Barrett v. Commonwealth

542 S.E.2d 23 (2001) 34 Va. App. 374 Calvin Lee BARRETT v. COMMONWEALTH of Virginia. No. 1829-99-2. Court of Appeals of Virginia. February 27, 2001. Stephen C. Harris, Louisa, for appellant. Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. *24 Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS and CLEMENTS, JJ., and COLEMAN, Senior Judge.[*] UPON A REHEARING EN BANC ANNUNZIATA, Judge. On June 8, 1999, Calvin Lee Barrett was convicted by a jury of assaulting a police officer in violation of Code § 18.2-57(C) and driving after having been adjudicated an habitual offender, second or subsequent offense, in violation of Code § 46.2-357. He was sentenced to prison terms of three years and five years, respectively. Barrett claims the trial court erred in refusing to grant his motion to strike for cause from the jury the brother of one of the Commonwealth's witnesses. On May 16, 2000, a panel of this Court affirmed Barrett's convictions. Upon a rehearing en banc, we affirm. FACTS On December 17, 1998, Barrett was operating an automobile in the City of Charlottesville. He was observed by Virginia State Trooper J.S. Fleming, who noted that the vehicle had an expired license tag and a broken left rear taillight lens held in place with duct tape. Fleming followed Barrett, turned on the blue strobe lights on top of his police cruiser, but did not sound the siren. Barrett pulled his vehicle into a small parking lot, opened his door, and began to walk away from the vehicle. When Fleming "hollered" for Barrett to stop, Barrett continued to move away from the officer. Fleming followed, took Barrett's arm, and escorted him toward the police cruiser. Barrett broke away from the officer, and a series of struggles ensued as Fleming unsuccessfully attempted to arrest Barrett. Ultimately, as the situation escalated, Fleming drew his service weapon. Barrett re-entered his vehicle and backed up, hitting Fleming's cruiser before moving forward. Fleming, having seized Barrett through the window of the car with one arm, held on as the vehicle moved. When Barrett began to drive the car forward, Fleming shot Barrett in the chest. Charlottesville Police Officer Charles Wade arrived on the scene after the incident had ended. Other Charlottesville police officers were already present. Officer Wade saw Fleming seated in the rear of a marked Charlottesville police cruiser and Barrett lying on the ground. Officer Wade assisted in the investigation of the scene by putting up the yellow "DO NOT ENTER" tape to secure the crime scene and by examining the area for physical evidence. Barrett was taken to the University of Virginia Hospital, where he was treated for the gunshot wound. On December 20, 1998, he was arrested at the hospital on the charges for which he was subsequently convicted. During voir dire, defense counsel asked a series of questions to prospective juror James Wade. After establishing that Wade's brother was expected to be one of the Commonwealth's witnesses, he was asked, "if your brother were to take the stand and testify for the Commonwealth, and if my client took the stand and testified, wouldn't it be a natural ... wouldn't it be natural for you to give your brother's testimony more weight than someone else you didn't know of that was accused of a crime?" Wade responded, "I'm an impartial person." In a subsequent query, defense counsel asked, "[W]ouldn't there be a tendency for you, no matter how hard you tried to be impartial, to give your brother, the police officer's testimony at least a little bit more credibility and believability than somebody like my client, Calvin Barrett, who you don't know and who's accused of serious crimes?" To this question, Wade answered, "Truthfully, yes." The same question, rephrased, was posed again several times by defense counsel, to which Wade responded, in essence, that he could put aside his relationship with the witness and arrive at a fair and impartial verdict. He explained his earlier answer by stating that, while by "instinct" he would *25 probably tend to favor his brother's testimony, he was certain he could put it aside and be impartial. See Appendix, infra. Defense counsel's motion to strike James Wade for cause was denied. ANALYSIS "Per se rules of disqualification which are based on 'a presumption of [juror] bias or prejudice,' are disfavored in Virginia." McGann v. Commonwealth, 15 Va.App. 448, 454, 424 S.E.2d 706, 710 (1992) (quoting Scott v. Commonwealth, 1 Va.App. 447, 452, 339 S.E.2d 899, 901 (1986)); see Williams v. Commonwealth, 21 Va.App. 616, 466 S.E.2d 754 (1996) (en banc) (a venireman who worked as a correctional officer was not per se disqualified from being a juror in a case where the defendant was charged with assaulting a correctional officer). We noted in Williams that "[a] per se rule in Virginia has been approved only where the venireman knew of an accused's prior conviction for the same offense; stood in a near legal relationship to the victim of the accused; or was a part owner of a victim bank," the relevant question being whether the juror could be fair and impartial. 