Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Whiting, S.J.
CALVIN LEE BARRETT OPINION BY
SENIOR JUSTICE HENRY H. WHITING
v. Record No. 010686 November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we review a trial court's denial of a
defendant's motion to strike a prospective juror for cause. The
prospective juror's brother, a police officer, was a witness for
the Commonwealth in a case involving two consolidated criminal
charges.
Calvin Lee Barrett, the defendant, was operating an
automobile in the City of Charlottesville with an expired
license tag and a broken left rear tail light lens when his
vehicle was observed and stopped by Virginia State Trooper
Joseph S. Fleming. As soon as the defendant stopped his
vehicle, he walked away from it, ignoring the trooper's order to
stop. The trooper was only able to stop the defendant by
following him on foot and seizing his arm. As the trooper was
escorting the defendant to the police cruiser, the defendant
broke away from the trooper. In an escalating series of
struggles, the trooper was unsuccessful in his attempt to seize
and arrest the defendant who finally reentered his vehicle and
sat in the driver's seat.
The trooper reached in the driver's side window and seized
the defendant with one hand. While the trooper's arm was
extended into the vehicle, the defendant backed his vehicle into
the trooper's cruiser and then started driving forward. Fearing
that he would be killed or seriously injured if the defendant
continued to drive forward, the trooper shot the defendant with
his revolver, which he had drawn during the previous struggles.
The defendant was charged with operating his vehicle after
he had been declared an habitual offender, second offense, and
an assault and battery upon Fleming, a police officer while in
the performance of his duty. During voir dire examination of
prospective jurors, defense counsel questioned prospective juror
James Wade concerning Wade's possible bias in weighing
potentially conflicting testimony of the defendant and police
officers. The defendant was particularly concerned with the
expected testimony of the prospective juror's brother, Charles
Wade, a police officer. Relevant portions of the questions and
answers follow:
Question: [I]f 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 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?"
Answer: I'm an impartial person.
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. . . .
Question: . . . 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?
Answer: Truthfully, yes.
Responding to further questions variously posed by the
court, the Commonwealth's Attorney, and defense counsel,
prospective juror Wade testified: (1) that he would not hesitate
to put aside his relationship with his brother and his
acquaintance with other police officers in judging the
credibility or believability of their testimony; (2) that he
would not favor, or show partiality toward his brother's
testimony over that of the defendant or defense witnesses; (3)
that he did not think that he would have a tendency to believe
his brother's testimony over that of somebody else he did not
know or over the testimony of a non-police officer; and (4) that
he would not show any partiality in favor of his brother's
testimony.
Because defendant's motion to strike James Wade for cause
was denied, he exercised his preemptory right to strike Wade
from the panel. During the jury trial that followed, Charles
Wade testified that when he arrived at the scene shortly after
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the defendant was shot, he saw the trooper seated in a police
vehicle and the defendant lying on the ground. He also
testified that he assisted in securing the crime scene.
After the jury heard all the evidence, it found the
defendant guilty of both charges and recommended confinement in
the penitentiary for a period of five years on the habitual
offender charge and three years on the charge of assaulting a
police officer. The court imposed the recommended sentences.
In the defendant's appeal to the Court of Appeals, he
alleged that the trial court erred in failing to strike
prospective juror Wade for cause. A panel of the Court of
Appeals affirmed the judgment of the trial court in an
unpublished opinion. Barrett v. Commonwealth, Record No. 1829-
99-2 (May 16, 2000). Upon a hearing en banc, the Court of
Appeals affirmed the trial court's judgment, with four judges
dissenting. 34 Va. App. 374, 542 S.E.2d 23 (2001). The
defendant appeals to this Court.
As an appellate court, we must defer to a trial
court's ruling on the issue of whether to retain or excuse
a prospective juror for cause and that ruling will not be
disturbed on appeal unless there has been manifest error
amounting to an abuse of discretion. Medici v.
Commonwealth, 260 Va. 223, 227, 532 S.E.2d 28, 30 (2000);
Cantrell v. Crews, 259 Va. 47, 50, 523 S.E.2d 502, 504
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(2000); Vinson v. Commonwealth, 258 Va. 459, 467, 522
S.E.2d 170, 176 (1999), cert. denied, 530 U.S. 1218
(2000).
The defendant contends that the trial court abused
its discretion in refusing to strike prospective juror
Wade for cause. In support, the defendant notes the
equivocations in Wade's responses on voir dire
examination, his relationship to the prospective police
officer witness, and the fact that State Trooper Fleming
claimed he was justified in shooting the defendant. The
Commonwealth responds that a consideration of the juror's
entire voir dire examination disclosed that he was not
biased and supported the trial court's decision to retain
him on the panel.
Our consideration of prospective juror Wade's answers
gives us no reason to question the honesty and sincerity
of his determination to discharge his duties as a juror in
an unbiased manner. And we have said in the context of a
criminal case that a juror's family relationship to a
police-officer witness does not require dismissal per se
of the juror if the trial court is satisfied that the
juror can stand indifferent in the cause. Lilly v.
Commonwealth, 255 Va. 558, 569-70, 499 S.E.2d 522, 531
(1998), rev'd on other grounds, 527 U.S. 116 (1999).
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However, in the subsequent Medici and Cantrell cases, we
recognized that in constituting the jury panel, "[p]ublic
confidence in the integrity of the process" is also "at
stake." Medici, 260 Va. at 227, 532 S.E.2d at 30;
Cantrell, 259 Va. at 51, 523 S.E.2d at 504.
Thus, public confidence in the integrity of the
process is one of the elements a trial court should
consider when deciding whether a juror should be struck
for cause. In the recited circumstances of this case we
think that a refusal to strike the prospective juror for
cause makes it unlikely that the public would have
confidence in the judicial process. See Medici, 260 Va.
at 227, 532 S.E.2d at 30-31; Cantrell, 259 Va. at 51, 523
S.E.2d at 504.
Hence, we conclude that the trial court abused its
discretion in refusing to strike prospective juror Wade
for cause. Accordingly, we will reverse the judgments of
the trial court and the Court of Appeals and remand the
case to the Court of Appeals with direction that the case
be remanded to the trial court for further proceedings.
Reversed and remanded.
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