COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
RODNEY JACOBS CLEMENTS
v. Record No. 1146-94-1 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA DECEMBER 19, 1995
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Carl E. Eason, Jr. (Pretlow, Eason & Pretlow,
on brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Rodney Jacobs Clements (appellant) appeals from a judgment
of the Circuit Court of the City of Suffolk (trial court) that
approved his jury trial conviction of attempted forcible sodomy.
The sole issue presented is whether the trial court erred in
refusing to strike juror Glenn Brown (Brown) for cause. As the
facts relating to appellant's guilt are not at issue, we recite
only those relevant to the juror's qualifications.
During voir dire of the veniremen, Brown indicated that he
might know or have heard something about the case. The following
colloquy took place on individual voir dire:
THE COURT: All right, Mr. Brown, you have
indicated that you may know or have heard
something about this case. . . . What have
you heard or what do you know about this,
what information have you received about this
case?
JUROR BROWN: Well, I work in a barber shop
and I heard rumors about this, I think about
a job or something that he was supposed to
have working for this fellow here.
THE COURT: When you say you have heard
rumors, have you heard talk in the barber
shop about this case?
JUROR BROWN: I have.
THE COURT: Is it just gossip type talk?
JUROR BROWN: Gossip type.
THE COURT: Have you read about it in the
newspaper or anything like that?
JUROR BROWN: No, I haven't.
THE COURT: All right, do you want to inquire
further about the kind of information?
MR. PHILLIPS 1 : Yes, sir.
THE COURT: What kind of information have you
heard about this case?
JUROR BROWN: It was something about, I
believe like he had a job there, like he was
supposed to have had some clothes or
something he was supposed to be modeling or
something.
THE COURT: What else have you heard?
JUROR BROWN: Let me see. Mostly just
gossip.
THE COURT: About the fact that [the
appellant] may have committed a criminal
offense?
JUROR BROWN: Right.
THE COURT: Do you want to go further?
2
MR. EASON : I would, Your Honor, please.
May I do it?
1
Kenneth A. Phillips, Assistant Commonwealth's Attorney.
2
Carl E. Eason, Jr., defense counsel.
- 2 -
THE COURT: Yes.
MR. EASON: Thank you, Your Honor. These
were discussions between you and customers of
yours in the barber shop?
JUROR BROWN: No, just overhearing talk.
MR. EASON: Did you join in those
conversations?
JUROR BROWN: No, I didn't.
MR. EASON: And the overhearing of those
talks, did anyone express an opinion as to
whether or not [the appellant] was guilty of
what you were hearing?
JUROR BROWN: Not really.
MR. EASON: Do you think that in hearing
these discussions, overhearing these
discussions and talks that it would put you
in a position where you could not listen to
all the evidence and after it comes in to
render a fair and impartial decision?
JUROR BROWN: I would try to be fair with it.
MR. EASON: You would try to be but do you
think you could be?
JUROR BROWN: I will be fair, I will be fair.
MR. EASON: Would the evidence that--excuse
me, would the talk and gossip, as you so
characterize them, that you heard, would that
also be considered by you in making your
decision today as a juror?
JUROR BROWN: Going by what you said at
first, it's a possibility it would. I have
to be honest with you on that, that's why I
told you I have heard rumors about it.
MR. EASON: I certainly appreciate your
honesty.
THE COURT: Do you think when you heard this
talk in the barber--I guess it's talk in the
- 3 -
barber shop, when you heard that and you
indicate you didn't really participate in any
of it but you heard people talking about it,
do you recall that you might have formed or
expressed any opinion or conclusion as to
whether or not the charge or the matters that
[the appellant] may have been accused of were
true or not?
JUROR BROWN: Well, to be honest with you, I
sort of like got an opinion about it because
it was an older person that was dealing with
a youth.
THE COURT: So you may have already formed in
your mind some sort of an opinion about the
case?
JUROR BROWN: Right.
THE COURT: And you feel that--well, let me
ask you this: the opinion that you may have
formed in your mind, does that put you in a
position of requiring the [appellant] to have
to prove his innocence?
JUROR BROWN: Well, you asked the question at
first and I didn't answer that, but can I go
back to that now? I had a close relative
last year that had the same thing happen to
her.
THE COURT: Anything else, Mr. Phillips?
MR. PHILLIPS: Do you feel you have formed an
opinion, sir?
