Brooks v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia

JOHNNY DENNIS BROOKS
OPINION BY
v. Record No. 1616-95-3 JUDGE SAM W. COLEMAN III
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Phyllis Marie Mosby, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

The defendant was convicted of statutory burglary. On

appeal, he contends that the trial court erred (1) by stating in

a challenged juror's presence that the defendant was challenging

him for cause, (2) by stating in the jury's presence that the

defendant was challenging one of the jurors for cause, (3) by

refusing to hear argument on a motion to strike the juror for

cause until after the jury had been seated and sworn, and (4) by

permitting the Commonwealth to introduce copies of indictments

for the defendant's prior felony convictions during the

sentencing phase of the bifurcated trial.

We hold that the trial court erred by stating in a juror's

presence, which juror the court ruled to be qualified, that the

defendant was challenging him for cause. Therefore, we reverse

the defendant's burglary conviction and remand the case to the
trial court. Because the issue may arise on remand, we further

hold that the indictment for a prior conviction is admissible

during the sentencing phase as part of the "record of conviction"

under Code § 19.2-295.1. The case of Folson v. Commonwealth, 23

Va. App. 521, 478 S.E.2d 316 (1996), holds that an indictment,

which shows the nature of the charged crime, is part of the

record of conviction and, therefore, is admissible. Accordingly,

should a sentencing hearing occur on remand, the trial court may,

in the exercise of its sound discretion, admit so much of the

indictment for a prior conviction as may be material and

relevant.
Finally, because we disapprove of the practice utilized by

the trial court of waiting until after the jury is sworn to hear

argument on the juror challenge for cause, we use this occasion

to caution against such practice.

FACTS

In response to a question by defense counsel during jury
voir dire, one of the veniremen stated that he had served as a

member of a "life saving crew" for about thirteen years with a

police officer who would be one of the Commonwealth's principal

witnesses. The venireman, Mr. Hankins, stated that he and the

officer were "good friends" and "occasionally" did things

together. When asked whether he would "put a lot of stock in

what [the officer] testifies to in Court," Hankins responded,

"[t]hat's possible, yes ma'am." Defense counsel then asked

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Hankins whether he might favor the officer's testimony over that

of the defendant or one of the defendant's witnesses. Hankins

replied, "[i]t's a good possibility."

At that point, defense counsel stated she had a motion to

make. The Commonwealth's attorney requested an opportunity to

examine the venireman. The prosecutor asked Hankins whether he

could base his decision in the case "solely on the testimony of

the witnesses and not on any friendship" with a witness. Hankins

stated, "I think I, yes sir, think so . . . [y]es sir." When

asked whether his friendship with the officer would keep him from

being a fair and impartial juror, Hankins responded, "I don't

think so."
Defense counsel again requested the opportunity to make a

motion. In the presence of the jury panel, the trial judge and

defense counsel had the following exchange:
DEFENSE COUNSEL: Your Honor, I still have a
motion.

THE COURT: Alright.

DEFENSE COUNSEL: Should I do it outside the
presence of . . . ?

THE COURT: Are you moving that Mr. Hankins
be stricken, is that your motion, by virtue
of his answers? You want to be heard on
that, Mr. Fuller? [Mr. Fuller is the
Commonwealth's attorney.].

PROSECUTION: Well, I mean I think his
answers indicate that he could be a fair and
impartial juror.

THE COURT: I think he has indicated that he
can decide the case on the evidence rather
than on friendship and that he can serve as a

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 fair and impartial juror on the case.

DEFENSE COUNSEL: Your Honor, can I just make
my motion please outside of the presence?

THE COURT: Alright, we'll preserve it and do
it later. Alright.

The trial judge then ruled that the jury panel was qualified and

directed the parties to exercise their peremptory challenges.

The Commonwealth peremptorily struck venireman Hankins. After

the peremptory strikes, the jury was sworn and the remaining

venire members were excused.
At that point, the trial judge permitted defense counsel to

make the record by stating her argument in support of the motion

to strike Hankins for cause. Defense counsel then made an

additional motion to strike the jury for cause on the ground that

the judge had tainted the entire panel by stating in their

presence that defense counsel disapproved of Hankins as a juror

and wanted to remove him from the jury for cause. The trial

judge restated his ruling denying the challenge for cause as to

Hankins and overruled the challenge to the venire.

