Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 012316 September 13, 2002
ERNEST OLIVER HILL, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
I.
In this appeal, we consider whether a criminal defendant
who was indicted for non-capital offenses was entitled to ask
members of the jury panel during voir dire about the range of
punishment that could be imposed upon him in the event he was
found guilty.
II.
Ernest Oliver Hill, Jr., was indicted by a grand jury of
the City of Richmond for rape in violation of Code § 18.2-61,
forcible sodomy in violation of Code § 18.2-67.1, statutory
burglary in violation of Code § 18.2-91, and robbery in
violation of Code § 18.2-58. During the voir dire of the jury
panel, the following colloquy occurred among defendant's
counsel, the Commonwealth's Attorney, a member of the panel,
and the Court:
"[DEFENDANT'S ATTORNEY]: You could give [the
defendant] a fair trial?
"[MEMBER OF THE VENIRE]: Yes, I could.
"[DEFENDANT'S ATTORNEY]: . . . . You heard
[the Commonwealth's Attorney] state the charge. I
just want to ask you if you can consider the full
range of penalty for the charges? The charges carry
a minimum of five years to —
"[COMMONWEALTH'S ATTORNEY]: Objection.
"THE COURT: Objection sustained. You can have
your exception. Let's move on.
"[DEFENDANT'S ATTORNEY]: Judge, my client has
a right to a fair and impartial jury under his
Fourth and Sixth Amendment [r]ights.
"THE COURT: I am very familiar with those.
All right. Let's move on.
"[DEFENDANT'S ATTORNEY]: If I can just
preserve for the record. He has the right to an
impartial jury that is impartial not only to the
issue of guilt but also the question of punishment,
and I should be able to —
"THE COURT: I have ruled. Don't argue. Take
your exception and go on to your next question."
A jury was selected, and the jury found the defendant
guilty of the crimes charged in the indictment and fixed his
punishment as follows: ten years imprisonment for statutory
burglary, 40 years imprisonment for sodomy, 20 years
imprisonment for robbery, and 40 years imprisonment for rape.
The circuit court entered a judgment confirming the verdict.
The defendant appealed the judgment to the Court of
Appeals and asserted that he was entitled to ask the jury
panel during voir dire about the range of punishment that
could be imposed upon him. The Court of Appeals reversed the
judgment of the circuit court and held that the defendant was
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denied a fair and full opportunity to ascertain whether the
prospective jurors stood indifferent in the cause because he
was not permitted to question them about the range of
punishment that could be imposed upon him. Hill v.
Commonwealth, 36 Va. App. 375, 381, 550 S.E.2d 351, 354
(2001). The Commonwealth appeals.
III.
The Commonwealth argues that a defendant does not have a
constitutional or statutory right to question members of a
jury panel about the range of punishment in a non-capital
case. Responding, the defendant asserts that he was entitled
to question the members of the jury panel about their
potential biases, including any bias that may relate to the
range of punishment. We disagree with the defendant.
The right of an accused to a trial by an impartial jury
is a right guaranteed by the Constitution of the United States
and the Constitution of Virginia. U.S. Const. amends. VI and
XIV; Va. Const. art. I, § 8. Code § 8.01-358, which
encompasses these guarantees of an accused's right to a trial
by an impartial jury, states in part:
"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 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
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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."
See also Rule 3A:14; Green v. Commonwealth, 262 Va. 105, 115,
546 S.E.2d 446, 451 (2001); Martin v. Commonwealth, 221 Va.
436, 444, 271 S.E.2d 123, 128-29 (1980); Breeden v.
Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).
A defendant, however, does not have an unlimited
constitutional or statutory right to propound any question to
a jury panel. Rather, the questions propounded during voir
dire must be relevant to the factors prescribed in Code
§ 8.01-358. We have stated:
"The test of relevancy is whether the questions
relate to any of the four criteria set forth in the
statute. If an answer to the question would
necessarily disclose, or clearly lead to the
disclosure of the statutory factors of relationship,
interest, opinion, or prejudice, it must be
permitted. Questions which go beyond this standard
are entirely within the trial court's discretion.
Davis v. Sykes, 202 Va. 952, 121 S.E.2d 513 (1961).
"A party has no right, statutory or otherwise,
to propound any question he wishes, or to extend
voir dire questioning ad infinitum. The court must
afford a party a full and fair opportunity to
ascertain whether prospective jurors 'stand
indifferent in the cause,' but the trial judge
retains the discretion to determine when the parties
have had sufficient opportunity to do so."
LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644,
653 (1983), cert. denied, 464 U.S. 1063 (1984); accord Goins
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v. Commonwealth, 251 Va. 442, 458, 470 S.E.2d 114, 125, cert.
denied, 519 U.S. 887 (1996); Buchanan v. Commonwealth, 238 Va.
389, 401, 384 S.E.2d 757, 764-65 (1989), cert. denied, 493
U.S. 1063 (1990); Mackall v. Commonwealth, 236 Va. 240, 251,
372 S.E.2d 759, 766 (1988), cert. denied, 492 U.S. 925 (1989).
We hold that in a non-capital case, neither the defendant
nor the Commonwealth has a constitutional or statutory right
to question a jury panel about the range of punishment that
may be imposed upon the defendant. Questions about the range
of punishment are not relevant to any of the factors
prescribed in Code § 8.01-358, those factors being
relationship to the parties, interest in the cause, the
formation of any opinions about the cause, or bias or
prejudice therein. Rather, questions about the range of
punishment during voir dire examination will only result in
speculation by jury panel members. Their responses to
questions about the range of punishment would be speculative
because the jurors would be required to answer these questions
in a factual vacuum, without the benefit of the evidence that
would be presented to them during the guilt and sentencing
phases of the trial. For example, the members of the jury
panel would be required to answer these questions without
knowledge of the facts surrounding the charged crimes and the
defendant's criminal history or lack thereof.
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We recognize, as the defendant properly observes, that in
a capital murder case in which a defendant can be subjected to
the death penalty, the parties are entitled to ask the members
of the jury panel "whether they be unalterably in favor of, or
opposed to, the death penalty in every case." Morgan v.
Illinois, 504 U.S. 719, 735 (1992). However, in this case,
unlike in a capital murder case, we are not concerned with
whether a potential juror would automatically impose, or
refuse to impose, the death penalty upon the conviction of any
defendant. And, we note that the trial of a capital murder
case in which a defendant may be subject to the penalty of
death is qualitatively different from non-capital cases. See
Lankford v. Idaho, 500 U.S. 110, 125 n. 21 (1991); Zant v.
Stephens, 462 U.S. 862, 884-85 (1983).
IV.
In summary, we hold that neither the defendant nor the
Commonwealth in a non-capital criminal prosecution has a
constitutional or statutory right to ask the members of a jury
panel questions about the range of punishment that may be
imposed upon a defendant if he is ultimately convicted of the
crimes charged or of lesser included offenses. In view of
this holding, we need not consider the litigants' remaining
contentions. Accordingly, we will reverse the judgment of the
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Court of Appeals, and we will reinstate the judgment of the
circuit court.
Reversed and final judgment.
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