Turner v. Com.

• Decision Date: 26 November 1980
• Docket Number: No. 800375,800375
• Citation: 273 S.E.2d 36,221 Va. 513
• Parties: Willie Lloyd TURNER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 36

273 S.E.2d 36

221 Va. 513

Willie Lloyd TURNER v.COMMONWEALTH of Virginia.

Record No. 800375.

Supreme Court of Virginia.

Nov. 26, 1980.

John C. Lowe, Charlottesville (J. Lloyd Snook, III; Thomas L. Woodward, Jr.; William R. Savage, III, Suffolk, Va., Lowe & Gordon, Charlottesville, Ltd., on briefs), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

LAWRENCE W. I'ANSON, Chief Justice.

The defendant, Willie Lloyd Turner, was convicted of capital murder, Code§ 18.2-31(d)¹; possession of a sawed-off shotgun in the commission of a crime of violence (robbery), Code§ 18.2-300(A); and the use of a firearm (a pistol) in the commission of a felony (murder), Code§ 18.2-53.1.The jury fixed Turner's punishment at one year in the penitentiary for violating Code§ 18.2-53.1 and life imprisonment for violating Code§ 18.2-300(A).In the second stage of the bifurcated proceeding conducted pursuant to Code§§ 19.2-264.3 and -264.4, the jury fixed the defendant's punishment for capital murder at death.At the conclusion of a separate sentencing hearing conducted pursuant to Code§ 19.2-264.5, the trial court sentenced the defendant to death for capital murder and sentenced him in accordance with the jury's verdicts on the other two offenses.The defendant is here for an automatic review of the death sentence, consolidated with his appeal from his several convictions.Code§ 17-110.1.

I.FACTS

On July 12, 1978, at approximately 11:30 a. m., Willie Lloyd Turner, a black male, entered a jewelry store owned and operated by W. Jack Smith, Jr., a white male.In addition to Smith, an employee (Mary Huffman) and a customer were present when Turner entered the store.After entering the store, Turner displayed a sawed-off shotgun previously concealed by a towel and demanded money and jewelry.Smith, while placing money and jewelry into the store's jewelry bags, triggered a silent alarm alerting the police department.

Judith R. Cosby and Police Officer Alan D. Bain, having entered the store without knowing a robbery was in progress, were detained in the store by Turner.Having discovered Smith had triggered a silent alarm, Turner demanded that Smith turn off the alarm.After acceding to Turner's demand, Smith, along with Cosby, began placing additional valuables designated by Turner into jewelry bags.

Near the rear of the store, Turner examined a revolver taken from Bain and fired a bullet toward the rear wall.Turner stated if he saw or heard any additional police officers, he was going to start killing those in the store.About that time, Bain heard a siren.Turner then walked from the back of the store toward the middle of the store, where Smith was stationed behind a counter, and fired a bullet from the revolver at Smith without warning.Smith, with blood on his temple, slumped behind the counter.Bain began talking with Turner, promising him to take him anywhere he wanted to go and asking him not to shoot again.While Bain talked with Turner, two occupants scrambled out the front door.After Turner told Bain he was going to kill Smith because he had triggered the silent alarm, Turner leaned over the counter and fired two bullets from the revolver into Smith's chest in rapid succession.Bain then grabbed and subdued Turner while Cosby ran out the front door.Smith died as a result of the bullets fired by Turner into Smith's chest.

II.JURY SELECTION AND SEQUESTRATION

Several of the defendant's assignments of error concern the manner in which voir dire was conducted.Over defense counsel's objections, the trial judge ruled that he alone would ask the questions of prospective jurors during voir dire.He also concluded that he would question jurors in groups of five, except when questioning jurors concerning their views on the death penalty.Although questioning concerning the death penalty occurred at least initially in groups of five, each prospective juror was required to answer individually at least two questions concerning capital punishment.²Prior to the day of trial, the court asked counsel for the Commonwealth and the defendant to submit questions they wished to have asked.Turner's counsel submitted a list of fifteen questions, nine of which were asked by the trial judge.

A.REFUSAL TO ALLOW COUNSEL-CONDUCTED VOIR DIRE

The defendant contends that Code§ 8.01-358³ gives both court and counsel an unconditional right to question prospective jurors directly and that the trial court abridged this statutorily created right by refusing to allow counsel-conducted voir dire.Citing Supreme Court Rule 3A:20(a), ⁴ the Commonwealth replies that the trial courts have discretion in determining whether to permit counsel-conducted voir dire.