I. JUROR CHALLENGE

"The right to a trial by an impartial jury is guaranteed

under both the United States and Virginia Constitutions. This

guarantee is reinforced by legislative enactment and by the rules

of court. It is the trial judge's duty to secure an impartial

jury for the parties." Gosling v. Commonwealth, 7 Va. App. 642,

645, 376 S.E.2d 541, 543 (1989) (citations omitted). "Code

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§ 8.01-357 assures a defendant a right to an impartial jury drawn

from 'a panel [of twenty] free from exception . . . .'" Justus

v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 90 (1980),

appeal after remand, 222 Va. 667, 283 S.E.2d 905 (1981), cert.

denied, 455 U.S. 983 (1982). Essential to the fairness of trial

by jury is a procedure of jury selection that will allow a

criminal defendant to challenge potential jurors who are not fair

and impartial and are not free of bias. Lewis v. United States,

146 U.S. 370, 376 (1892).
Here, we are not asked to decide whether the trial court

erred by refusing to remove juror Hankins for cause. 1 Rather, we

decide whether the trial judge's comments and the Commonwealth's

attorney's remarks in open court, which informed the venireman

and the jury panel that the defendant was challenging juror

Hankins' qualifications, constituted prejudicial error. We are

also asked to determine whether the procedure employed by the

1
We assume without deciding that the trial judge was
correct in overruling the motion to strike Hankins for cause and
that the jury was free from exception had it not been for the
subsequent remarks made in the juror's presence. See Hall v.
Commonwealth, 12 Va. App. 198, 217-19, 403 S.E.2d 362, 374 (1991)
(holding that a potential juror is not disqualified because he
has known a principal Commonwealth's witness for a long time,
provided the juror can base his verdict upon the law and the
evidence); O'Dell v. Commonwealth, 234 Va. 672, 694, 364 S.E.2d
491, 503, cert. denied, 488 U.S. 871 (1988) (holding that the
fact a potential juror states he would "probably" believe or be
more inclined to believe a witness whom he knows rather than a
defendant or another witness whom he does not know, without more,
does not render the juror biased or disqualified); Gosling, 7 Va.
App. at 645, 376 S.E.2d at 544 (same); Mullis v. Commonwealth, 3
Va. App. 564, 570-72, 351 S.E.2d 919, 922-24 (1987) (same).

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trial court of deferring argument on the challenge for cause

prejudiced the defendant's right to a fair and impartial jury.

A. Judge's Statement to Juror Hankins

We first consider whether the trial judge erred in seating

juror Hankins on the panel after the judge informed Hankins that

he was being challenged by the defendant as not being "fair and

impartial" due to "friendship" and then permitted the

Commonwealth's attorney to inform Hankins that the prosecution

considered him "fair and impartial."
A trial judge has broad discretion and control over how voir

dire is conducted and the procedure for seating a jury. The

procedure for hearing challenges to jurors for cause will not be

grounds for reversal absent manifest error. See Buchanan v.

Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989), cert.

denied, 493 U.S. 1063 (1990); Calhoun v. Commonwealth, 226 Va.

256, 258-59, 307 S.E.2d 896, 898 (1983). However, the trial

court's exercise of discretion has certain limits.
If there be a reasonable doubt whether the
juror [is prejudiced], that doubt is
sufficient to insure his exclusion. . . .
[I]t 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).

It is settled in Virginia that "counsel should be afforded the

opportunity to challenge jurors for cause out of the presence of

the panel." Tuggle v. Commonwealth, 228 Va. 493, 505-06, 323

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S.E.2d 539, 546 (1984), vacated and remanded on other grounds,

471 U.S. 1096 (1985).

Here, the trial judge did not merely rule on the juror

challenge and then defer argument on the challenge; the trial

judge considered the motion, heard part of the Commonwealth's

argument on the motion in Hankins' presence, and disclosed to

Hankins that defense counsel was attempting to have him

disqualified for bias. After the judge asked the Commonwealth's

attorney to respond to the defendant's motion, the prosecutor

stated that he thought Hankins "could be a fair and impartial

juror." The trial judge then overruled the defendant's challenge

and ruled Hankins qualified.
The trial judge should be careful to guard
against prejudice to the accused by the
judge's remarks [in the presence of] the jury
because the influence of the trial judge on
the jury "is necessarily and properly of
great weight" and "his lightest word or
intimation is received with deference, and
may prove controlling."

Wilson v. Commonwealth, 2 Va. App. 134, 138, 342 S.E.2d 65, 67

(1986) (citing Quercia v. United States, 289 U.S. 466, 469 (1933)
(quoting Starr v. United States, 153 U.S. 614, 626 (1894))).

The procedure employed by the trial judge in this instance

placed the defendant in the untenable position of having a

prospective juror informed that the defendant wanted him removed

from the panel for bias and partiality. The trial judge

compounded the prejudice to the defendant by then allowing the

Commonwealth's attorney to state that the prosecution found

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Hankins to be fair and impartial. The effect of this procedure

was to inform Hankins that defense counsel did not have

confidence in Hankins' ability to fairly decide the case and to

permit the Commonwealth's attorney to inform Hankins that the

Commonwealth had confidence in Hankins' ability to be fair and

impartial. See Wilson, 2 Va. App. at 138, 342 S.E.2d at 67. As

in the Wilson case, the judge's and Commonwealth's attorney's

statements, made in Hankins' presence, created the possibility of

bias in the mind of the juror against the defendant, where bias

may not have previously existed.
Although the Commonwealth's attorney exercised a peremptory

