COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued by teleconference
ERNEST OLIVER HILL, JR.
OPINION BY
v. Record No. 1833-00-2 JUDGE ROBERT P. FRANK
AUGUST 14, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ernest Oliver Hill, Jr., (appellant) was convicted by a
jury of rape, in violation of Code § 18.2-61, sodomy, in
violation of Code § 18.2-67.1, breaking and entering, in
violation of Code § 18.2-91, and robbery, in violation of Code
§ 18.2-58. On appeal, appellant contends the trial court erred
in barring defense counsel, on voir dire, from inquiring as to
the prospective jury's duty to consider the full range of
punishments set forth in the applicable statutes. For the
reasons stated herein, we agree with appellant and reverse the
sentencing order of the trial court.
I. BACKGROUND 1
During voir dire, the following exchange took place:
[DEFENSE COUNSEL]: 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.
[DEFENSE COUNSEL]: Judge, my client has a
right to a fair and impartial jury under his
Fourth and Sixth Amendment rights.
THE COURT: I am very familiar with those.
All right. Let's move on.
[DEFENSE COUNSEL]: 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.
[DEFENSE COUNSEL]: I would just quote the
unpublished opinion of Boykin v.
Commonwealth and Fishback --
THE COURT: You know better than that. Go
right along.
[DEFENSE COUNSEL]: Note my exception,
Judge.
THE COURT: Yes, ma'am. I did that once
today.
1
We do not recite the facts of the offense because those
facts are not relevant to the issue before us.
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The jury convicted appellant of burglary, robbery, rape and
sodomy and, in the sentencing phase, fixed his punishment at 110
years in prison. The trial court sentenced appellant to 110
years.
II. ANALYSIS
Appellant contends the trial court's refusal to allow him
to explore the prospective jury's views on the statutory range
of punishment violated his right to an impartial jury on the
question of punishment. Appellant maintains he has a right to
determine possible bias of the veniremen with regard to applying
a broad range of punishment. Without this ability, appellant
contends, he cannot determine whether jurors are irrevocably
biased toward one end or the other of the sentencing spectrum.
The Commonwealth agrees with appellant that a defendant is
entitled to an impartial jury on the question of punishment as
well as guilt. Patterson v. Commonwealth, 222 Va. 653, 658, 283
S.E.2d 212, 215 (1981). However, the Commonwealth contends this
basic right does not permit a defendant to inform the jury,
before the trial has begun, of the range of punishment. The
Commonwealth concludes that the jury should not be
"contaminated" with sentencing information prior to the guilt
phase of the trial.
Code § 8.01-358 states:
The court and counsel for either party
shall have the right to examine under oath
any person who is called as a juror therein
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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
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.
A juror, knowing anything relative to a
fact in issue, shall disclose the same in
open court.
Voir dire is further governed by Rule 3A:14, which states,
in part:
(a) Examination. - After the prospective
jurors are sworn on the voir dire, the court
shall question them individually or
collectively to determine whether anyone:
* * * * * * *
(6) Has a bias or prejudice against the
Commonwealth or the accused; or
(7) Has any reason to believe he might not
give a fair and impartial trial to the
Commonwealth and the accused based solely on
the law and the evidence.
Thereafter, the court, and counsel as
of right, may examine on oath any
prospective juror and ask any question
relevant to his qualifications as an
impartial juror. A party objecting to a
juror may introduce competent evidence in
support of the objection.
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In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757
(1989), the Supreme Court of Virginia reviewed the permissible
scope of voir dire:
Trial courts must afford a party a
"full and fair" opportunity to ascertain
whether prospective jurors "stand
indifferent in the cause." LeVasseur v.
Commonwealth, 225 Va. 564, 581, 304 S.E.2d
644, 653 (1983), cert. denied, 464 U.S.
1063, 104 S. Ct. 744, 79 L.Ed.2d 202 (1984).
However, it is within the trial court's
sound discretion to decide when a defendant
has had such an opportunity. Id., 304
S.E.2d at 653. Further, trial courts are
not required to allow counsel to ask
questions which are so ambiguous as to
render the answers meaningless. See id. at
579, 304 S.E.2d at 652-53. To be
permissible, counsel's questions must be
relevant in that they are such as would
necessarily disclose or clearly lead to the
disclosure of relationship, interest,
opinion, or prejudice. See Code § 8.01-358.
