the Commonwealth's attorney
used a peremptory strike to remove the potential juror. See id.
at 142, 449 S.E.2d at 60. Rejecting that argument, we held upon
rehearing as follows:
Had [the potential juror] been replaced by a
venireman who was free from exception, the
Commonwealth might have used the peremptory
strike exercised against [the potential
juror] to remove a venireman who actually
served on the jury. Thus, the composition
of the jury panel that tried DeHart would
have been different. This denial of his
right to a jury chosen from a statutorily
prescribed panel of twenty free from
exception cannot be deemed non-prejudicial.
DeHart v. Commonwealth, 20 Va. App. 213, 216, 456 S.E.2d 133, 134
(1995) (citation omitted).
Citing Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670(1994), the Commonwealth argued in DeHart that its use of a
peremptory strike to remove the potential juror rendered the
error harmless. See 20 Va. App. at 214, 456 S.E.2d at 134. The
Commonwealth raises that same issue again in this case and
rehashes the argument that we unanimously rejected in DeHart. As
we said in DeHart:
The Supreme Court based its holding on
Breard's failure to lodge a proper
objection. While the holding did not cite
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Rule 5:25, it fell within the ambit of that
rule. The statement relied upon by the
Commonwealth addressed the applicability of
the ends of justice exception to the
operation of the rule.
20 Va. App. at 215, 456 S.E.2d at 134. This "ends of justice
analysis" under Rule 5:25 is not the same as a harmless error
analysis. See Brown v. Commonwealth, 8 Va. App. 126, 131, 380
S.E.2d 8, 10 (1989) (explaining that the "ends of justice"
exception is only applied "where the error has resulted in
manifest injustice"). Indeed, neither the Supreme Court nor
this Court has ever engaged in a harmless error analysis
concerning an error of this nature. See e.g., Medici v.
Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (June 9,
2000) (holding that the trial judge's failure to strike for
cause a prospective juror whose husband's murderer was
represented by Medici's counsel's employer was reversible
error).
Because this issue falls squarely within our prior
decision, DeHart controls the resolution of this case.
Accordingly, we hold that the procedure deprived Winston of a
fundamental statutory right and constituted reversible error.
III.
Winston's motion in limine raised the concern that Squire
would testify about previous incidents in which Squire claimed
Winston committed bad acts. At trial, while explaining the
events that occurred before the fight, Squire testified
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concerning an accusation that Winston had caused physical harm
to Squire's wife.
"Evidence that shows or tends to show [an accused] has
committed a prior crime generally is inadmissible to prove the
crime charged." Guill v. Commonwealth, 255 Va. 134, 138, 495
S.E.2d 489, 491 (1998). On the other hand, such evidence "is
relevant and admissible if it tends to prove any element of the
offense charged." Id. Yet, as we have noted, "the fact that
evidence of other crimes is relevant does not end the inquiry as
to whether it was admissible. In order for relevant evidence,
which has prejudicial aspects, to be admissible, its probative
value must outweigh its prejudice." Rodriguez v. Commonwealth,
18 Va. App. 277, 282, 443 S.E.2d 419, 423 (1994). In addition,
we have also noted that "[t]he prejudicial effect of the
evidence of other crimes [may be] limited by the instructions of
the court to the jury . . . [delimiting] the jury's use of the
evidence to that which was permissible and prohibited its use
for any other purpose." Id.
In this case, the jury was required to determine Squire's
and Winston's credibility. Thus, the admission of Squire's
testimony about Winston's prior conduct causing the swelling of
Squire's "wife's eyes" may have unfairly undermined Winston's
credibility with the jury. On the other hand, the evidence had
some tendency to prove the cause of the fight. On remand, the
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trial judge is directed to consider the admissibility of the
evidence in light of the principles here discussed.
For these reasons, we reverse the conviction and remand the
case for further proceedings.
Reversed and remanded.
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