challenge to remove Hankins from the jury panel, the trial judge

erred by seating Hankins on the panel after the statements were

made that tended to prejudice him against the defendant. See

DeHart v. Commonwealth, 20 Va. App. 213, 216, 456 S.E.2d 133, 134

(1995). The defendant was entitled to a jury panel free from

exception. By seating Hankins on the jury panel, the defendant

was denied the opportunity of having another impartial person sit

on his jury. Fuller v. Commonwealth, 14 Va. App. 277, 281, 416

S.E.2d 44, 46 (1992). The Commonwealth's attorney peremptorily

removing Hankins did not render the error harmless. DeHart, 20

Va. App. at 216, 456 S.E.2d at 134.

Because we reverse due to the error in seating Hankins on

the panel, we do not address whether the judge's and

Commonwealth's attorney's statements may have tainted the entire

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jury panel.

B. Procedure in Deferring Argument

The opportunity to challenge a juror for cause out of the

presence of the panel does not preclude a trial judge from

deferring a hearing on the challenges for cause until voir dire

of all prospective jurors is completed. A trial judge must

evaluate the challenged venireman's qualifications based on the

voir dire in its entirety, Pope v. Commonwealth, 234 Va. 114,

123, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015
(1988), but at some point during or after voir dire the judge

must allow counsel the opportunity to present argument on a

challenge for cause out of the jury's presence. Tuggle, 228 Va.

at 505-06, 323 S.E.2d at 546. From our reading of the record, it

is clear that the trial judge did not defer ruling on the motion

to strike until after the jury was sworn. The trial judge

immediately ruled on the defendant's challenge for cause to juror

Hankins and only deferred hearing defendant's argument on the

challenge until after the peremptory challenges and after the

jury was sworn.

A trial judge may have good reason to defer argument on a

challenge for cause until after voir dire has been completed.
However, argument on a challenge for cause should not be deferred

until after the parties have exercised their peremptory

challenges and the jury has been sworn. Delaying argument until

after the jury is sworn gives the appearance to the defendant and

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to the public that the court is unwilling to timely hear or

consider the grounds for a party's motion. A further evil in

such practice is that when the challenged venireman remains on

the jury, the trial judge will be precluded from removing the

juror without declaring a mistrial should the judge be persuaded

by the argument, additional authority, or other evidence that the

juror was not qualified. See Tuggle, 228 Va. at 505-06, 323

S.E.2d at 546. Thus, the practice enhances the risk that a jury

may be seated that is not free from exception. A defendant is

entitled to a panel free from exception before being required to

peremptorily remove a potential juror; until a trial court

considers and rules on a challenge for cause, a panel is not free

from exception. See DeHart, 20 Va. App. at 213, 456 S.E.2d at

133.

We disapprove of the practice of deferring argument until

after the jury is sworn, but because we reverse on other grounds,

we do not decide whether the procedure resulted in prejudice in

this instance.
II. SENTENCING PHASE - INDICTMENTS

The defendant contends that the trial judge erred during the

sentencing phase of the bifurcated trial by admitting into

evidence copies of indictments for the defendant's seven prior

felony convictions. He argues that indictments are not

admissible because they are not part of the "record of

conviction" under Code § 19.2-295.1. Furthermore, he asserts

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that an indictment may contain irrelevant and prejudicial

information. Because this issue will likely recur on remand, we

address it.

"Code § 19.2-295.1 provides, in pertinent part, that 'the

Commonwealth shall present' to the jury during the sentencing

phase of a bifurcated trial, 'the defendant's prior criminal

convictions by certified, attested or exemplified copies of the

record of conviction." Gilliam v. Commonwealth, 21 Va. App. 519,

521, 465 S.E.2d 592, 593 (1996).
In Folson v. Commonwealth, 23 Va. App. 521, 478 S.E.2d 316

(1996), 2 we held that the term "record of conviction" in Code

§ 19.2-295.1 includes the indictment for a prior conviction as

well as the final order. The indictments are "recorded evidence

that the court convicted appellant for the crimes charged." Id.

at 525, 478 S.E.2d at 318. In this case, the defendant's final

conviction orders state that the defendant was found guilty "as

charged in the indictment." Copies of the indictments were

relevant and admissible to prove the crimes for which the

defendant had been convicted. See Gilliam, 21 Va. App. at 524,

465 S.E.2d at 595 ("[T]he legislature incorporated the term

'record of conviction' into Code § 19.2-295.1 aware that its

meaning includes both conviction and punishment, thereby

intending to assist the jury in fashioning a sentence suitable

both to defendant and the offense.").
2
The Folson decision was issued after oral argument in the
present case.

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 Based upon the Folson decision, the trial judge did not err

by admitting copies of the indictments as part of the defendant's

"record of conviction."

For the foregoing reasons, we reverse the defendant's

conviction and remand the case to the trial court.

Reversed and remanded.

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