21 Va.App. at 618-19, 466 S.E.2d at 756. In two recent cases decided by the Virginia Supreme Court, preserving public confidence in the integrity of jury trials was noted as an additional consideration in determining the propriety of retaining a prospective juror among the venire, even when the individual's responses to voir dire evidence the absence of any potential bias or prejudice against either side and established the juror's ability to render a fair and impartial verdict. Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (2000); Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000). In both Cantrell and Medici, the juror's relationship to counsel for one of the parties was given preclusive effect on public policy grounds.[1] In the case before us, the close familial relationship between the juror in question and a police officer who was an anticipated witness in the case arguably raises policy considerations similar to those underlying the decisions in Cantrell and Medici. However, we find that the question here is controlled by the Virginia Supreme Court's decision in Lilly v. Commonwealth, 255 Va. 558, 569-70, 499 S.E.2d 522, 531 (1998), rev'd and remanded on other grounds, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117, on remand, 258 Va. 548, 523 S.E.2d 208 (1999). In Lilly, the Supreme Court of Virginia held that when the officer's sole role in a criminal prosecution is as a witness, he is not a "party" . . . . Thus, a juror's relationship to such a police officer-witness does not require per se dismissal of that juror from the venire, and the juror may be retained if the trial court is satisfied that the juror can set aside considerations of the relationship and evaluate all the evidence fairly. Id. (citations omitted). See also Core v. Core's Adm'rs, 139 Va. 1, 12-13, 124 S.E. 453, 456 (1924).[2] *26 "[T]he trial court's exercise of judicial discretion in deciding challenges for cause will not be disturbed on appeal, unless manifest error appears in the record." Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987). This deference is afforded because "the trial judge has the opportunity, which [the appellate court] lack[s], to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand . . . " Id. In reviewing the trial court's determination of the question, "the entire voir dire must be examined, not just isolated statements." Chrisman v. Commonwealth, 3 Va.App. 371, 373, 349 S.E.2d 899, 901 (1986) (citations omitted). The voir dire of James Wade, in its entirety, makes clear that he could set aside his relationship to the officer-witness and fairly try the case. James Wade did not discuss the case with his brother at any time. When asked if he would be unduly swayed by his relationship to Officer Charles Wade, or whether he would favor or tend to believe his brother's testimony because of the relationship, he responded in the negative, stating, "I'm an impartial person." He stated repeatedly that he could put aside the relationship. Furthermore, as we noted in Mullis v. Commonwealth, 3 Va.App. 564, 572, 351 S.E.2d 919, 924 (1987), where "[t]he degree of impact which credibility issues played in the case as a whole was minimal and could have had very little significance on the jury's resolution of the case," it is not manifest error to seat a juror who indicates that he would tend "to give some weight to the fact that a witness was a police officer in resolving credibility issues if all else were equal." Here, Officer Wade's credibility was not in question, and he was not even cross-examined by Barrett's counsel. See Brown v. United States, 338 F.2d 543, 545 (D.C.Cir. 1964) (appropriate for court to consider whether credibility of witness will be at issue in case); cf. Core, 139 Va. at 13, 124 S.E. at 456 (where credibility of witness to be determined by jury, proper to strike prospective juror who was brother of that witness). In addition, his testimony was not material to Barrett's conviction, therefore the trial judge did not abuse his discretion in seating James Wade. Cf. Simpson v. State, 666 So.2d 100 (Ala.Cr.App.1995); Tucker v. State, 454 So.2d 552 (Ala.1984); State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974). In sum, we hold that the record clearly shows that the trial court did not abuse its discretion in refusing to strike James Wade for cause. Accordingly, we affirm the court's decision. Affirmed. APPENDIX The relevant portion of the voir dire to which Wade responded is as follows: [DEFENSE COUNSEL]: Mr. Wade, your brother is one of the Commonwealth's witnesses? MR. WADE: Yes. [DEFENSE COUNSEL]: A Charlottesville police officer. How long has he been a policeman in Charlottesville? MR. WADE: Twenty-four, twenty-five years. * * * * * * * [DEFENSE COUNSEL]: Okay. Did you and your brother, who is a Charlottesville policeman who is one of the Commonwealth's witnesses here today, and what is his name by the way? MR. WADE: Charles, Charlie. [DEFENSE COUNSEL]: Charlie Wade. Did you ever discuss the facts of this incident with your brother? MR. WADE: No. * * * * * * * [DEFENSE COUNSEL]: I think my question to you would be this, based on . . . having your brother, Charlie Wade, as one of the Commonwealth's witnesses, a long time Charlottesville Police Department [sic], if your brother were to take the stand and testify for the Commonwealth, and if my client took the stand and testified, wouldn't it be a natural . . . wouldn't it be natural for you to give your brother's testimony more weight than someone else you didn't know of that was accused of a crime? *27 MR. WADE: Are you asking me would I or would it be natural? [DEFENSE COUNSEL]: How does that apply to you? MR. WADE: I'm an impartial person. [DEFENSE COUNSEL]: Yes sir, and I understand that you would . . . if you're allowed to serve on this jury you would take an oath and do your best to abide by [sic]. My question to you is recognizing that we all have feet of clay, and that we're human beings, wouldn't there be a tendency for you, no matter how hard you tried to be impartial, to give your brother, the police officer's testimony at least a little bit more credibility and believability than somebody like my client, Calvin Barrett, who you don't know and who's accused of serious crimes? MR. WADE: Truthfully, yes. * * * * * * * [PROSECUTOR]: Is that something that in knowing that a juror is required to put aside the question of acquaintance or relationship, is that something you can do? Put aside your acquaintance with officers, your relationship with them? MR. WADE: Yes. [PROSECUTOR]: And do you have any question in your mind about that? MR. WADE: No, sir. [PROSECUTOR]: Are you hesitant in your feeling about whether you can put aside your acquaintance and relationship with . . . MR. WADE: I'm not hesitant of that. * * * * * * * [DEFENSE COUNSEL]: Well, I've got a. . . I'll just ask you the same question all over again. You remember my question? MR. WADE: You asked me if it was . . . I think what you're getting at is you're asking me whether there's any likelihood or the vaguest little bit of favoritism. [DEFENSE COUNSEL]: Is it possible that you will favor, even a little bit, your brother's testimony over my client or some witness for him who's not a policeman who you don't know? MR. WADE: That's not the way you asked me the first time as I recall. [DEFENSE COUNSEL]: All right, well what's your answer to this question? MR. WADE: My answer is ... would be, the way you just now stated it, would be no. [DEFENSE COUNSEL]: All right. What do you recall my first question be [sic] to you? [PROSECUTOR]: Judge, I'm going to ask that, that the juror be asked a question, not what do you recall my last question to be. I think that's not an appropriate question. THE COURT: Well, I've got some real concern about it, so maybe if I could pick up on it at this point. [DEFENSE COUNSEL]: Yes, sir, please do. THE COURT: I understand you to say, sir, that you would have some problem deep down if there was a question of your brother's credibility or a police officer's credibility versus somebody you didn't know taking the stand. MR. WADE: I did ... when he initially asked me that question, the way he phrased it to me initially I did say [sic]. But then he asked it in a different way as far as if I would show any partiality on my brother's testimony, and my answer would be no. THE COURT: All right, now maybe I'm not understanding your answer now. I mean, are you saying that you wouldn't deep down have any problem, in other words that it would not present a problem to you? MR. WADE: My brother's testimony, being my brother, as far as his testimony, would not create a problem for me. THE COURT: In other words you wouldn't have a tendency to believe your brother over somebody else you didn't know or a non police officer? MR. WADE: I