Opinion
Record No. 2232-91-3
March 30, 1993
FROM THE CIRCUIT COURT OF BLAND COUNTY WILLIS A. WOODS, JUDGE
H. Lee Chitwood (Gleaves, Kaase Chitwood, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General; Oliver L. Norrell, III, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Coleman
Argued at Salem, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Gary Thomas Adams was convicted in a jury trial of possessing marijuana while an inmate in a state correctional facility in violation of Code § 53.1-203. Adams appeals, contending that the trial judge erred by refusing to remove for cause as many as eight jurors who acknowledged on voir dire that they would or "probably" would believe the testimony of a correctional officer over that of an inmate. We hold that by failing to determine that those jurors were free of bias, the trial court denied Adams his constitutional right to trial by an impartial jury. Accordingly, we reverse Adams' conviction and remand for a new trial.
Adams was an inmate at the Bland Correctional Center in Bland, Virginia. On October 16, 1989, two correctional officers purportedly observed Bland discard five pieces of paper containing .04 ounce of marijuana. The correctional officers recovered the pieces of paper and charged Adams with violating Code § 53.1-203. At trial, during voir dire, defense counsel asked each prospective juror whether he or she would more readily believe the testimony of a correctional officer than the testimony of an inmate. Eight members indicated that they would or "probably" would find a correctional officer's testimony to be more credible than that of an inmate. Defense counsel moved to exclude those persons for cause. At that point, the trial judge read an instruction to the prospective jurors on credibility of witnesses and asked if any of them "could not follow" the instruction. No member responded that he or she could not follow the instruction, and the judge overruled defense counsel's motion. The jury was seated from this venire, and none of the jurors who responded that they would or "probably" would believe a police officer over an inmate was excused for cause.
Specifically, the trial judge stated:
Ladies and gentlemen, I have another question to put to all of you and especially those people who answered Mr. Warburton in the affirmative as to giving more weight or assigning more credibility to the testimony of a correctional officer than you would an inmate. . . .
You are the judges of the facts, the credibility of the witnesses and the weight of the evidence. You may consider the appearance and manner of the witnesses on the stand, their intelligence, their opportunity for knowing the truth and for having observed the things about which they testified, their interest in the outcome of the case, their bias, and if any have been shown, their prior inconsistent statements. While you have no right to disregard arbitrarily the believable testimony of any witness, you may disregard or accept in whole or in part the testimony of any witness when you consider it in connection with the other evidence of the case. You are entitled to use your common sense in judging any testimony. From these things and all the other circumstances of the case, you may determine which witnesses are more believable and weigh their testimony accordingly.
Now, ladies and gentlemen, I ask you is there anyone among you that could not follow that instruction and give due consideration to all the testimony that you hear? Is there anyone among you that cannot follow that instruction? If there is, raise your hand. Thank you very much and let the record show that no one indicated they could not follow that instruction and no hands were raised.
The Commonwealth, in order to prove that Adams possessed marijuana, relied entirely on the testimony of the two correctional officers who observed Adams. Adams' sole witness was a fellow inmate who testified that it was he, not Adams, who had discarded the paper containing marijuana. Thus, the crucial issue before the jury was which witness or witnesses were to be believed, the correctional officers or the inmates. At the conclusion of the evidence, the jury found Adams guilty as charged.
An accused in a criminal case has a constitutional right to a fair and impartial jury, U.S. Const. amend. VI; Va. Const. art. I, § 8, and any reasonable doubt whether a juror is unbiased or able to follow the law and the court's instructions must be resolved in the accused's favor. Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976); Sizemore v. Commonwealth, 11 Va. App. 208, 212, 397 S.E.2d 408, 410 (1990).See also Code § 8.01-358; Rule 3A:14(a)(7). A fair and impartial juror is an individual who is free of enmity or bias toward the defendant or the state and who stands indifferent to the cause. Breeden, 217 Va. at 298, 227 S.E.2d at 735. A qualified juror is one who can render a fair and impartial verdict according to the law and evidence submitted at trial. Id.
The principal method for determining whether prospective jurors are impartial and unbiased is by voir dire examination, and the trial judge has the duty to the parties to use the voir dire to procure a fair and impartial jury. Saline v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200 (1976). The trial judge must exercise sound judicial discretion in ascertaining whether a prospective juror is qualified, Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307 S.E.2d 896, 898 (1983), and the judge's determination that a juror is "constitutionally impartial" will not be set aside unless there has been manifest error.Briley v. Commonwealth, 222 Va. 180, 185, 279 S.E.2d 151, 154 (1981). Whether the trial judge erred by failing to exclude a prospective juror for cause must be decided upon a review of the entire record and voir dire, rather than by focusing upon an isolated question and answer. Fitzgerald v. Commonwealth, 223 Va. 615, 628, 292 S.E.2d 798, 805 (1982), cert. denied, 459 U.S. 1228 (1983); Mullis v. Commonwealth, 3 Va. App. 564, 570, 351 S.E.2d 919, 923 (1987).