JUROR BROWN: I don't think I have formed an
opinion, but I just want to be honest with
it.
MR. PHILLIPS: You feel the effect of what
happened to your relative would have an
effect on your ability to hear this case?
JUROR BROWN: I do.
MR. PHILLIPS: And I don't mean to inquire,
but what was it?
JUROR BROWN: It was a case last year, Queen
- 4 -
Hall, where the fellow had kicked her door
in, broke in on her, took a fuse out of her
box and she was an older lady, as a matter of
fact, she was about 80, and she was raped,
sodomized.
MR. PHILLIPS: I have no further questions,
and I do appreciate your candor, sir.
THE COURT: Are you saying that, because of
that, you'd come into this with basically
some sort of predisposition against people
who are charged with sexual offenses?
JUROR BROWN: Slightly.
THE COURT: Okay. You say slightly, do you
believe now that [the appellant], because he
is charged, may be guilty of this?
JUROR BROWN: Well, he has to be proven.
THE COURT: Do you believe that you can enter
the jury box and hear testimony in evidence
in this case and keep an open mind during all
of that and wait until the case is presented
to the jury for deliberation before you form
any opinions about [the appellant]?
JUROR BROWN: I would try my best to keep an
open mind.
Appellant moved to strike Brown for cause. The court
overruled the motion, stating that Brown "indicated at the
conclusion of all of this that he would, he felt that he could be
fair and impartial and keep an open mind, that he certainly would
make every effort to do that and I am going to allow him to
remain on the jury panel . . . ."
The right to be tried by an impartial jury is guaranteed
under both the United States and Virginia Constitutions. Swanson
v. Commonwealth, 18 Va. App. 182, 184, 442 S.E.2d 702, 703
- 5 -
(1994); see also Code § 8.01-358. For that guarantee to be
effective, persons accused of violating criminal laws must be
provided with "an impartial jury drawn from a panel [of twenty]
free from exceptions." Breeden v. Commonwealth, 217 Va. 297,
300, 227 S.E.2d 734, 736-37 (1976). Every prospective juror must
stand indifferent to the cause, "and any reasonable doubt as to a
juror's qualifications must be resolved in favor of the accused."
Id. at 298, 227 S.E.2d at 735.
"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 also should flow through
channels as free from suspicion as possible."
Id. (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943
(1879)). These principles must be strictly applied and when a
prospective juror equivocates about whether he or she has formed
a fixed opinion, the prospective juror should be stricken by the
trial court. Id.; Dejarnette v. Commonwealth, 75 Va. (1 Gratt.)
867 (1881).
As in Breeden and the cases cited therein, the voir dire in
this case raised reasonable doubt concerning Brown's ability to
stand indifferent in the cause as required by Code § 8.01-358.
In our review, we must consider the entire voir dire rather than
its isolated parts. Turner v. Commonwealth, 234 Va. 543, 548,
364 S.E.2d 483, 486, cert. denied, 486 U.S. 1017 (1988); Mullis
v. Commonwealth, 3 Va. App. 564, 570, 351 S.E.2d 919, 923 (1987).
- 6 -
Although efforts to qualify Brown showed he would attempt to
properly perform his duties as a juror, reasonable doubt remained
about his impartiality. Brown admitted he had "heard something
about the case" that, in part, matched the evidence the selected
jury heard "[a]bout the fact that [appellant] may have committed
a criminal offense." Brown also conceded that because of what he
had heard about the case, together with the fact that a relative
had been the victim of a sex crime, he would hear the evidence
with some sort of slight predisposition against people who are
charged with sexual offenses. The admissions created a
reasonable doubt that Brown would come indifferent to the cause.
Finally, throughout his voir dire, Brown spoke honestly,
showing no unwillingness to serve. However, those honest answers
disclosed equivocation and revealed doubt that he would be able
to render a fair verdict. Brown concluded the voir dire by
saying only that he "would try" to be fair, thereby indicating
that what he had heard at the barber shop combined with what he
knew had happened to a relative, might affect his decision.
For the reasons stated, we hold that reasonable doubt was
raised. We are required to resolve any reasonable doubt about a
juror's qualification in appellant's favor. We hold that the
trial court erred when it seated Brown on the panel.
Accordingly, the judgment of the trial court is reversed and this
case remanded for such further action as the Commonwealth may be
advised.
- 7 -
Reversed and remanded.
- 8 -