COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp ∗
Argued at Alexandria, Virginia
CALVIN LEE BARRETT
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1829-99-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Stephen C. Harris for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
On June 8, 1999, Calvin Lee Barrett was convicted by a jury
of assaulting a police officer in violation of Code § 18.2-57(C)
and driving after having been adjudicated an habitual offender
(second or subsequent offense) in violation of Code § 46.2-357.
He was sentenced to prison terms of three years and five years,
respectively. He claims on appeal that the trial court erred in
refusing to grant his motion to strike for cause from the jury
∗
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the brother of one of the Commonwealth's witnesses. For the
reasons that follow, we affirm.
FACTS
On December 17, 1998, Barrett was operating an automobile
in the City of Charlottesville. He was observed by Virginia
State Trooper J.S. Fleming, who noted that the vehicle had an
expired license tag and a broken left rear taillight lens held
in place with duct tape. Fleming followed Barrett, and turned
on the blue strobe lights on top of his police cruiser, but did
not sound the siren. Barrett pulled his vehicle into a small
parking lot, opened his door, and began to walk away from the
vehicle. When Fleming "hollered" for Barrett to stop, Barrett
continued to move away from the officer. Fleming followed, took
Barrett's arm, and escorted him toward the police cruiser.
Barrett broke away from the officer, however, and a series of
struggles ensued as Fleming unsuccessfully attempted to arrest
Barrett. Ultimately, as the situation escalated, Fleming drew
his service weapon. Barrett re-entered his vehicle and backed
up, hitting Fleming's cruiser before moving forward. Fleming,
having seized Barrett through the window of the car with one
arm, held on as the vehicle moved. When Barrett began to drive
the car forward, Fleming shot Barrett in the chest.
Charlottesville Police Officer Charles Wade arrived on the
scene after the incident had ended. Other Charlottesville
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police officers were already present, and Officer Wade saw
Fleming seated in the rear of a marked Charlottesville police
cruiser and Barrett lying on the ground. He assisted in the
investigation of the scene by putting up the yellow "DO NOT
ENTER" tape to secure the crime scene, and by examining the area
for physical evidence.
Barrett was taken to the University of Virginia Hospital,
where he was treated for the gunshot wound. On December 20,
1998, he was arrested at the hospital on the charges for which
he was subsequently convicted. During voir dire, defense
counsel asked a series of questions to prospective juror James
Wade. After establishing that Wade's brother was expected to be
one of the Commonwealth's witnesses, he was asked, "if 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 a
natural . . . 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?" Wade responded, "I'm an
impartial person." In a subsequent query, defense counsel
asked, "[W]ouldn'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?" To this
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question, Wade answered, "Truthfully, yes." The same question,
rephrased, was posed again several times by defense counsel, to
which Wade responded, in essence, that he could put aside his
relationship with the witness and arrive at a fair and impartial
verdict. He explained his earlier answer by stating that, while
by "instinct" he would probably tend to favor his brother's
testimony, he was certain he could put it aside and be
impartial. See Appendix, infra.
Defense counsel's motion to strike Wade for cause was
denied.
ANALYSIS
"Per se rules of disqualification which are based on 'a
presumption of [juror] bias or prejudice' are disfavored in
Virginia." McGann v. Commonwealth, 15 Va. App. 448, 454, 424
S.E.2d 706, 710 (1992) (quoting Scott v. Commonwealth, 1 Va.
App. 447, 452, 339 S.E.2d 899, 901 (1986)) (additional citation
omitted); see Williams v. Commonwealth, 21 Va. App. 616, 466
S.E.2d 754 (1996) (en banc) (a venireman who worked as a
correctional officer was not per se disqualified from being a
juror in a case where the defendant was charged with assaulting
a correctional officer). We noted in Williams that "[a] per se
rule in Virginia has been approved only where the venireman knew
of an accused's prior conviction for the same offense; stood in
a near legal relationship to the victim of the accused; or was a
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part owner of a victim bank," the relevant question being
whether the juror could be fair and impartial. 21 Va. App. at
618-19, 466 S.E.2d at 756 (citations omitted).
