Present: All the Justices
KEVIN GREEN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 002976 June 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
James A. Luke, Judge
I.
Kevin Green appeals his capital murder conviction and
sentence of death. The dispositive question in this appeal is
whether the circuit court abused its discretion in refusing to
remove two members from the venire. Because we conclude that
the circuit court abused its discretion, and that such abuse
constitutes manifest error, we will reverse the judgment of
the circuit court confirming Green's capital murder
conviction, and we will only address certain issues in this
appeal.
II.
The defendant was tried before a jury and found guilty of
the capital murder of Patricia L. Vaughan during the
commission of robbery in violation of Code § 18.2-31(4). The
jury also found the defendant guilty of robbery, malicious
wounding of Lawrence T. Vaughan, and three counts of the
illegal use of a firearm.
In the penalty phase of the capital murder trial, the
jury fixed the defendant's punishment at death for the capital
murder conviction, finding that he represented a continuing
serious threat to society and that his conduct in committing
the offense was outrageously or wantonly vile, horrible, or
inhuman in that it involved torture, depravity of mind, or
aggravated battery to the victim. See Code § 19.2-264.2. The
jury fixed the defendant's punishment for the non-capital
offenses as follows: life imprisonment for the robbery, 20
years imprisonment for the malicious wounding, and three
sentences of three years each for the illegal use of a firearm
convictions. After considering a report prepared by a
probation officer pursuant to Code § 19.2-264.5, the circuit
court sentenced the defendant in accord with the jury's
verdict. Green did not appeal his non-capital convictions.
Therefore, those convictions are not before this Court and are
not affected by this opinion. We consolidated the automatic
review of the defendant's death sentence with his appeal of
the capital murder conviction. Code § 17.1-313(F).
III.
A.
The defendant argues that the circuit court erred by
overruling his motion to strike for cause prospective jurors
Charles Overby and Edith Pearson. The defendant contends that
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Overby and Pearson were not impartial and that the circuit
court abused its discretion when it refused to remove them
from the venire. Responding, the Commonwealth states that the
circuit court properly overruled the defendant's motion to
strike Overby and Pearson.
B.
Charles Overby
The following colloquy occurred during the voir dire of
Charles Overby.
"THE COURT: Have you expressed or formed any
opinion about the guilt or innocence of the accused?
"MR. OVERBY: No, sir.
"THE COURT: Do you know of any bias or
prejudice whatsoever which would keep you from being
able to give a fair trial both to the Commonwealth
and to the accused?
"MR. OVERBY: I only believe in the Bible, an
eye for an eye, tooth for a tooth.
"THE COURT: This case involves the possibility
of capital punishment. Do you have any opinion such
as would prevent you from convicting anyone of an
offense punishable with death?
"MR. OVERBY: No, sir.
"THE COURT: Could you never vote to impose the
death penalty?
"MR. OVERBY: I don't know about that.
"THE COURT: Would you find it impossible to do
that?
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"MR. OVERBY: I don't know. That would be
. . . hard.
"THE COURT: Would you find it impossible to?
Would you not be able to consider it at all? Would
you refuse to even consider it?
"MR. OVERBY: No. I would consider it.
"THE COURT: If you were sitting as a juror in
this case and the jury were to convict the defendant
of capital murder, you are saying you could consider
the death penalty?
"MR. OVERBY: Yes, sir.
. . . .
"[COMMONWEALTH'S ATTORNEY]: This is a two part
trial. If you find the defendant guilty beyond a
reasonable doubt of capital murder, you will then
hear more evidence before deciding between the death
penalty or life imprisonment without parole. After
the guilty finding — Would you be willing to listen
to further evidence after the guilty finding from
the Commonwealth and the defense before finding the
appropriate sentence for the defendant?
"MR. OVERBY: Yes, ma'am.
"[COMMONWEALTH'S ATTORNEY]: Okay. In the
second phase the Commonwealth may introduce evidence
in aggravation of the offense. The defendant may
produce evidence in mitigation of the offense.
After this, would you then impose a sentence on the
defendant either to death or to life imprisonment
without parole?
"MR. OVERBY: Yes, ma'am.
"[COMMONWEALTH'S ATTORNEY]: You understand how
the two part procedure would be?
"MR. OVERBY: Yes, ma'am.
"[COMMONWEALTH'S ATTORNEY]: All right. Would
you be able to consider both the death penalty as
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you have answered for the Judge and also life in
prison without parole and impose either one based
only on the law and the evidence that you receive?
"MR. OVERBY: Yes, ma'am.
. . . .
"[DEFENDANT'S ATTORNEY]: Would you always vote
to impose the death penalty in every case where a
defendant is found guilty of a capital offense?
