Gosling v. Com.
| Decision Date | 07 February 1989 |
| Docket Number | No. 1005-86-2,1005-86-2 |
| Parties | Gary Alvin GOSLING v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Thomas R. Robinett, Crewe, for appellant.
H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: Judges BARROW, BENTON and HODGES, JJ.
Gary Alvin Gosling, a prisoner, was convicted and sentenced to five years in the penitentiary for willfully damaging a building in a state correctional facility for the purpose of rendering the facility less secure as a place of confinement. Code § 53.1-203(2). On this appeal Gosling asserts that the trial judge erred in not striking for cause a member of the venire who acknowledged that he would accept the testimony of a correctional officer over the testimony of an inmate. For the reasons set forth below, we reverse the conviction and remand the case for a new trial.
On February 22, 1985, Gosling was charged with removing the vent plate and window from his cell at the Nottoway Correctional Center. The Commonwealth's sole witness at trial was Sergeant C.O. Gibbs, a correctional officer in charge of the facility. The witnesses for the defense included Gosling and Carl Shiflett, another inmate at the facility.
During voir dire, the judge asked members of the jury panel the relevant questions enumerated in Rule 3A:14. Gosling's counsel then asked the jury panel, "Would any of you tend to give greater weight to the testimony of a correctional officer simply because he is a correctional officer?" One of the panel members, Joseph Irby, responded, "Sure I would." When asked why, Irby stated, Upon further questioning by defense counsel, Irby stated that he would tend to believe a correctional officer and to disbelieve witnesses that were inmates. At this point, defense counsel moved to strike Irby for cause.
Without ruling on the motion, the judge asked Irby whether he would examine the testimony of a correctional officer in the same way that he would examine the testimony of an inmate. Irby stated, The judge then explained at length to the entire jury panel the general rules concerning credibility of witnesses, opportunity for knowing the truth and standards for examining credibility. At the conclusion of this discourse, the trial judge again asked Irby whether he would credit the testimony of the correctional officer over the testimony of the inmates. Irby responded After these exchanges, defense counsel again moved to strike Irby for cause. The judge denied the motion and Irby was peremptorily struck from the panel.
The right to a trial by an impartial jury is guaranteed under both the United States and Virginia Constitutions. See U.S. Const. amend VI; Va. Const. art. I, § 8. This guarantee is reinforced by legislative enactment and by the rules of court. Code §§ 8.01-357, 8.01-358; Rule 3A:14(a)(7). It is the trial judge's duty to secure an impartial jury for the parties. Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200 (1976). Resolution of the question of a juror's impartiality depends upon the facts and circumstances of each particular case. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384 387, 349 S.E.2d 903, 906 (1986). At a minimum, however, the law requires that the juror "stand indifferent in the cause." Id.; see also Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976). Any reasonable doubt regarding the prospective juror's ability to give the accused a fair and impartial trial must be resolved in favor of the accused. Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 90 (1980); Breeden, 217 Va. at 298, 227 S.E.2d at 735; Educational Books, Inc., 3 Va.App. at 387, 349 S.E.2d at 906.
Although jurors have a right and a duty to determine the credibility of witnesses in a particular case, giving unqualified credence to the testimony of a law enforcement officer based solely on the officer's official status constitutes impermissible bias. Mullis v. Commonwealth, 3 Va.App. 564, 571, 351 S.E.2d 919, 923 (1987). In appropriate cases, counsel are entitled to inquire as to whether a prospective juror would assign undue weight to the testimony of a law enforcement officer based on official status alone. Id. Indeed, in those cases whose outcomes turn in large part upon a credibility determination between prosecution witnesses with official status and defense witnesses with no official status, such inquiry into potential bias may be required. Id. at 571, 351 S.E.2d at 924.
Upon review of the entire record of voir dire in the present case we conclude that the judge's refusal to exclude Irby from the jury panel constituted reversible error. We emphasize that the prosecution's case rested entirely upon the testimony of correctional Officer C.O. Gibbs and that Gosling's evidence in defense consisted of his own testimony and that of another inmate. Thus, the Commonwealth's case turned solely upon a credibility determination to be made by the jurors. In this respect, the present case is distinguishable from Mullis, for in Mullis, credibility issues did not play a significant role. 3 Va.App. at 572, 351 S.E.2d at 924.
In response to defense counsel's inquiry whether any jurors would tend to assign greater weight to the testimony of a correctional officer simply because he was a correctional officer, Irby revealed his bias in clear, unequivocal terms, stating, "Sure I would." Upon further inquiry, Irby indicated that he would do so because, to his mind, correctional officers have no motive to be untruthful. The question was then rephrased and repeated by both defense counsel and the judge. Irby did not at this point waver either in his position or his rationale. This unfaltering biased viewpoint, viewed in light of the significance of the credibility issue to the outcome of the case, raised a reasonable doubt as to Irby's qualifications and should have led to his exclusion from the jury panel.
The Commonwealth argues that Irby's additional statements that he could give Gosling...
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