In Lilly v. Commonwealth, 255 Va. 558, 569-70, 499 S.E.2d
522, 531 (1998), rev'd and remanded on other grounds, 527 U.S.
116, on remand, 258 Va. 548, 523 S.E.2d 208 (1999), the Supreme
Court of Virginia held that when the
officer's sole role in a criminal
prosecution is as a witness, he is not a
"party . . . ." Thus, a juror's relationship
to such a police officer-witness does not
require per se dismissal of that juror from
the venire, and the juror may be retained if
the trial court is satisfied that the juror
can set aside considerations of the
relationship and evaluate all the evidence
fairly.
(Citations omitted).
"[T]he trial court's denial of a motion to strike a
prospective juror for cause constitutes an exercise of
discretion that will not be disturbed on appeal, unless manifest
error appears on the record." Pope v. Commonwealth, 234 Va.
114, 123-24, 360 S.E.2d 352, 358 (1987). This deference is
afforded because "the trial judge has the opportunity, which
[the appellate court] lack[s], to observe and evaluate the
apparent sincerity, conscientiousness, intelligence, and
demeanor of prospective jurors first hand . . . ." Id. In
reviewing the trial court's determination of the question, the
entire voir dire must be examined, not just isolated statements.
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See Chrisman v. Commonwealth, 3 Va. App. 371, 373, 349 S.E.2d
899, 901 (1986) (citations omitted).
The voir dire of Juror Wade, in its entirety, makes clear
that he could set aside his relationship to the officer-witness
and fairly try the case. Wade did not discuss the case with his
brother at any time. When asked if he would be unduly swayed by
his relationship to Officer Charles Wade, or whether he would
favor or tend to believe his brother's testimony because of the
relationship, he responded in the negative, stating, "I'm an
impartial person." He stated repeatedly and without
equivocation that he could put aside the relationship.
The record clearly shows that the trial court did not err
in refusing to strike Wade for cause, and we affirm the court's
decision.
Affirmed.
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APPENDIX
The relevant portion of the voir dire to which Wade
responded is as follows:
[DEFENSE COUNSEL]: Mr. Wade, your brother
is one of the Commonwealth's witnesses?
MR. WADE: Yes.
[DEFENSE COUNSEL]: A Charlottesville police
officer. How long has he been a policeman
in Charlottesville?
MR. WADE: Twenty-four, twenty-five years.
* * * * * * *
[DEFENSE COUNSEL]: Okay. Did you and your
brother, who is a Charlottesville policeman
who is one of the Commonwealth's witnesses
here today, and what is his name by the way?
MR. WADE: Charles, Charlie.
[DEFENSE COUNSEL]: Charlie Wade. Did you
ever discuss the facts of this incident with
your brother?
MR. WADE: No.
* * * * * * *
[DEFENSE COUNSEL]: I think my question to
you would be this, based on . . . having
your brother, Charlie Wade, as one of the
Commonwealth's witnesses, a long time
Charlottesville Police Department [sic], if
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 a natural . . . 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?
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MR. WADE: Are you asking me would I or
would it be natural?
[DEFENSE COUNSEL]: How does that apply to
you?
MR. WADE: I'm an impartial person.
[DEFENSE COUNSEL]: Yes sir, and I
understand that you would . . . if you're
allowed to serve on this jury you would take
an oath and do your best to abide by [sic].
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?
MR. WADE: Truthfully, yes.
* * * * * * *
[PROSECUTOR]: Is that something that in
knowing that a juror is required to put
aside the question of acquaintance or
relationship, is that something you can do?
Put aside your acquaintance with officers,
your relationship with them?
MR. WADE: Yes.
[PROSECUTOR]: And do you have any question
in your mind about that?
MR. WADE: No, sir.
