Opinion
Record No. 1320-98-4.
April 18, 2000.
APPEAL FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, F. Bruce Bach, Judge.
James G. Connell, III, Assistant Public Defender, for appellant.
John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Annunziata.
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
A jury convicted Peter Richard Shanklin of two counts of obtaining by false pretenses money or property in excess of $200 in violation of Code § 18.2-178. Shanklin appeals the trial judge's denial of his motion to strike for cause a prospective juror who said she would find a police officer more credible than another witness. For the reasons that follow, we reverse the convictions and remand the case for a new trial.
I.
During voir dire, the following colloquy occurred between defense counsel, the trial judge, and the prospective juror:
[Counsel]: Is there anybody who would be more likely to believe the police officer than other witnesses you might hear testify simply because they're police officers?
[Juror]: I think I might.
[Counsel]: I'm sorry, what part of my question —
[Juror]: I think I might believe a police officer more than I would just any other witness, possibly.
[Counsel]: Simply because the person is a police officer?
[Juror]: Because I know something about their background and I don't know a witness's background.
[Counsel]: Well, if the witness told you about his background —
[Juror]: That would be different.
[Counsel]: But once again, if the witness says, you know, I work at Burger King, does that mean —
[Judge]: Well, I don't think a jury can weigh and balance —
[Juror]: Right.
[Judge]: [A]ll we ask them to do is weigh and balance credibility but they can't do it in a vacuum. What if one was a policeman and one was the, you know, the Bishop of Canterbury or something. I mean how can you say.
[Juror]: Right.
[Judge]: I don't think — I don't think you can.
[Counsel]: My only inquiry is that you haven't seen these people, you don't know anything about them but you may — but are you telling this Court that you already think that a police officer might be a little more believable than everybody else even though you haven't seen them —
[Juror]: Not necessarily.
[Counsel]: — and you don't know? Not necessarily or not at all?
[Juror]: Well, to me a police officer is pledged to do the right thing at all times. So it gives him a little more credibility than an anonymous person. You know, I would have to —
[Counsel]: Well, Your Honor, I don't think that meets the standard of keeping an open mind until the witness has testified.
[Judge]: Well, I think it does. I mean she's saying that a police officer, knowing that someone's a police officer you know something about him as opposed to an anonymous person.
[Juror]: That's all I'm saying.
[Judge]: Yeah, but if you had two people, you knew something about both of them she could weigh and balance their credibility.
[Juror]: Right.
[Judge]: I think that's a proper answer.
At the close of voir dire, the following colloquy occurred between defense counsel and the trial judge:
[Counsel]: You Honor, I just want to renew my motion to strike for cause [that] Juror. . . .
* * * * * * *
[Judge]: I think she gave the appropriate answers and sitting here looking at her and all it's just my opinion that she can weigh and balance credibility which is all she's required to do.
What she clearly said without any prompting from me was that if she knew one person was a policeman and another person she didn't know anything at all about, then she would tend to believe the policeman.
I think that's okay.
After the trial judge denied the motion, the prospective juror was peremptorily struck from the panel.
II.
The right to a trial by an impartial jury is guaranteed under the United States and Virginia Constitutions and by legislative enactment. See U.S. Const. amend VI; Va. Const. art. I, § 8; Code §§ 8.01-357, 8.01-358. "By ancient rule, any reasonable doubt [regarding the prospective juror's ability to give the accused a fair and impartial trial] must be resolved in favor of the accused." Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).
An indication on the part of a potential juror that she will "giv[e] unqualified credence to the testimony of a law enforcement officer based solely on the officer's official status constitutes impermissible bias." Gosling v. Commonwealth, 7 Va. App. 642, 645, 376 S.E.2d 541, 544 (1989) (citation omitted). In Gosling, we reversed the defendant's conviction because the trial judge refused to exclude a juror for cause who said he would give the testimony of a correctional officer greater credibility because the officer would not "particularly [have] any axe to grind." 7 Va. App. at 644, 376 S.E.2d at 543. When the trial judge inGosling asked the juror whether he would give equal weight to the testimony of a correctional officer and the testimony of an inmate, the juror replied, "[j]udge, I would certainly listen to the inmate, but I would feel that the correctional officer that's got no axe to grind, he's not trying to get somebody in trouble, and the inmate would be trying to get himself out of trouble, or get his fellow inmate out." Id.
