Justus v. Com.

• Decision Date: 18 April 1980
• Docket Number: No. 791326,791326
• Citation: 220 Va. 971,266 S.E.2d 87
• Parties: Buddy Earl JUSTUS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 87

266 S.E.2d 87

220 Va. 971

Buddy Earl JUSTUS v. COMMONWEALTH of Virginia.

Record No. 791326.

Supreme Court of Virginia.

April 18, 1980.

H. Gregory Campbell, Jr., Blacksburg (Robert W. Spessard, Jr., Roanoke, Gilmer, Sadler, Ingram, Sutherland & Hutton, Blacksburg, Spessard & Spessard, Roanoke, on briefs), for appellant.

Jerry P. Slonaker, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

HARRISON, Justice.

A jury convicted Buddy Earl Justus of willful, deliberate, and premeditated killing during the commission of, or following rape, Code § 18.2-31(e), and, after a penalty proceeding, recommended that his punishment be fixed at death. Following receipt of the post conviction report of a probation officer, the trial court held a sentencing hearing, confirmed the jury's verdict, and ordered that Justus be executed. Code §§ 19.2-264.3 through -264.5. The defendant sought and is entitled to this appellate review of sentence as a matter of right, Code § 17.110.1(A), and it, along with the appeal of his conviction, has been given priority on our docket. Code § 17.110.2. The defendant requests, alternatively, that we reverse and remand for trial upon the capital murder charge or that we commute the death sentence to life imprisonment.

The offense in question occurred in Montgomery County. The evidence at trial established that Ida Mae Moses was found dead by her husband in their home around 2 p. m. on October 3, 1978. The nude body of the decedent was lying lengthwise on her back across a bed in one of the bedrooms. An autopsy revealed that Mrs. Moses had been shot twice in her face and once in the back of her head. Seminal fluid of a blood type consistent with that of the defendant was found matted in the pubic hairs of the victim and also inside her vagina. A pathologist testified that Mrs. Moses was carrying a "near term" fetus at the time she was murdered.

Justus was apprehended and confessed that he entered and burglarized the Moses home and murdered Ida Mae Moses with a firearm. On May 29, 1979, the defendant was arraigned and, with the consent of the court and counsel, and in the presence of the venire, entered a plea of guilty to indictments charging him with the statutory burglary of the Moses home and of using a firearm while committing her murder. He entered a plea of not guilty to the charge of capital murder, i. e., "murder during the commission of or subsequent to rape of Ida Mae Moses."

On this appeal Justus had raised numerous questions concerning both his conviction and his sentence. These questions relate to pretrial procedures and incidents of both the guilt and penalty trials. The defendant contends that the trial court erred in refusing to exclude for cause on voir dire six prospective jurors. Specifically, he asserts that the answers given by Jennifer Swain clearly demonstrate that she was not indifferent and impartial, and therefore that she was not qualified for the jury panel.

Swain admitted that she had acquired information about the Moses murder through newspapers, television, and the radio. When asked if this would affect her impartiality in being a juror, she answered, "It could, it could, yes." When asked in what manner, she responded, "Well, I, I think he's guilty. . . . Just from what I've read and heard." The trial judge then asked a series of questions designed to rehabilitate this prospective juror. He advised her that the defendant was presumed to be innocent, and that she should be guided by what she heard from the witness stand and the instructions. He asked Swain if there was any reason why she could not wipe out all that she had read and heard and give the defendant and the Commonwealth a fair and impartial trial. Swain answered "no" to this question, and also answered "no" when asked if she was sensible to any bias or prejudice toward Justus.

In responding to questions posed by counsel for the defendant, however, Swain said that she had read and heard about the case and that "from what I heard they thought she was murdered and she was pregnant . . . (a)nd raped." Counsel asked Swain, "Do you believe that she was raped by Mr. Justus?" She answered, "Yes." Swain said that she had discussed the case with other people and that most were of the opinion that Justus was guilty. Swain was questioned whether, if it developed through the Commonwealth's evidence that Mrs. Moses was pregnant, if that would cause her to have any more concern about the case. Swain responded, "That is another life." Then, when asked if the victim's pregnancy would cause her to feel more like convicting the man, she responded, "Perhaps." Swain testified that she vaguely knew Frank Moses, the husband of the victim, that he was in her class in high school, and that she had never heard anything bad about him. When asked, "(Y)ou expressed earlier an opinion that he (Justus) probably was guilty. Would, would it take evidence . . . to . . . change that opinion?", she answered, "Yes." And when asked if there were to be no evidence from the defendant, "I assume, your opinion then would, would hold?", she said, "Yes."

In a further effort to rehabilitate Swain, the Commonwealth's Attorney reminded her that she had heard Justus plead guilty to breaking and entering the Moses home with intent to commit larceny, of using a firearm in the murder of Mrs. Moses, that the Commonwealth did not have to prove these offenses beyond a reasonable doubt, and further that the only question for the jury was whether or not at the time of her murder, Justus raped Mrs. Moses. When asked if she had an opinion as to his guilt or innocence of that charge, she responded, "no," and that she understood that the burden was upon the Commonwealth to prove that offense beyond a reasonable doubt.

Swain was challenged for cause by counsel for the defendant, but their motion that she be disqualified was overruled.

While grave questions were raised concerning the ability of the other five veniremen to sit impartially, we need only consider the action of the trial court in refusing to exclude for cause Jennifer Swain. Code § 8.01-357 assures a defendant a right to an impartial jury drawn from "a panel (of twenty) free from exceptions," and it is prejudicial error for the trial court to force a defendant to use the peremptory strike afforded him by Code § 19.2-262 to exclude a venireman who is not free from exception. ^* Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 737 (1976), Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727, 737 (1852).

As we pointed out in Breeden, supra, the right of an accused to trial by "an impartial jury" is a constitutional right, reinforced by legislative mandate and by the Rules of this court. Any reasonable doubt that a venireman does not "stand indifferent in the cause" must be resolved in favor of the accused. Id. 217 Va. at 298, 227 S.E.2d at 735.

In Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879), we said:

(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.

In Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388, 391 (1931), we said:

It is the duty of the trial court through the legal machinery provided for that purpose to procure an impartial jury to try every case. A juror who is influenced by his bias or prejudice or who has a fixed opinion about the case is not a competent juror. The issue of who is, or is not, a competent juror is one for the trial court to decide, and in making its decision the court may exercise a reasonable discretion. Ordinarily, if that discretion has not been abused the trial court's decision on that matter is final.

The opinion entertained by a juror, which disqualifies him, is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.

These well established principles have been applied by this court strictly and consistently. See Breeden, supra; Salina v. Commonwealth, 217 Va. 92, 225 S.E.2d 199 (1976); Farrar v. Commonwealth, 201 Va. 5, 109 S.E.2d 112 (1959); Dejarnette v. Commonwealth, 75 Va. 867 (1881).

We find it apparent that what Mrs. Swain had seen and heard in the news media, and discussed with the people in the community, had made a deep and abiding impression on her. It is not this knowledge alone, however, that disqualified her. We have often said that jurors are not required to be totally ignorant of the facts and issues involved in a case on which they sit. Breeden, supra, 217 Va. at 300, 227 S.E.2d at 736; 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). And a juror is not disqualified because he has never previously served on a jury, has no knowledge of the duties of a juror, or is without formal education. With random jury selection this will often occur and presents a situation with which trial judges will have to deal as intelligently and patiently as possible. It will obviously require a greater effort on the part of trial courts to rehabilitate prospective jurors who become confused during their voir dire examination. This, in part, explains the extensive voir dire examination conducted by the trial judge and by counsel of the...