don't think I would, no, sir. THE COURT: All right, sir. All right, now, any follow up? [DEFENSE COUNSEL]: What about whether it was your brother or some other *28 police officer that you know or the fact that it's a Virginia State Trooper who's going to be one of the prime witnesses against my client, does their credibility in your eyes have any variance? MR. WADE: No, sir. * * * * * * * [DEFENSE COUNSEL]: What did you have a ... why did you answer the way you did when I asked the first question that you said there may be a problem? MR. WADE: You stated, you stated your first question in respect to my testimony because of my feelings as far as my brother's testimony, you asked in a two fold [sic]. [DEFENSE COUNSEL]: All right. MR. WADE: And the second part is when you went in ... you asked a question initially, and then you went in and started emphasizing the fact more deeply as what I interpreted what you were trying to get from me because of my relationship with Officer Wade. [DEFENSE COUNSEL]: All right. MR. WADE: But I also stated that his testimony would not, his testimony I would judge just like I would Sergeant Payne's or Officer West, with whom I know [sic], Officer Bishop I know. I would listen to their testimony and take judgment of that. [DEFENSE COUNSEL]: My question, my question is why did you say there might be a problem in any way because of my question? What was the problem that I brought up that you agreed with? MR. WADE: I cannot word for word quote to you how you put it, but you asked me the question and I answered you initially that it would not affect my judgment. And then you said in the most instinct or distinct way as far as something, and I said well, it probably would. [DEFENSE COUNSEL]: All right, then following up with that, isn't it possible, because of your brother being the police officer and being the Commonwealth's witness, that in spite of your best efforts, something, partiality wise or believability wise, will creep in to your filtering and thinking about the evidence in the case if you're allowed to sit as a juror that may be unfair to my client? MR. WADE: No. COLEMAN, J., with whom FITZPATRICK, C.J., BENTON, and ELDER, JJ., join, dissenting. The sole issue in this appeal is whether the trial judge abused his discretion in refusing to strike for cause a prospective juror whose brother is a police officer and was one of the Commonwealth's witnesses in the case. The majority concludes that the trial judge did not abuse his discretion by refusing to strike the prospective juror for cause. I respectfully disagree. The case involved the prosecution of Calvin Lee Barrett for felonious assault on a police officer, Virginia State Trooper J.S. Fleming. Trooper Fleming had stopped Barrett's vehicle after having observed license tag and equipment violations. After being stopped, Barrett attempted to flee the scene which resulted in Fleming having to forcibly apprehend Barrett. The situation escalated when Barrett reentered his vehicle and attempted to drive away with Fleming holding onto Barrett's arm through the vehicle window. Trooper Fleming, who had drawn his service weapon, shot Barrett in the chest as he attempted to drive away. After Barrett was apprehended, he was determined to have been an habitual offender and to have been previously convicted of operating a motor vehicle after having been adjudicated an habitual offender. Thus, he was also being prosecuted in this case for feloniously operating a motor vehicle after having been adjudicated an habitual offender, second or subsequent offense. It is from this backdrop that jury voir dire was conducted and that the challenged juror was seated as a member of the venire. In my opinion, to allow a juror to sit in judgment of a criminal defendant who is charged with feloniously assaulting a police officer, where the juror's brother is a police officer and a prosecution witness in the case, creates an unacceptable public image and impression of unfairness and partiality. "[C]ourts have an independent interest in *29 ensuring that criminal trials are conducted this within ... standards . . . that ... appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). "Public confidence in the integrity of the process is at stake." Cantrell v. Crews, 259 Va. 47, 51, 523 S.E.2d 504 (2000). In my opinion, the trial judge abused his discretion by seating a prospective juror whose impartiality and objectivity were, under these circumstances, in serious doubt. "[T]he right of an accused to trial by `an impartial jury' is a constitutional right, reinforced by legislative mandate, [Code §§ 8.01-357 and 19.2-262], and by the