Breeden v. Com., 751401

• Citation: 227 S.E.2d 734,217 Va. 297
• Decision Date: 02 September 1976
• Docket Number: No. 751401,751401
• Court: Supreme Court of Virginia
• Parties: James Richard BREEDEN v. COMMONWEALTH of Virginia. Record

Page 734

227 S.E.2d 734

217 Va. 297

James Richard BREEDEN v. COMMONWEALTH of Virginia.

Record No. 751401.

Supreme Court of Virginia.

Sept. 2, 1976.

L. B. Chandler, Jr., Charlottesville (Ralph E. Main, Jr., Chandler, Huff & Wood, Ltd., Charlottesville, on brief), for plaintiff in error.

Wilburn C. Dibling, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

By final order dated July 30, 1975, the trial court entered judgment on the verdict of a jury which convicted James Richard Breeden of abduction and murder of the first degree and fixed his punishment at imprisonment for ten years and for life on the respective charges. The dispositive question is whether a prospective juror, Mrs. Mary Alice Plummer, should have been stricken from the venire for cause.

The right of an accused to trial by 'an impartial jury' is a constitutional right. U.S.Const. amends. VI and XIV; Va.Const. art. 1, § 8. The constitutional guarantee is reinforced by legislative mandate and by the rules of this Court: veniremen must 'stand indifferent in the cause'. Code § 8--208.28 (Cum.Supp.1976); Rule 3A:20(b). By ancient rule, any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused.

'(A prospective juror) must be able to give (the accused) a fair and impartial trial. Upon this point nothing should be left to inference or doubt. All the tests applied by the courts, all the enquiries made into the state of the juror's mind, are merely to ascertain whether he comes to the trial free from partiality and prejudice.

'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 should also flow through channels as free from suspicion as possible.' Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879).

We have applied these principles strictly and consistently. In Salina v. Commonwealth, Va., 225 S.E.2d 199 (1976), we held that veniremen who owned stock in a bank which was the victim of the crime charged against the accused could not stand indifferent in the cause. In Farrar v. Commonwealth, 201 Va. 5, 109 S.E.2d 112 (1959), the trial court had granted separate trials to two co-defendants. Although veniremen called for the first trial had been peremptorily stricken and heard no evidence, we held that they should have been excluded from the second venire. In Dejarnette v. Commonwealth, 75 Va. (1 Matt.) 867 (1881), this Court ruled that a venireman who equivocated when asked if he had formed a fixed opinion should have been stricken. The assertions of the veniremen in Salina and Dejarnette that they could give the defendant a fair trial did not purge the taint. 'As was said by Judge Scott in Armstead's case, 11 Leigh, (657) 663, 'however willing the juror might be to trust himself, the law will not trust him. " Id., 75 Va. (1 Matt.) at 872.

Mrs. Plummer's Voir dire, which is set out in the margin,* raises substantial doubt concerning her ability to stand indifferent in the cause. We are not concerned that she had read newspaper accounts of the crime. Jurors are not required to be totally ignorant of the facts and issues involved in a case on which they sit. Charlottesville Music Cen. v. McCray, 215 Va. 31, 38, 205 S.E.2d 674, 679 (1974); Greenfield v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 420 (1974). Nor are we concerned with a possible misapprehension of law. Jurors are not expected to be learned in legal maxims. We are concerned with her state of mind.

Mrs. Plummer's reply to one question is particularly revealing. Asked if defense counsel would 'have to prove to you that (Breeden) was innocent', she responded in the affirmative. Considered in context with her answers to related inquiries, her response to that crucial question was not so much a symptom of her ignorance of the law as a candid reflection of the state of her mind concerning Breeden's guilt.

The efforts of the Attorney for the Commonwealth and the trial court to rehabilitate Mrs. Plummer do not assuage our concern. In response to two long, complex, leading questions, she merely gave the answers expected. '(T)he proof that (a prospective juror) is impartial and fair, should come from him and not be based on his mere assent to persuasive suggestions.' Parsons v. Commonwealth, 138 Va. 764, 773, 121 S.E. 68, 70 (1924). See also Wright v. Commonwealth, supra, 73 Va. at 944.

The Commonwealth argues that any error on this question was harmless because Breeden, by peremptory strike, excluded Mrs. Plummer from the jury which convicted him. We disagree. A defendant has a right to an impartial jury drawn from 'a panel (of twenty) free from exceptions.' Code § 8--208.19 (Cum.Supp.1976). It is prejudicial error for the trial court to force a defendant to use the peremptory strikes afforded him by Code § 8--208.21 (Cum.Supp.1975) (now Code § 19.2--262 (Repl.Vol.1975)) to exclude a venireman who is not free from exception. Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727, 737 (1852).

We hold that the trial court erred in seating Mrs. Plummer on the panel, and the judgments convicting Breeden of abduction and first degree murder are reversed.

Defendant further contends that the trial court erred in refusing proffered instructions on second degree murder and voluntary manslaughter. Since the case must be remanded for a new trial on both indictments and because we cannot anticipate what the evidence on the murder count may be, we need not decide that question. At the new trial on the murder count, the trial court will instruct the jury on whatever grades of the offense are supported by the evidence and the inferences fairly deducible therefrom. See Painter v. Commonwealth, 210 Va. 360, 171 S.E.2d 166 (1969).

Reversed and remanded.

* 'COURT: Mrs. Plummer, you indicated that you had heard or read something about the case being tried today, can you tell us how you first learned of the case?

'MRS. PLUMMER: I saw it in the newspaper.

'COURT: And what do you recall, if anything, about the account in the newspaper?

'MRS. PLUMMER: I recall that it happened at this grocery store and I think there was something about person leaving, coming back and something about a motorcycle maybe.

'COURT: Did you form...