Haddad v. Commonwealth

RUSSELL, J.,

dissenting:

I respect the concern of the majority that nothing should be countenanced which would tend to impair public confidence in trial by jury, but cannot agree that the trial court’s ruling in this case amounted to an abuse of discretion. We have repeatedly held that a trial judge must be given wide discretion in interpreting the responses of veniremen to voir dire questioning because of the judge’s unique opportunity to weigh matters such as tone of voice, gestures, and facial expressions, which supplement the written record.

As fact-finder, the trial court must weigh the meaning of the answers given in light of the phrasing of the questions posed, the inflections, tone, and tenor of the dialogue, and the general demeanor of the prospective juror. We are aware that, while the words employed may, when transcribed and read in retrospect, appear ambivalent, the judge who heard them uttered was uniquely positioned to assess their ultimate import.

In LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063 (1984), we found no abuse of

Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 (1978), cert. denied, 441 U.S. 967 (1979). *332discretion when the trial court sustained a challenge to a venireman because of ambivalent answers to Witherspoon questions, observing that we could neither see nor hear the venireman, and that the trial court might properly base its ruling on “factors beyond the printed record.” Id. at 584, 304 S.E.2d at 655.

Here, the trial judge questioned the juror carefully, weighed his responses, and concluded that the juror was not a “devious individual,” but one who would be “fair and impartial based on what I heard.” Because of an appellate court’s obvious inability to weigh the often subtle and unrecorded factors which a trial judge must necessarily consider in reaching such a decision, I would accord it a high degree of deference.

The majority concludes that cases involving the qualifications of veniremen on voir dire are of “slight assistance,” and that different, apparently more liberal, rules should apply when a challenge based on alleged juror misconduct is made during an on-going trial. I can see no reason for such a distinction. In both circumstances, someone must decide whether the challenge to a juror should be sustained. In both circumstances, the trial judge on the scene is in a far better position to make the decision than is an appellate court reading a cold record. But a successful challenge to a venireman at voir dire can be remedied by a prompt replacement, while a successful challenge to a juror during trial incurs the far more serious consequence of a mistrial. Further, there is no presumption, until voir dire has been completed, that the veniremen “stand indifferent in the cause.” During the course of trial, however, the jurors have already been found free of exception and are bound to impartiality by their oath. A party challenging a juror’s impartiality during trial should be required to carry a heavier burden than one making a challenge at voir dire.

For these reasons, I think a challenge to a juror’s impartiality during trial should be weighed by the court with more, rather than with less, caution than a challenge made to a venireman at voir dire. There is, therefore, even stronger reason to defer to the discretionary judgment of the trial court in this case than in our cases involving challenges at voir dire. Accordingly, I would affirm.