Rules" of Court. Justus v. Commonwealth, 220 Va. 971, 975-76, 266 S.E.2d 87, 90 (1980). Every prospective juror must stand indifferent to the cause, "and any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused." [Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).] "If there be a reasonable doubt whether the juror possesses these qualifications, that doubt is sufficient to insure his exclusion. For, as has been well said, it is not only important that justice should be impartially administered, but it also should flow through channels as free from suspicion as possible." Id. (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)). Clements v. Commonwealth, 21 Va.App. 386, 392, 464 S.E.2d 534, 537 (1995) (emphasis added). The majority concludes that the Supreme Court's decision in Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (1998), rev'd and remanded on other grounds, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117, on remand, 258 Va. 548, 523 S.E.2d 208 (1999), controls this case. In Lilly, the Virginia Supreme Court held that "a juror's relationship to ... a police officer-witness does not require per se dismissal of that juror from the venire, and the juror may be retained if the trial court is satisfied that the juror can set aside considerations of the relationship and evaluate all the evidence fairly." Id. at 570, 499 S.E.2d at 531. In Lilly, the only basis for challenging the juror's impartiality was that the juror was a second cousin of the police officer-witness. As the majority notes, "[pier se rules of disqualification, which are based on `a presumption of [juror] bias or prejudice,' are disfavored in Virginia." McGann v. Commonwealth, 15 Va.App. 448, 454, 424 S.E.2d 706, 710 (1992) (citation omitted). As we noted in Williams v. Commonwealth, 21 Va. App. 616, 618-19, 466 S.E.2d 754, 756 (1996) (en banc ), the Supreme Court has recognized very limited bases for per se juror disqualification. Relying upon the statement in Lilly that per se disqualifications are disfavored, the majority apparently concludes that regardless of the degree of kinship between a challenged juror and a witness, we are required to reject a per se disqualification based on degree of kinship. I do not read the holding in Lilly so broadly. While per se disqualifications are disfavored, in my opinion, the teachings of the Supreme Court's decisions in Cantrell and Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), would support a holding that a very close familial relationship between a juror and a prosecution witness constitutes a per se disqualification in order to preserve and promote public confidence in our jury system. Therefore, while I would favor adopting a per se rule of disqualification where a prospective juror's brother is going to be a prosecution witness,[3] nevertheless, I would reverse because, *30 cause, in my opinion, on the facts of this case the trial judge abused his discretion by seating juror Wade. Although on review great deference must be accorded a trial judge's decision to seat a juror, in my opinion, on the facts of this case, the judge abused his discretion by refusing to remove juror Wade from the venire. Here, the juror, after indicating that "truthfully" he would give more credibility to his brother's testimony than he would the defendant, later reiterated several times that he was "an impartial person." The trial judge, stating that he had "some real concern" about the situation, intervened in questioning juror Wade and, after obtaining assurances from him that he was impartial, seated Wade as a member of the venire. As the Supreme Court recognized in Breeden, situations exist where regardless of the "assertions of the veniremen " that they could give the defendant a fair trial[, their assurances] did not purge the taint." 217 Va. at 298, 227 S.E.2d at 735 (citation omitted). Reversing the trial judge's seating of the juror in Breeden, the Court reiterated the standing principle stated "by Judge Scott in Armstead's case 11 Leigh, 663, [that] "however, willing the juror might be to trust himself, the law will not trust him."'" Id. Although juror Wade assured the trial judge that he could set aside his familial relationship with his brother-witness and be fair and impartial, in my opinion, we close our eyes to the obvious to expect a juror to stand impartial and indifferent to a criminal defendant who is charged with feloniously assaulting a police officer where the juror's brother is not only a police officer but a prosecution witness. Moreover, here we have the aggravating circumstance that one of the controverted incidental issues in this case was