The facts in this case are strikingly similar to the facts inGosling v. Commonwealth, 7 Va. App. 642, 644-46, 376 S.E.2d 541, 543-44 (1989), and that holding controls our decision here. For a juror to give "unqualified credence" to the testimony of a correctional officer over the testimony of an inmate and automatically to believe the officer solely on the basis of his official status constitutes a constitutionally impermissible bias by a juror. Id. Where, as here, the outcome of a case largely depends upon the jury's deciding whether to believe prosecution witnesses with official status or defense witnesses with no official status, an inquiry as to whether jurors would invariably believe or give "unqualified credence" to the witnesses with official status is not only appropriate "but may be required." Mullis, 3 Va. App. at 571, 351 S.E.2d at 924 (citing Brown v. United States, 338 F.2d 543, 544 (D.C. Cir. 1964)); see Gosling, 7 Va. App. at 645, 376 S.E.2d at 544.
It is not uncommon for a prospective juror to be inclined or predisposed to credit the testimony of a police officer over that of other witnesses. Citizens from a diversity of life's experiences come to jury service with preconceived beliefs, notions, and ideas as to what their duties and responsibilities as jurors will be. That a prospective juror may be initially inclined to believe the testimony of a police officer over an inmate, when those factors are the only ones that the juror is asked to consider, does not necessarily mean that the juror has a fixed view that he or she would invariably give unqualified credence to an officer or would always discredit an inmate. Only when a juror's preconceived notions or views conflict with the juror's legal obligations and cannot be set aside is the juror disqualified from serving. When a juror will automatically believe the testimony of a police officer over contradictory credible testimony of another witness solely because of the officer's status, the juror will be unable fairly and impartially to consider other relevant factors that should be considered when determining a witness' credibility. Similarly, if a juror would invariably disbelieve an inmate, solely because of the witness' status as an inmate, the juror will be excluding from consideration other significant and relevant factors that a fair and impartial juror must necessarily consider in deciding whom to believe. Thus, although a juror may properly consider as a factor in deciding whom to believe whether a witness' status in relation to the controversy might cause the witness to be biased and, thereby, worthy of being believed, a fair and impartial juror must be free from stereotypical biases that would cause the juror automatically to accept or reject a witness' testimony.
Upon review of the entire voir dire, eight jurors indicated that they would or "probably" would believe the testimony of a police officer over the testimony of an inmate. Based on their answers, these jurors were predisposed to believe that the testimony of police officers is inherently more credible than that of an inmate, or that the testimony of an inmate is inherently not credible, or both. Accordingly, the responses from these jurors raised a reasonable doubt as to whether they were biased and could give Adams a fair trial. See Gosling, 7 Va. App. at 645, 376 S.E.2d at 544.
When, as here, the case turns entirely on the credibility of law enforcement officers and inmates, if jurors invariably or automatically credit the testimony of a law enforcement officer and discredit the testimony of an inmate, the jurors will have effectively transferred the burden of proof to the accused to prove his innocence by independent evidence. The trial judge was, therefore, obligated to resolve the doubt concerning the prospective jurors' bias or to remove them from the jury for cause. Id. The trial judge neither resolved the reasonable doubt nor removed the prospective jurors for cause.
In order to remove a reasonable doubt as to a prospective juror's ability to be fair and impartial, the trial judge must determine that the individual juror's predisposed bias or misconception of the law is not fixed and can be laid aside and the law properly applied. Sizemore, 11 Va. App. at 213, 397 S.E.2d at 411. The judge or counsel must make an inquiry that "specifically address[es] the basis for the apparent disqualification," and the juror must "specifically and affirmatively" establish to the satisfaction of the court that he or she can hear the case free from bias or a misconception of the law. Id. at 213-14, 397 S.E.2d at 411-12. In order to rehabilitate a juror who has expressed a predisposed bias, it is not sufficient for the trial judge to read the general credibility instruction and then ask the prospective jurorsen masse the leading question whether anyone "cannot follow" that instruction. See Sizemore, 11 Va. App. at 214-15, 297 S.E.2d at 412. Such an inquiry does nothing to assist the individual juror to understand the problem and does little to establish the juror's state of mind in order to dispel the reasonable doubt that the juror can be impartial. Often, a response that the prospective juror will believe a police officer does not actually reflect a fixed state of mind that the juror will invariably believe a police officer and will not fairly apply the law by considering other factors. However, in order to determine whether this is simply an inclination or a misconception that can be laid aside, counsel or the judge must engage the juror in sufficient dialogue so that the juror is made aware of what is required and given an opportunity to consider whether other factors would be weighed in resolving witness credibility. See, e.g., People v. Sandoval, 733 P.2d 319, 321-22 (Colo. 1987); Commonwealth v. Ingber, 516 Pa. 2, 8, 531 A.2d 1101, 1103 (1987); State v. Bailey, 605 P.2d 765, 768 (Utah 1980).
The trial judge failed to address specifically or individually the jurors' preconceived conviction that they would believe the testimony of a correctional officer over that of an inmate based solely on the officer's status. We assume that the jurors continued to hold a disqualifying bias during trial. For this reason, Adams' conviction must be reversed and the case remanded for a new trial.
Reversed and remanded.