Barrett v. Com.

• Citation: 34 Va. App. 374,542 S.E.2d 23
• Decision Date: 27 February 2001
• Docket Number: No. 1829-99-2.,1829-99-2.
• Parties: Calvin Lee BARRETT v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

542 S.E.2d 23

34 Va. App. 374

Calvin Lee BARRETT v. COMMONWEALTH of Virginia.

No. 1829-99-2.

Court of Appeals of Virginia.

February 27, 2001.

Stephen C. Harris, Louisa, for appellant.

Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS and CLEMENTS, JJ., and COLEMAN, Senior Judge.¹

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

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. Barrett claims the trial court erred in refusing to grant his motion to strike for cause from the jury the brother of one of the Commonwealth's witnesses. On May 16, 2000, a panel of this Court affirmed Barrett's convictions. Upon a rehearing en banc, 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, 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, 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 police officers were already present. Officer Wade saw Fleming seated in the rear of a marked Charlottesville police cruiser and Barrett lying on the ground. Officer Wade 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 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 James 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)); 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 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.

In two recent cases decided by the Virginia Supreme Court, preserving public confidence in the integrity of jury trials was noted as an additional consideration in determining the propriety of retaining a prospective juror among the venire, even when the individual's responses to voir dire evidence the absence of any potential bias or prejudice against either side and established the juror's ability to render a fair and impartial verdict. Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (2000); Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000). In both Cantrell and Medici, the juror's relationship to counsel for one of the parties was given preclusive effect on public policy grounds.²

In the case before us, the close familial relationship between the juror in question and a police officer who was an anticipated witness in the case arguably raises policy considerations similar to those underlying the decisions in Cantrell and Medici. However, we find that the question here is controlled by the Virginia Supreme Court's decision 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, 119 S.Ct. 1887, 144 L.Ed.2d 117, on remand, 258 Va. 548, 523 S.E.2d 208 (1999). In Lilly, 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.

Id. (citations omitted). See also Core v. Core's Adm'rs, 139 Va. 1, 12-13, 124 S.E. 453, 456 (1924).³ "[T]he trial court's exercise of judicial discretion in deciding challenges for cause will not be disturbed on appeal, unless manifest error appears in 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." Chrisman v. Commonwealth, 3 Va.App. 371, 373, 349 S.E.2d 899, 901 (1986) (citations omitted).

The voir dire of James Wade, in its entirety, makes clear that he could set aside his relationship to the officer-witness and fairly try the case. James 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 that he could put aside the relationship.

Furthermore, as we noted in Mullis v. Commonwealth, 3 Va.App. 564, 572, 351 S.E.2d 919, 924 (1987), where "[t]he degree of impact which credibility issues played in the case as a whole was minimal and could have had very little significance on the jury's resolution of the case," it is not manifest error to seat a juror who indicates that he would tend "to give some weight to the fact that a witness was a police officer in resolving credibility issues if all else were equal." Here, Officer Wade's credibility was not in question, and he was not even cross-examined by Barrett's counsel. See Brown v. United States, 338 F.2d 543, 545 (D.C.Cir. 1964)

(appropriate for court to consider whether credibility of witness will be at issue in case); cf. Core, 139 Va. at 13, 124 S.E. at 456 (where credibility of witness to be determined by jury, proper to strike prospective juror who was brother of that witness). In addition, his testimony was not material to Barrett's conviction, therefore the trial judge did not abuse his discretion in seating James Wade. Cf. Simpson v. State, 666 So.2d 100 (Ala.Cr.App.1995); Tucker v. State, 454 So.2d 552 (Ala.1984); State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974).

In sum, we hold that the record clearly shows that the trial court did not abuse its discretion in refusing to strike James Wade for cause. Accordingly, we affirm the court's decision.

Affirmed.

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

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