Where a trial court affords ample
opportunity to counsel to ask relevant
questions and where the questions actually
propounded by the trial court were
sufficient to preserve a defendant's right
to trial by a fair and impartial jury, we
will generally not reverse a trial court's
decision to limit or disallow certain
questions from defense counsel. See
LeVasseur, 225 Va. at 582, 304 S.E.2d at
653; Mackall v. Commonwealth, 236 Va. 240,
251, 372 S.E.2d 759, 766 (1988), cert.
denied, 492 U.S. 925, 109 S. Ct. 3261, 106
L.Ed.2d 607 (1989).
Id. at 401, 384 S.E.2d at 764-65.
We discussed the Sixth Amendment right to an impartial jury
in Reynolds v. Commonwealth, 6 Va. App. 157, 367 S.E.2d 176
(1988). We wrote:
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A criminal defendant is guaranteed an
impartial jury by the sixth amendment to the
United States Constitution, which is
applicable to the states by virtue of the
fourteenth amendment. Duncan v. Louisiana,
391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20
L.Ed.2d 491 (1968); United States v.
Thompson, 744 F.2d 1065, 1068 (4th Cir.
1984); Briley v. Commonwealth, 222 Va. 180,
184, 279 S.E.2d 151, 154 (1981). The
principles of due process, embodied in the
fourteenth amendment to the United States
Constitution, also guarantee a defendant's
right to an impartial jury. Ristaino v.
Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017,
1020 n.6, 47 L.Ed.2d 258 (1976). "The
constitutional and statutory guarantee of an
impartial jury is no mere 'legal
technicality,' but a substantive right
scrupulously to be observed in the
day-to-day administration of justice."
Martin v. Commonwealth, 221 Va. 436, 445,
271 S.E.2d 123, 129 (1980). "Voir dire
plays a critical function in assuring the
criminal defendant that his Sixth Amendment
right to an impartial jury will be honored.
Without adequate voir dire the trial judge's
responsibility to remove prospective jurors
who will not be able impartially to follow
the court's instructions and evaluate the
evidence cannot be fulfilled."
Rosales-Lopez v. United States, 451 U.S.
182, 188, 101 S. Ct. 1629, 1634, 68 L.Ed.2d
22 (1981) (citations omitted).
Id. at 164-65, 367 S.E.2d at 179-80.
Code § 19.2-295.1 mandates a bifurcated
proceeding in all felony jury trials. The
statute divides the trial into two distinct
phases. The jury first resolves the issue
of guilt or innocence and, "upon a finding
that the defendant is guilty . . ., a
separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury."
Code § 19.2-295.1 (emphasis added). The
procedure assures the jury access to
"information specific only to sentencing,
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apart from considerations of guilt or
innocence," thereby promoting a punishment
appropriate to the circumstances without
corrupting the initial determination of
guilt or innocence with prejudice. Gilliam
v. Commonwealth, 21 Va. App. 519, 525, 465
S.E.2d 592, 595 (1996); see also Farmer v.
Commonwealth, 10 Va. App. 175, 179, 390
S.E.2d 775, 776-77 (1990), aff'd en banc, 12
Va. App. 337, 404 S.E.2d 371 (1991).
Daye v. Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288
(1996).
The Commonwealth argues that by advising the jury panel
during voir dire of the sentencing range, a defendant will be
"corrupting the initial determination of guilt or innocence."
We disagree with the Commonwealth. In order for counsel to
properly explore whether the jury panel may be irrevocably
biased toward one end or the other of the sentencing spectrum,
it is proper for counsel to inform the panel of the sentencing
parameters.
Clearly, voir dire is not allowed at the sentencing phase
of the bifurcated proceeding. There are no strikes for cause
and no further peremptory challenges because sentencing "shall
be held as soon as practicable before the same jury." Code
§ 19.2-295.
Therefore, defense counsel can only inquire as to a
venireman's impartiality as to punishment during voir dire under
Code § 8.01-358 and Rule 3A:14.
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The appellant was denied a "full and fair" opportunity to
ascertain whether the prospective jurors "stood indifferent in
the cause." Therefore, we reverse the sentencing order and
remand the case for re-sentencing. Counsel may voir dire the
jury panel consistent with this opinion.
Reversed and remanded.
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