COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
BOBBY MORRELL PATTERSON
OPINION BY
v. Record No. 2677-01-2 JUDGE ROBERT P. FRANK
FEBRUARY 4, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Charles L. Weber, Jr., for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Bobby Morrell Patterson (appellant) was convicted in a jury
trial of abduction with intent to defile, in violation of Code
§ 18.2-48; use of a firearm in that abduction, in violation of
Code § 18.2-53.1; robbery, in violation of Code § 18.2-58;
attempted forcible sodomy, in violation of Code §§ 18.2-67.1 and
18.2-67.5; and malicious wounding, in violation of Code
§ 18.2-51. On appeal, he contends the trial court erred in
refusing to strike a juror for cause. For the reasons stated,
we reverse his convictions and remand the case.
I. BACKGROUND
After several veniremen were struck for cause, John Ryder
was called as a potential juror. During voir dire of the entire
panel, the following exchange occurred:
THE COURT: Have any of the three of you
acquired any information about this alleged
offense or about the accused from the news
media or any other source?
MR. RYDER: Yes.
THE COURT: All right, sir. Without telling
me the specific details of anything that you
might have heard or learned, just tell me
the general source of the information. Was
it something you heard from someone or -–
MR. RYDER: I'm a police officer.
THE COURT: All right. So you heard some
talk? Is that the gist of it?
MR. RYDER: I'm not going to tell you what I
heard. I was a police officer in this
county for forty-three years and I still
talk to the other police officers about
different things, about inmates and things.
THE COURT: All right. Having acquired that
information or having had those
conversations, would the information that
you have obtained affect your ability to be
impartial in the case?
MR. RYDER: I can't honestly say.
THE COURT: Well, would you -– considering
what you might have heard, do you believe
that you could sit as a member of this jury
and keep an open mind and wait until the
entire case is presented before you rendered
any type of verdict?
MR. RYDER: I don't know, sir.
Charles L. Weber, Jr., appellant's counsel, conducted the
following voir dire of Mr. Ryder:
MR. WEBER: Mr. Ryder, I would ask you, your
years of service with the police department,
would that influence your capacity to judge
all the testimony fairly and evenly or would
you tend to believe or credit a law
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enforcement officer more than say anyone
else?
MR. RYDER: No.
MR. WEBER: You think you could listen —-
MR. RYDER: I could listen to the evidence
(unintelligible).
MR. WEBER: But you have spoken to specific
law enforcement officers about this case?
MR. RYDER: Yes, sir.
* * * * * * *
MR. WEBER: [Y]ou had indicated, quite
frankly, that you had spoken about this case
with other law enforcement officers that are
involved in the case?
MR. RYDER: I don't know if they're involved
or not, sir.
MR. WEBER: But did they talk to you about
specific evidence that they may or may not
have uncovered during the course of the
investigation?
MR. RYDER: We did talk about it. It wasn't
—- it wasn't like, you know, this person did
this and this happened or that happened and
that happened. It was general conversation.
What happened there on the road or somebody
in a wheelchair abducted this person. I
didn't know either one of them.
MR. WEBER: Did they talk to you about
evidence that they had collected?
MR. RYDER: No, sir, I don't believe so.
MR. WEBER: Is there anything about the
conversations you had with the police
officers involved in this case or not
involved in the case, but the police
officers associated, I assume, with the
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Orange County Sheriff's Department 1 that
would lead you to question your
impartiality, your ability to judge it only
on the evidence that's presented in court?
MR. RYDER: No, sir. I would judge it only
on the evidence I was given. I don't know
this guy or the lady involved or anybody,
just what you hear.
The prosecutor, Timothy E. K. Sanner, then asked:
MR. SANNER: So, Mr. Ryder, if I understand
it correctly, you feel that while you may
have heard something about the case, that I
gather you understand that whatever you
heard was not evidence.
MR. RYDER: Right.
MR. SANNER: And may or may not be accurate.
Is that true?
MR. RYDER: Right.
MR. SANNER: So do you feel that in the
course of your deliberations here today that
you can set aside completely what you've
heard before and base your decision here
today solely upon the law and the evidence
that may be presented?
MR. RYDER: Oh, yes. Sure.
Ryder also indicated he had no interest in the trial or its
outcome, that he had not formed any opinion as to the guilt of
the accused, that he was not aware of any bias or prejudice,
that he understood the accused was presumed innocent, and that
he understood the Commonwealth must prove guilt beyond a
reasonable doubt.
1
The crimes occurred in Orange County, and the Orange
County Sheriff's Department was involved in the investigation of
the crimes.