"MR. OVERBY: Yes, sir. If it was proven
guilty, yes, sir, I would vote for guilty.
"[DEFENDANT'S ATTORNEY]: If the Commonwealth
proves it beyond a reasonable doubt that the
defendant committed a capital offense, you would
vote for the death penalty?
"MR. OVERBY: Yes.
"[DEFENDANT'S ATTORNEY]: You would not give
any consideration to a lesser penalty?
"MR. OVERBY: No. He didn't give his victim
consideration when he took their life.
. . .
"[COMMONWEALTH'S ATTORNEY]: Mr. Overby, when I
asked you my series of questions, I asked you
whether you would be able to consider the death
penalty in a capital murder case and also whether
you would be able to consider life without parole in
a capital murder case, and your answers were, yes,
you would be able to consider both. Would you be
able — If a person was convicted of capital murder,
would you be able to consider both the death penalty
and life without parole?
"MR. OVERBY: Yes.
"[COMMONWEALTH'S ATTORNEY]: Thank you.
"[DEFENDANT'S ATTORNEY]: That prompts a
follow-up. I'm still not sure that —
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"THE COURT: May I interrupt a moment?
"[DEFENDANT'S ATTORNEY]: Yes, sir.
"THE COURT: I think it's important, and maybe
we haven't done it since you are asking it that way,
that Mr. Overby be told what the two possibilities
are because he gave me the same answer he just gave
[the Commonwealth's attorney], and I think he needs
to know that. And if you wish to do that, that's
fine.
"[DEFENDANT'S ATTORNEY]: The two
possibilities, Mr. Overby, if [the defendant] is
found guilty of a capital offense would be, one,
death and, number two, life without parole. And
what we would all like to be sure is that if the
Commonwealth proves beyond a reasonable doubt he's
guilty of a capital offense, are you going to vote
automatically for death or can you give it your
consideration to vote for life without parole?
"MR. OVERBY: I would give consideration to
vote for life, but still there again, as I said, I
would vote an eye for an eye as the Bible says.
"[DEFENDANT'S ATTORNEY]: I don't know how to
interpret that. What I'm thinking, you correct me
if I'm wrong, that what you are saying is if he is
proved guilty beyond a reasonable doubt of a capital
offense you are going to vote death?
"MR. OVERBY: I think it should be. Right,
yes, sir."
After the defendant's counsel made a motion to strike
Overby from the venire for cause, the circuit court, denying
the motion, responded:
"As I understand Mr. Overby's answers to this
particular question is that though he has a personal
belief he could consider what the law calls for, and
that's the question that has to be answered here.
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The Court overrules the motion to strike Mr. Overby
for cause."
C.
Edith Pearson
The following colloquy occurred during the voir dire of
Edith Pearson.
"THE COURT: Do you have any interest in the
trial or the outcome of this case?
"MS. PEARSON: No, sir.
"THE COURT: Do you know anything about it?
Have you ever read about it, heard about it?
"MS. PEARSON: Read a little bit in the paper.
"THE COURT: You read about it in the paper?
"MS. PEARSON: Yes.
"THE COURT: Have you formed any opinion or
expressed any opinion as to the guilt or innocence
of [the defendant]?
"MS. PEARSON: No. I suppose he is guilty.
"THE COURT: Ma'am?
"MS. PEARSON: I suppose he is guilty.
"THE COURT: Is that because he is charged with
the crime?
"MS. PEARSON: No.
"THE COURT: Why do you suppose he is guilty?
"MS. PEARSON: Well, from just what I read.
They say he was there.
"THE COURT: So you're going by what you read
in the newspaper?
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"MS. PEARSON: Yes, sir.
. . . .
"THE COURT: Do you understand that every
defendant is presumed to be innocent throughout the
course of the trial?
"MS. PEARSON: Yes, sir.
"THE COURT: And that the burden is on the
Commonwealth to prove a defendant guilty beyond a
reasonable doubt?
"MS. PEARSON: Yes, sir.
"THE COURT: And do you understand that the
defendant doesn't have to produce any evidence?
That's all on the Commonwealth.
"MS. PEARSON: Yes, sir.
. . ..
"[DEFENDANT'S ATTORNEY]: Do I understand you
to say in answer to the Judge's questions that you
suppose the defendant is guilty because of what you
read in the papers?
"MS. PEARSON: Yes.
"[DEFENDANT'S ATTORNEY]: Does that mean that —
Do you feel like the defense is going to have to
prove him innocent to you if you sit as a juror?
"MS. PEARSON: Yes, I suppose I do.
"[DEFENDANT'S ATTORNEY]: That we will have to
prove him innocent?
"MS. PEARSON: Uh-huh.
