COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
CALVIN EUGENE WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 0142-01-1 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 11, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Catherine L. MacLean, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Calvin Eugene Williams was convicted in a jury trial of
possession of cocaine with intent to distribute and possession of
a firearm while in possession of a controlled substance with the
intent to distribute. On appeal, Williams contends the trial
court erred in denying his motion to strike prospective juror
Marvin Potter for cause. For the reasons that follow, we reverse
the convictions and remand for a new trial.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
Williams contends prospective juror Potter should have been
struck for cause because his admissions during voir dire that his
consideration of the evidence might be affected by the fact that
several members of his immediate family were or had been in law
enforcement and that the accused's failure to testify might be a
factor in his deliberations created reasonable doubt as to his
ability to be an impartial juror. We agree with Williams's
contention.
In Virginia, a defendant in a criminal case "is entitled to
a panel of jurors free from exception before exercising
peremptory challenges." Cressell v. Commonwealth, 32 Va. App.
744, 755, 531 S.E.2d 1, 6 (2000). "[A]ny reasonable doubt as to
a juror's qualifications must be resolved in favor of the
accused." Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d
734, 735 (1976).
"On appellate review, we give deference to the trial
court's determination whether to exclude a prospective juror,
because the trial court was able to see and hear each member of
the venire respond to the questions posed." Lovitt v.
Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 (2000).
"Thus, we review a trial court's decision whether to strike a
prospective juror for cause for an abuse of discretion and that
ruling will not be disturbed on appeal unless it appears from
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the record that the trial court's action constitutes manifest
error." Cressell, 32 Va. App. at 755, 531 S.E.2d at 6. "In
conducting our review, we consider the juror's entire voir dire,
not merely isolated statements." Lovitt, 260 Va. at 510, 537
S.E.2d at 875.
In the present case, prospective juror Potter indicated
during voir dire that his father, brother, and son were former
police officers and that his daughter was currently a sergeant
with the sheriff's department. When asked by the trial judge if
his association with his relatives in law enforcement would
affect his ability to be fair and impartial, Potter responded in
the negative.
However, when later questioned individually by defense
counsel about whether his many relatives in law enforcement and
"the stories [he] must hear" would "tend to color what [he]
might hear" in court, Potter responded:
I like to think that I could be fair and
impartial but I – you know, I think that's a
consideration, that I do come from a police
officer's family either outside or inside
the jail; but I think I can be very fair;
but I think that is on my mind . . . .
Counsel then asked Potter if his family police background would
lead him to believe that the police's assessment of the charged
crime in the instant case was correct. Potter responded:
That's a tough question. I think I would
have to answer yes, but I would like to
think I would still listen to the evidence
and be impartial.
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Potter then agreed that he would think the police's
assessment of the charged crime "would be fair," but added that
there were "two sides to every story." The following exchange
between defense counsel and Potter then took place:
Q. So you would need to hear the other
side?
A. Yes, ma'am.
Q. What if you didn't hear the other
side?
A. Well, I don't know. I'm sorry.
Q. No. I know, and I'm not trying to
put you on the spot or anything.
A. Yeah. I heard your question
earlier about [defendant not having to
testify or offer an explanation], and I got
a little concerned there I guess. I don't
think I can answer that question. I would
do my absolute best to be impartial.
Q. But you think it might be a factor
in your deliberations?
A. Yes, ma'am, I'm afraid it might be.
The prosecutor then attempted to rehabilitate Potter. In
response to his questions, Potter agreed that he would believe
any witness' reasonable testimony, in the absence of
contradictory evidence. He further agreed that he would not
believe a police officer irrespective of what the officer said,
but would take into account other evidence in assessing the
officer's, or any other witness', credibility.
Upon reviewing the entire voir dire, we find that Potter's
responses during voir dire failed to establish that he could sit
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as an impartial juror during the case. Potter's equivocal
responses to defense counsel's questions during voir dire
clearly demonstrated that he harbored, given his familial
connections, a bias in favor of the police. Indeed, Potter
admitted that his relationship with family members who were and
had been in law enforcement might affect his ability to be
impartial. He further acknowledged that, because of his
connection to the police, he would tend to think that the
police's assessment of the charged crime was correct and fair
and, thus, would need to hear the defendant's side of the story.
The defendant's failure to testify, he admitted, might affect
his ability to deliberate impartially. Those admissions created
a reasonable doubt as to his qualification to serve as a fair
and impartial juror. Potter's responses to the prosecutor's
general and leading rehabilitative questions, which did not
specifically address Potter's admitted bias and need to have the
defendant testify, were insufficient to dispel that doubt. See
Sizemore v. Commonwealth, 11 Va. App. 208, 213, 397 S.E.2d 408,
411 (1990) (noting that questions that "only inferentially
address" a prospective juror's potentially disqualifying bias
fail to disclose whether that bias is fixed or can be set
aside); David v. Commonwealth, 26 Va. App. 77, 81, 493 S.E.2d
379, 381 (1997) (holding that evidence used to rehabilitate
prospective juror must come from juror himself and not consist
solely of his mere assent to leading questions).
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Because such a doubt must be resolved in favor of the
accused, we hold that the trial court's refusal to grant
Williams's motion to strike Potter for cause constituted
manifest error. Because this violation is not harmless, see
Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90
(1980), we reverse the convictions and remand for a new trial if
the Commonwealth be so advised.
Reversed and remanded.
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