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Appellant moved to strike Ryder because of concern that he
might not be impartial, based on his conversations with officers
of the Orange County Sheriff's Department. In denying
appellant's motion, the trial court explained:
THE COURT: All right. Well, I listened
very carefully to his examination at both
junctures. He expressed perhaps some vague
reservations when he was first questioned
about the subject. Then, of course, he was
called in for individual voir dire. At that
point he made it clear and it became
apparent that the only information he was
privy to consisted of some general
conversations. He indicated, I believe on
his own or perhaps in response to a
question, that he didn't know the defendant
or either one of them and didn't have any
specific discussions about evidence, simply
a cursory or general conversation and beyond
that, the court observed his demeanor,
watched him very carefully, listened to the
questions that were asked and the answers
that were given but also watched very
closely the manner in which he answered the
questions and the demeanor that he exhibited
in giving his answers and the court finds
that on individual voir dire, why any
possible reservations that he might have had
certainly at that point were eliminated.
The court finds that Mr. Ryder gave us
information that was forthright and
straightforward and he indicated that he
would be able to judge the case solely based
on the law and the evidence and I think the
word he used to describe that process when
he was asked if that was what he was
supposed to do, I think he said exactly.
But in any event, the motion to strike him
for cause will be denied. Your exception is
noted for the record.
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II. ANALYSIS
Appellant posits three reasons why the trial court erred in
denying his motion to strike Ryder for cause: (1) Ryder
initially acknowledged his impartiality was questionable; (2)
Ryder's long association with the Orange County Sheriff's
Department made it unlikely that the public would have
confidence in the integrity of the criminal process; and (3)
Ryder's pre-trial discussion with members of the Orange County
Sheriff's office would undermine public confidence in the
integrity of the criminal process.
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 [sic] 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
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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).
Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451
(2001).
Upon appellate review, this Court defers to a trial court's
decision to retain a prospective juror, and we will not reverse
that decision absent a showing of manifest error. Stewart v.
Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402 (1993). A
trial judge observes the voir dire. Therefore, the trial court
has a superior position from which to evaluate potential jurors'
responses and to determine whether anything will prevent or
substantially impair their performance as required by the court's
instructions and the jurors' oath. Eaton v. Commonwealth, 240
Va. 236, 246, 397 S.E.2d 385, 391 (1990). We review a juror's
responses during the entire voir dire to determine impartiality.
Vinson v. Commonwealth, 258 Va. 459, 467-68, 522 S.E.2d 170, 176
(1999).
Appellant first contends Ryder should have been struck for
cause because he initially expressed doubts that he could be
impartial. During the voir dire by the trial court, Ryder could
not "honestly say" whether the information he acquired from the
Sheriff's Department would affect his impartiality. He did not
know whether, based on what he had heard, he could "keep an open
mind" and wait until all of the evidence was presented before
deciding the case.
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Ryder indicated, in response to leading questions from the
Commonwealth, that he could base his decision "solely upon the
law and the evidence that may be presented." Although a court
should give little weight to affirmative responses to leading
questions, see Williams v. Commonwealth, 14 Va. App. 208, 214-15,
415 S.E.2d 856, 860 (1992), the trial court found Ryder "would be
able to judge the case solely based on the law and the evidence."
Even if we assume this finding was not manifest error, we must
continue our inquiry and review appellant's other challenges.
Appellant also contends Ryder's discussion of appellant's
case with the Orange County Sheriff's Department disqualified him
from service as a juror. Ryder, in response to appellant's
counsel's voir dire, indicated he could set aside what was told
to him by members of the Sheriff's Department and evaluate the
case solely on the evidence presented at trial. Indeed, the
trial court so found.
The constitutional guarantee of an impartial
jury does not contemplate excluding those
who have read or heard news accounts
concerning the case or even exclusion of
those who may have formed an opinion based
on such accounts. Calhoun v. Commonwealth,
226 Va. 256, 258, 307 S.E.2d 896, 897
(1983). Because of today's rapid and
widespread dissemination of news by the
media, it often will be difficult to find
qualified jurors who have not read or heard
of a case of public interest and have not
formed some impression regarding its merits.
Id. The test, instead, is whether a juror
is capable of laying aside a preconceived
opinion and rendering "a verdict solely on
the evidence." Id. at 258, 307 S.E.2d at
898; see also Foley v. Commonwealth, 8
Va. App. 149, 154, 379 S.E.2d 915, 918
(1989).
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Wilmoth v. Commonwealth, 10 Va. App. 169, 173, 390 S.E.2d 514,
516 (1990).
Here, however, the source of the information was not the
news media, but members of the Orange County Sheriff's
Department, an organization with which Ryder had a forty-three
year association. Additionally, members of this department were
likely to testify at trial. Appellant contends the trial court
erred in allowing Ryder, who had a "general conversation" with
members of that department and who initially expressed doubt as
to his impartiality, to remain on the venire panel, as his
presence would erode public confidence in the criminal justice
system.
The Commonwealth argues "public confidence" was not raised
at the trial level and, therefore, appellant is barred from
raising this issue for the first time on appeal. See Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 417 (1994).