Upon review of the entire record of the voir dire in this case, see id. at 645, 376 S.E.2d at 544, we conclude that the refusal of the trial judge to exclude the challenged prospective juror from the jury panel constituted reversible error. In response to defense counsel's inquiry whether any jurors would tend to assign greater weight to the testimony of a police officer simply because the officer was a law enforcement officer, the prospective juror revealed her bias. She initially indicated she "might believe a police officer more than [she] would just any other witness" and further said she would assign more credibility to a police officer because he was "pledged to do the right thing at all times . . . [which] gives him a little more credibility than an anonymous person." Those responses raised a reasonable doubt as to her qualifications because they indicated a bias based on the officer's status and should have led to her exclusion from the jury panel. See id. at 646, 376 S.E.2d at 544.
In an attempt to rehabilitate the prospective juror's stated inclination, the trial judge said to her, "if you had two people, you knew something about both of them [you] could weigh and balance their credibility." The judge's statement, however, which the prospective juror affirmed, was unduly suggestive, "vitiat[ing] any element of independent consideration by the juror." Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 389, 349 S.E.2d 903, 908 (1986); see also Breeden, 217 Va. at 300, 227 S.E.2d at 736 (ruling that the juror merely gave expected answers to judge's long leading questions).
We have held that "[e]vidence of the requisite qualifications for impartial service must emanate from the juror, unsuggested by leading questions." Gosling, 7 Va. App. at 646-47, 376 S.E.2d at 545 (citations omitted). "Mere assent to a trial judge's questions or statements . . . is not enough to rehabilitate a prospective juror who has initially demonstrated a prejudice or partial predisposition." Griffin v. Commonwealth, 19 Va. App. 619, 625, 454 S.E.2d 363, 366 (1995) (citation omitted). It is well established that "proof that [a prospective juror] is impartial and fair, should come from [her] and not be based on [her] mere assent to persuasive suggestions." Parsons v. Commonwealth, 138 Va. 764, 773, 121 S.E. 68, 70 (1924). The evidence of impartiality did not emanate from the prospective juror herself; therefore, we have "no assurance that [her] answers are the product of . . . her own thinking, as opposed to answers which the trial [judge] through [his] leading questions has suggested would be 'correct.'" Boblett v. Commonwealth, 10 Va. App. 640, 648, 396 S.E.2d 131, 135 (1990).
The prospective juror's "responses to these questions indicate that [s]he was still predisposed to believe correctional officers over other witnesses. Her responses were simply insufficient to dispel the reasonable doubt lingering as to [her] qualifications to serve." Gosling, 7 Va. App. at 647, 376 S.E.2d at 545. Reasonable doubt as to a potential juror's impartiality should be resolved in favor of the accused. See Salina v. Commonwealth, 217 Va. 92, 94, 225 S.E.2d 199, 200 (1976).
This case is distinguishable from Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202 (1979), and Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871 (1990), both of which are relied upon by the Commonwealth. In Waye, the Supreme Court held that the record demonstrated that the prospective juror's "attitude on the subject of the testimony of police officers was essentially neutral." 219 Va. at 690, 251 S.E.2d at 206. The prospective juror gave the following response to a question concerning the weight he would give a police officer's testimony:
"Well I don't know. I just hardly don't know what to say either way, to be fair with you. Close thing either way, the way I see it. I may be wrong."
Id. at 689, 251 S.E.2d at 206.
In Smith, when the prospective juror was asked whether "the testimony of a police officer carries more weight . . . than that of an ordinary citizen," he responded, "That is a tough call." 239 Va. at 255, 389 S.E.2d at 877. He then explained as follows:
"Police officers have always been in a high esteem and you always think that they are the ones that are being able to tell the truth more than an average citizen. But then, again, it is a preconceived notion that I have probably had for a majority of my life."