[DEFENDANT'S ATTORNEY]: If we presented no
evidence at all, the defense, then am I assuming
correctly that you have made up your mind that you
would find him guilty of the charge?
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"MS. PEARSON: Yes.
"[DEFENDANT'S ATTORNEY]: You would?
"MS. PEARSON: Yes.
"[DEFENDANT'S ATTORNEY]: Judge —
"THE COURT: I think you are asking only one
side of it, and I would ask you to ask her whether —
Because the burden is on the Commonwealth to prove
him guilty. You're not asking that. You're asking
the one way.
"[DEFENDANT'S ATTORNEY]: I will ask the other
way.
The Judge has asked you if you realize the
burden is on the Commonwealth to prove this accused
guilty?
"MS. PEARSON: Uh-huh.
"[DEFENDANT'S ATTORNEY]: Do you understand
that it's their burden?
"MS. PEARSON: Yes.
"[DEFENDANT'S ATTORNEY]: Do you understand
that the defense under the law doesn't have to
produce any evidence?
"MS. PEARSON: Yes.
"[DEFENDANT'S ATTORNEY]: All right.
Understanding that, if we don't, is your verdict in
this case — Are you telling us right now it's going
to be guilty if we don't produce any evidence, the
defense?
"MS. PEARSON: I feel so.
"[DEFENDANT'S ATTORNEY]: You think so?
"MS. PEARSON: Yes.
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"THE COURT: May I ask the question because
what's concerning me is that — Suppose the
Commonwealth does not prove beyond a reasonable
doubt that he's guilty, how would you feel then?
"MS. PEARSON: I suppose I'll find him innocent
then.
"THE COURT: Okay. Then you realize the
defense doesn't have to say anything?
"MS. PEARSON: Yes, sir.
"THE COURT: All right. So even though walking
in here today from what you have read in the paper
you have a feeling that he's guilty?
"MS. PEARSON: Yes, sir.
"THE COURT: Could you keep an open mind and
wait for it to be proven?
"MS. PEARSON: Yes, sir."
At the conclusion of the voir dire of Pearson, the
defendant made a motion to strike her for cause. The circuit
court denied the motion and stated:
"Ms. Pearson is not the most verbal person we
have interviewed. She says that she has formed an
opinion, but it's very shallow. It's not based on
facts or any deep seated beliefs when we examined
it. The Court feels that she is qualified. I don't
think that her answers show that she has any opinion
that would be set in stone and would not be changing
constantly as she heard the evidence, which is what
we want jurors to do, is to listen to all of it.
The Court finds Ms. Pearson can do that and will
seat her."
D.
The following principles are pertinent to our resolution
of the defendant's contention that the circuit court abused
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its discretion in failing to grant his motions to strike
Overby and Pearson. Initially, we observe that the right of
an accused to trial by an impartial jury is a constitutional
right. U.S. Const. Amends. VI and XIV; Va. Const. Art. 1,
Sec. 8. Additionally, Code § 8.01-358 and Rule 3A:14 provide
that members of the venire must "stand indifferent in the
cause."
We have stated that a prospective juror
"must be able to give [the accused] a fair and
impartial trial. Upon this point nothing should be
left to inference or doubt. All the tests applied
by the courts, all the enquiries made into the state
of the juror's mind, are merely to ascertain whether
[the juror] comes to the trial free from partiality
and prejudice.
"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
should also flow through channels as free from
suspicion as possible."
Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879);
accord Barker v. Commonwealth, 230 Va. 370, 374-75, 337 S.E.2d
729, 732-33 (1985); Justus v. Commonwealth, 220 Va. 971, 976,
266 S.E.2d 87, 90-91 (1980); Breeden v. Commonwealth, 217 Va.
297, 298, 227 S.E.2d 734, 735 (1976).
On appellate review, this Court must give deference to
the circuit court's determination whether to exclude a
prospective juror because that court was able to see and hear
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each member of the venire respond to questions posed. The
circuit court is in a superior position to determine whether a
prospective juror's responses during voir dire indicate that
the juror would be prevented from or impaired in performing
the duties of a juror as required by the court's instructions
and the juror's oath. Lovitt v. Commonwealth, 260 Va. 497,
510, 537 S.E.2d 866, 875 (2000); Vinson v. Commonwealth, 258
Va. 459, 467, 522 S.E.2d 170, 176 (1999), cert. denied, 530
U.S. 1218 (2000); Stewart v. Commonwealth, 245 Va. 222, 234,
427 S.E.2d 394, 402, cert. denied, 510 U.S. 848 (1993). We
must consider the voir dire as a whole, and not the juror's
isolated statements. Clagett v. Commonwealth, 252 Va. 79, 90,
472 S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122
(1997). And, the circuit court's refusal to strike a juror
for cause will not be disturbed on appeal unless that decision
constitutes manifest error. Clagett, 252 Va. at 90, 472
S.E.2d at 269; Roach v. Commonwealth, 251 Va. 324, 343, 468
S.E.2d 98, 109, cert. denied, 519 U.S. 951 (1996); Stockton v.
Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 200, cert.
denied, 502 U.S. 902 (1991).
E.
Applying the aforementioned principles, we hold that the
circuit court abused its discretion and that such abuse of
discretion constituted a manifest error when the circuit court
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failed to remove Overby and Pearson from the venire. And, we
hold that the seating of the two jurors requires a reversal of
the circuit court's judgment confirming the jury's
convictions.
As the above-referenced colloquy indicates, Overby
possessed a firm belief in the adage, "an eye for an eye,
tooth for a tooth." He stated that if the Commonwealth proved
beyond a reasonable doubt that the defendant had committed a
capital offense, he would vote to fix the defendant's penalty
at death and that he would not give any consideration to a
lesser penalty because the defendant "didn't give his victim
consideration when he took [her] life."
Even though Overby, in response to questions raised by
the circuit court and the Commonwealth's attorney, indicated
that he would consider both the imposition of the death
penalty and life without parole if the defendant were
convicted of capital murder, Overby exhibited a strong belief
that if the defendant committed a capital offense, he should
be sentenced to death. At the conclusion of his voir dire,
Overby reasserted that he would vote to sentence the defendant
to death if the Commonwealth proved beyond a reasonable doubt
that the defendant had committed a capital offense. We can
only conclude from Overby's responses to the voir dire
questions that he had formed a fixed opinion about the
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punishment that the defendant should receive if the defendant
were convicted of a capital offense and, thus, Overby was not
impartial and "indifferent in the cause."
We also hold that the circuit court abused its discretion
in seating Pearson and that such abuse of discretion
constituted manifest error. As the above-referenced colloquy
indicates, Pearson had formed opinions which clearly indicate
that she was not indifferent in the cause. Pearson initially
informed the circuit court that she "suppose[d]" that the
defendant was guilty. She had formed that opinion because she
had read in a newspaper that the defendant was present when
the crimes occurred.
Even though Pearson subsequently stated, in response to
questions from the circuit court and the Commonwealth's
attorney, that she understood the defendant was presumed to be
innocent and that the Commonwealth was required to prove him
guilty beyond a reasonable doubt, she later made conflicting
statements. For example, after Pearson had informed the
circuit court that she believed the defendant was presumed to
be innocent throughout the course of the trial, Pearson
informed the defendant's attorney that the defendant would
have to prove his innocence and that if the defendant
presented no evidence at all, she would find him guilty of the
charges.
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After the defendant's attorney reminded Pearson that the
circuit court had informed her that the Commonwealth has the
burden to prove the defendant's guilt, Pearson, nonetheless,
stated that she would find the defendant guilty if the
defendant failed to produce any evidence. Although Pearson
stated in response to the circuit court's inquiry that she
"suppose[d]" that she would find the defendant innocent if the
Commonwealth failed to prove his guilt beyond a reasonable
doubt, her voir dire, when reviewed in its entirety, compels
us to conclude that she had formed firm opinions which would
have impaired her ability to be impartial and stand
indifferent in the cause.
We have stated that "[b]y ancient rule, any reasonable
doubt as to a juror's qualifications must be resolved in favor
of the accused." Breeden, 217 Va. at 298, 227 S.E.2d at 735.
In Dejarnette v. Commonwealth, 75 Va. (1 Matt.) 867 (1881), we
ruled that the circuit court should have removed a venireman
who equivocated when asked if he had formed a fixed opinion
about the accused's guilt. And, we emphasized that the
juror's assertions that he could give the defendant a fair
trial did not purge the taint. Id. at 872. Indeed, we stated
in Armistead v. Commonwealth, 38 Va. (11 Leigh) 688, 695
(1841), that "however willing [the juror] may be to trust
himself, the law will not trust him."
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A defendant is entitled to a trial by jurors who stand
indifferent in the cause. Even though circuit courts have
wide latitude in the seating of jurors, courts must be mindful
that if any reasonable doubt exists regarding whether a juror
stands indifferent in the cause, that doubt must be resolved
in favor of the defendant. A juror's ability to give a
defendant a fair and impartial trial must not be left to
inference or doubt.
IV.
We will reverse that part of the judgment of the circuit
court that confirmed the capital murder conviction and the
sentence of death. We will remand this case to the circuit
court for a new trial on the capital murder offense. See
Burks v. United States, 437 U.S. 1, 15 (1978). The
defendant's non-capital convictions are not before this Court
and are not affected by this opinion.
Reversed and remanded.
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