While we agree with the Commonwealth that appellant did not
specifically use the words "public confidence" at trial, he did
ask the court to strike the juror for cause, based on his
relationship with the Orange County Sheriff's Department and the
information he received from them. We find, therefore, the
issue of public confidence is not procedurally barred under Rule
5A:18.
The Supreme Court cases on this issue do not indicate that
prior appellants specifically raised "public confidence" at the
trial level, but instead suggest the trial judge must
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specifically consider the effect that placing the venireman on
the jury will have on the public's confidence in the judicial
system. See Barrett v. Commonwealth, 262 Va. 823, 826-27, 553
S.E.2d 731, 732-33 (2001) (listing appellant's arguments, which
did not specifically include "public confidence," but concluding
the trial court erred for failing to strike the potential juror
on public confidence grounds); Medici v. Commonwealth, 260 Va.
223, 226-27, 532 S.E.2d 28, 30-31 (2000) (listing appellant's
arguments, which did not specifically include "public
confidence," but concluding the trial court erred for failing to
strike the potential juror on public confidence grounds); City
of Virginia Beach v. Giant Square Shopping Ctr. Co., 255 Va.
467, 470-71, 498 S.E.2d 917, 918-19 (1998) (listing appellant's
arguments, which did not specifically include "public
confidence," but concluding the trial court erred for failing to
strike the potential juror on public confidence grounds). Here,
appellant made the underlying factual arguments that the trial
court needed to consider when making a ruling based on public
confidence. Therefore, we will not find the issue precluded
from appellate review.
In a series of opinions decided over the last several years,
the Supreme Court of Virginia has clearly found that inherent in
appellate review of impartiality is a determination of whether
"the public would have confidence in the integrity of the
process" if the prospective juror remained. In Giant Square
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Shopping Ctr. Co., for example, the Court found a trial court
erred in refusing to strike for cause a prospective condemnation
commissioner who was a current and past client of one party's
attorney, even though the prospective commissioner indicated he
could be impartial about the subject case. The Court held:
Under these circumstances, it is extremely
unlikely the public would have confidence in
the integrity of the process when a
commissioner has the identity of interests
demonstrated by this prospective
commissioner. This is true even though, as
the record shows, the commissioner is a
"respected member of the community" and
"known to be a man of integrity," who may be
determined to discharge his duties in a
forthright and unbiased manner.
Id. at 471, 498 S.E.2d at 919.
The Supreme Court also addressed "public confidence" in
Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (2000). The Court
found the trial court abused its discretion, holding:
Public confidence in the integrity of the
process is at stake. It cannot be promoted
when a sitting juror is, at the time of
trial, a client of the law firm representing
one of the parties to the litigation as a
result of a similar occurrence.
This is true even though, as the record
shows, the juror states that the
circumstances of her representation would
have no "bearing" on her judgment as a juror
and that she could "be totally fair to both
sides." We have no doubt that [the juror]
was sincere in her beliefs and that she was
determined to discharge her duties in a
forthright and unbiased manner.
Id. at 51, 523 S.E.2d at 504.
In Medici, a potential juror's husband had been murdered.
The person accused of his murder was represented by the Public
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Defender's Office, the same office representing Medici. 260 Va.
at 226, 532 S.E.2d at 30. The juror stated unequivocally that
she could "judge the evidence fairly and impartially." Id.
While recognizing an appellate court must give deference to a
trial court's ruling, the Supreme Court found the trial court
erred in not striking the juror for cause, holding, "While we
have no reason to question Bennett's honesty and sincerity, we
think that permitting her to sit as a juror, in the circumstances
of this case, would weaken public confidence in the integrity of
criminal trials." Id. at 227, 532 S.E.2d at 31.
Barrett also involved striking a juror for cause, when a
prospective juror's brother, a police officer, would testify
during the trial regarding background issues. In finding the
trial court erred, the Supreme Court held:
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). 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
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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.
262 Va. at 826-27, 553 S.E.2d at 733.
We conclude from Medici and its progeny that an analysis of
"public confidence" is inherent in any appellate review of a
juror's impartiality and does not depend solely upon a juror's
explicit acknowledgement of bias. In the cases cited above, the
Supreme Court did not question the juror's belief that he or she
could be impartial.
While we must evaluate impartiality based on the entire voir
dire, giving due deference to the trial court's findings, we must
consider, in a broader sense, whether public confidence in the
judicial process is undermined. Based on the circumstances of
the instant case, we find that the trial court abused its
discretion in not striking Ryder for cause. Because of his long
association with the Sheriff's Department, his conversation with
members of that department concerning this specific case, and his
initial concern about his impartiality, it is "unlikely that the
public would have confidence in the judicial process" used in
this case. Id. at 827, 553 S.E.2d at 733.
We, therefore, reverse appellant's convictions and remand
these matters for a new trial, if the Commonwealth be so advised.
Reversed and remanded.
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