that the arresting police officer would be asserting that he was justified in shooting the defendant. "It is extremely unlikely the public would have confidence in the integrity of the process" where a juror's brother is a police officer-witness in a case where the defendant is being tried for feloniously assaulting another police officer, who in turn claims that he had to shoot the defendant in defending against the assault. Medici, 260 Va. at 226-27, 532 S.E.2d at 30-31. As the Supreme Court stated in Cantrell, even where "the juror states that the circumstances ... would have no `bearing' on [his] judgment as a juror and that [he] could `be totally fair to both sides,'" jury selection "mustlaobe administered in a manner that promotes confidence in the integrity of the judicial process." 259 Va. at 51, 523 S.E.2d at 504. The appearance that juror Wade lacked objectivity and was not impartial is so great in these circumstances that for the court to allow the juror to serve manifests a willingness to administer justice with disregard of "[plublic confidence in the integrity of the process." Accordingly, I would reverse the convictions and remand for retrial. NOTES [*] Judge Coleman participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2000 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. [1] In Cantrell, the prospective juror was, at the time of the trial, a client of the law firm representing the plaintiff, in a similar personal injury case. In Medici, the prospective juror's husband had been murdered and his alleged murderer was being represented by the same public defender's office that was representing the defendant. [2] In Core, the Virginia Supreme Court examined the materiality of the witness' testimony to determine the propriety of striking a prospective juror who was the brother of one of the witnesses in the case, applying, by implication, an abuse of discretion standard, rather than a per se rule. Id. at 13, 124 S.E. at 456. We further note that all of the states which have addressed this issue have similarly found no basis for creating a per se rule disqualifying a prospective juror who is closely related to a witness, such as a parent, child or sibling. See, e.g., Simpson v. State, 666 So.2d 100 (Ala.Cr.App.1995); Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950); State v. Lee, 559 So.2d 1310 (La.1990); Smith v. State, 465 So.2d 999 (Miss.1985); State v. Christian, 206 W.Va. 579, 526 S.E.2d 810 (1999); Artier v. State, 872 P.2d 100 (Wyo.1994). In the few instances when an appellate court found that the trial court had abused its discretion in seating a close relative of a prosecution witness, the determination turned on either the materiality of the witness' testimony, see, e.g., Simpson, 666 So.2d 100; Tucker v. State, 454 So.2d 552 (Ala.1984); State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974), or on the fact that questioning of the prospective juror revealed bias, see, e.g., Christian, 206 W.Va. 579, 526 S.E.2d 810. [3] The holding in Lilly does not preclude per se disqualifications where a close familial relationship exists between a juror and witness, such as brothers, spouses, or parent-child. In my opinion, the same compelling reasons that required per se disqualifications in those cases where the juror was closely related to counsel or to a party exist here. See, e.g., Medici, 260 Va. at 226-27, 532 S.E.2d at 30-31 (holding that, although there was no reason to question the prospective juror's honesty and sincerity, where prospective juror's husband had been murdered and the accused murderer was represented by a lawyer in the same public defender's office that also served as counsel for the defendant, permitting the juror to be seated under those circumstances, "would weaken public confidence in the integrity of criminal trials"); Cantrell, 259 Va. at 49-52, 523 S.E.2d at 503-04 (holding that trial court erred in failing to strike a prospective juror for cause where, at the time of trial, the juror was a client of the law firm representing the plaintiff). A bright-line rule providing for per se disqualification where a juror is within two degrees of affinity or consanguinity of a witness, which would encompass spouses, parents and children, and siblings, would avoid the appearance of bias, would promote the appearance of fairness, and would provide the courts with a consistent and easily applied guideline. See Gray v. Commonwealth, 226 Va. 591, 595, 311 S.E.2d 409, 411 (1984) (illustrating the degrees of kindred according to the civil law incorporated into the common law); see also 26A C.J.S. Descent & Distribution § 22 (1956 & Supp.2000).