The Constitution of Virginia, Art. VI, § 5, prohibits the promulgation of any court rule"in conflict with the general law as the same shall, from time to time, be established by the General Assembly."Supreme Court Rule 3A:20(a) clearly makes the right to counsel-conducted voir dire contingent upon the trial court's approval.In resolving the issue before us, we must determine whether Code§ 8.01-358 confers upon attorneys the unconditional right to question prospective jurors directly.If Code§ 8.01-358 confers such a right, it prevails over that portion of Rule 3A:20(a) which makes the exercise of that right contingent upon the trial court's approval.

The legislative history of § 8.01-358 is useful in discerning whether the General Assembly intended to confer such a right upon attorneys.The Code of 1887 § 3154 required trial courts to question prospective jurors when requested to do so by the litigants.⁵The Code of 1919 § 6000 enlarged a trial court's powers by providing that a court could question jurors even though not requested to do so by counsel.⁶The pertinent language remained unchanged for several decades.SeeCode of1950 § 8-199(1950).In 1966, the General Assembly amended Code§ 8-199 to read as follows:

"The court and counsel for either party may examine on oath any person who is called as a juror therein and may ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may introduce any competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case."

Acts 1966, c. 496, at 676(language added in 1966 italicized).On June 15, 1971, this court promulgated a comprehensive set of rules governing criminal practice and procedure, to be effective January 1, 1972.One of these rules was Rule 3A:20, which unambiguously gives the trial court discretion in determining whether to allow counsel-conducted voir dire.211 Va. cvi (1971).Code§ 8-199 was recodified as Code§ 8-208.28 in 1973 without any change.Acts 1973, c. 439, at 651-52.In another recodification, the texts of Code§§ 8-215 (1957 Repl.Vol)⁷ and 8-208.28 were combined to form the present text of Code§ 8.01-358.Acts 1977, c. 617, at 1111.

As both parties recognize, we have not previously resolved whether the 1966amendment to this statute confers upon attorneys an unconditional right to participate directly in voir dire.In Harmon v. Commonwealth, 209 Va. 574, 166 S.E.2d 232(1969), we held that when a litigant's attorney has agreed that the judge alone would ask the voir dire questions, he or she cannot require the trial judge to exercise that right in a particular fashion.In upholding Harmon's conviction, we concluded that the statutory permission for the court to ask such questions directly does not require a court to do so.Thus, the trial court was permitted, but not required as contended by Harmon, to question jurors individually.In regard to voir dire conducted by counsel, we noted that the propounding of questions by the trial judge, and not by counsel for the defendant, was "in accordance with the usual practice."209 Va. at 579, 166 S.E.2d at 236.We also concluded that the word "may""is not mandatory but permissive and leaves the matter to the discretion of the trial court."209 Va. at 580, 166 S.E.2d at 236.

Prior to the 1966amendment, the litigants' counsel had no authority whatsoever for directly participating in voir dire examinations."Although the statute formerly required the judge alone to ask the questions, in practice most trial courts permitted counsel to ask them directly."Boyd, Practice and Pleading-The Twelfth Annual Survey of Virginia Law: 1966-1967, 53 Va.L.Rev. 1763, 1781(1967)(emphasis added).The 1966amendment"sanction(ed) this deviation and (brought) Virginia in line with the procedure in other jurisdictions."Id.Thus, the amendment authorized what was already in fact occurring: counsel's participation in voir dire when permitted by the trial court.

Cognizant that the statutory language might be subject to different interpretations, this court in 1971 promulgated Rule 3A:20(a) of the Rules of Criminal Practice and Procedure.This Rule, which clearly makes counsel's participation in voir dire contingent upon the trial court's approval, resolved any ambiguity present in the statutory language.

Turner suggests that, even if Code§ 8.01-358 confers no unconditional right to counsel-conducted voir dire, the trial court abused its discretion in refusing to allow defense counsel to question prospective jurors directly and in not questioning each prospective juror out of the presence of other jurors.While the defendant has a constitutional right to a fair and impartial jury, he has no constitutional right to counsel-conducted voir dire.See,...