Id. The Court noted that he "then replied in the negative when asked whether 'that preconceived notion would interfere with his ability to weigh the evidence and render a fair and impartial decision . . . or would [he] automatically give more weight to the testimony of a police officer.'" Id. (alteration in original). Relying on Waye, the Court held that his attitude on the testimony of police officers "was essentially neutral." Id.; see also Mullis v. Commonwealth, 3 Va. App. 564, 572, 351 S.E.2d 919, 924 (1987) (noting that where prospective jurors indicated that "as an abstract proposition they would probably or would have a tendency to give some weight to the fact that a witness was a police officer if all else were equal," the record did not establish a state of mind which would give "unqualified credence to the testimony of a police officer").
In this case, the prospective juror's responses did not indicate she was neutral as to the relative credibility of a police officer. Her statement that she would give the officer more credibility makes this case more akin to Gosling.
"It 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, 217 Va. at 93, 225 S.E.2d at 200. Code § 8.01-357 provides that peremptory challenges are to be made from "a panel free from exceptions." See also Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90 (1980). In addition, "if [upon voir dire] 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." Code § 8.01-358 (emphasis added). Thus, by statutory mandate, Shanklin had "a right to an impartial jury drawn from 'a panel [of twenty] free from exceptions.'" Breeden, 217 Va. at 300, 227 S.E.2d at 737. Applying this mandate, the Supreme Court has held that "[i]t is prejudicial error for the trial [judge] to force [an accused] to use the peremptory strikes afforded [the accused] by Code § [ 8.01-357] . . . to exclude a [prospective juror] who is not free from exception." Id.
This statutory right is not diminished by the United States Supreme Court's recent holding that an accused is not denied a right protected by Fed. Rule Crim. Proc. 24(b) if he uses a peremptory strike to remove a juror the trial judge should have removed for cause. See United States v. Martinez-Salazar, ___ U.S. ___ (No. 98-1255, Jan. 19, 2000). Unlike our statutes, that Federal Rule does not guarantee a panel of prospective jurors that stands indifferent to the cause and free from exception.
Accordingly, we reverse the convictions and remand for a new trial.
Reversed and remanded.
Willis, J., dissenting.
The line of questioning to which the venireman was subjected, sprung on her in the tense glare of the courtroom, was unfair. It was an exercise in syllogism, not a quest for truth. It made a mockery of the purpose of voir dire.
"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). Notwithstanding the artless conduct and conclusion of her voir dire, the substance of the venireman's answers was as follows:
I think I might believe a police officer more than I would just any other witness, possibly. . . . Because I know something about their background and I don't know a witness's background.
[QUESTION]: Well, if the witness told you about his background —
[ANSWER]: That would be different.
[QUESTION]: My only inquiry is that you haven't seen these people, you don't know anything about them, but you may — but are you telling this Court that you already think a police officer might be a little more believable than everybody else even though you haven't seen them —
[ANSWER]: Not necessarily. . . . Well, to me a police officer is pledged to do the right thing at all times. So it gives him a little more credibility than an anonymous person, you know, I would have to —
THE COURT: [S]he's saying that a police officer, knowing that someone's a police officer you know something about him as opposed to an anonymous person.
[ANSWER]: That's all I'm saying.
THE COURT: [B]ut if you had two people, you knew something about both of them she could weigh and balance their credibility.
[ANSWER]: Right.
Most law-abiding citizens tend to feel a general confidence in the police. This derives from the respect for government and for the rule of law that is instilled in us from childhood. It is commonly known that the police are sworn to uphold the law and are trained to observe and to report their observations. These qualities may well be refuted on cross-examination in individual cases. However, in generality, they suggest credibility. Most law-abiding citizens, confronted suddenly with questions such as were asked this venireman, will naturally express an anticipatory confidence in the police. This reflection of good citizenship in no way denotes an unwillingness or inability to discharge a juror's duty or to assess the credibility of witnesses in accordance with the court's instructions of controlling legal principles. The venireman's answers did not denote that she would give "unqualified credence to the testimony of a law enforcement officer based solely on the officer's official status." Gosling v. Commonwealth, 7 Va. App. 642, 645, 376 S.E.2d 541, 544 (1989).
I would affirm the judgment of the trial court.