[PROSECUTOR]: Are you hesitant in your
feeling about whether you can put aside your
acquaintance and relationship with . . .
MR. WADE: I'm not hesitant of that.
* * * * * * *
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[DEFENSE COUNSEL]: Well, I've got a . . .
I'll just ask you the same question all over
again. You remember my question?
MR. WADE: You asked me if it was . . . I
think what you're getting at is you're
asking me whether there's any likelihood or
the vaguest little bit of favoritism.
[DEFENSE COUNSEL]: Is it possible that you
will favor, even a little bit, your
brother's testimony over my client or some
witness for him who's not a policeman who
you don't know?
MR. WADE: That's not the way you asked me
the first time as I recall.
[DEFENSE COUNSEL]: All right, well what's
your answer to this question?
MR. WADE: My answer is . . . would be, the
way you just now stated it, would be no.
[DEFENSE COUNSEL]: All right. What do you
recall my first question be [sic] to you?
[PROSECUTOR]: Judge, I'm going to ask that,
that the juror be asked a question, not what
do you recall my last question to be. I
think that's not an appropriate question.
THE COURT: Well, I've got some real concern
about it, so maybe if I could pick up on it
at this point.
[DEFENSE COUNSEL]: Yes, sir, please do.
THE COURT: I understand you to say, sir,
that you would have some problem deep down
if there was a question of your brother's
credibility or a police officer's
credibility versus somebody you didn’t know
taking the stand.
MR. WADE: I did . . . when he initially
asked me that question, the way he phrased
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it to me initially I did say [sic]. But
then he asked it in a different way as far
as if I would show any partiality on my
brother's testimony, and my answer would be
no.
THE COURT: All right, now maybe I'm not
understanding your answer now. I mean, are
you saying that you wouldn't deep down have
any problem, in other words that it would
not present a problem to you?
MR. WADE: My brother's testimony, being my
brother, as far as his testimony, would not
create a problem for me.
THE COURT: In other words you wouldn't have
a tendency to believe your brother over
somebody else you didn't know or a non
police officer?
MR. WADE: I don't think I would, no, sir.
THE COURT: All right, sir. All right, now,
any follow up?
[DEFENSE COUNSEL]: What about . . . whether
it was your brother or some other police
officer that you know or the fact that it's
a Virginia State Trooper who's going to be
one of the prime witnesses against my
client, does their credibility in your eyes
have any variance?
MR. WADE: No, sir.
* * * * * * *
[DEFENSE COUNSEL]: What did you have a
. . . why did you answer the way you did
when I asked the first question that you
said there may be a problem?
MR. WADE: You stated, you stated your first
question in respect to my testimony because
of my feelings as far as my brother's
testimony, you asked in a two fold [sic].
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[DEFENSE COUNSEL]: All right.
MR. WADE: And the second part is when you
went in . . . you asked a question
initially, and then you went in and started
emphasizing the fact more deeply as what I
interpreted what you were trying to get from
me because of my relationship with Officer
Wade.
[DEFENSE COUNSEL]: All right.
MR. WADE: But I also stated that his
testimony would not, his testimony I would
judge just like I would Sergeant Payne's or
Officer West, with whom I know [sic],
Officer Bishop I know. I would listen to
their testimony and take judgment of that.
[DEFENSE COUNSEL]: My question, my question
is why did you say there might be a problem
in any way because of my question? What was
the problem that I brought up that you
agreed with?
MR. WADE: I cannot word for word quote to
you how you put it, but you asked me the
question and I answered you initially that
it would not affect my judgment. And then
you said in the most instinct or distinct
way as far as something, and I said well, it
probably would.
[DEFENSE COUNSEL]: All right, then
following up with that, isn't it possible,
because of your brother being the police
officer and being the Commonwealth's
witness, that in spite of your best efforts,
something, partiality wise or believability
wise, will creep in to your filtering and
thinking about the evidence in the case if
you're allowed to sit as a juror that may be
unfair to my client?
MR. WADE: No.
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