Webb v. Commonwealth

397 S.E.2d 539, 11 Va. App. 220, 7 Va. Law Rep. 642, 1990 Va. App. LEXIS 183

• Court: Court of Appeals of Virginia
• Decided: October 23, 1990
• Docket: Record No. 0440-89-1
• Status: Published

Opinions

Opinion

WILLIS, J.

Troy Lynn Webb contends on appeal that the trial court erred in refusing to set aside for cause a venireman who acknowledged that, several months before the trial, she had herself been the victim of a crime similar to that on trial. We find no error in the ruling of the trial court and affirm the defendant’s conviction.

Webb was charged with rape, abduction with intent to defile, robbery and the use of a firearm in the commission of robbery. His trial commenced January 31, 1989. On voir dire one of the veniremen acknowledged that she had been raped on May 9, 1988. Her assailant had not been apprehended. The appellant moved that this venireman be set aside for cause. The motion was denied. The appellant used a peremptory strike to eliminate her from the panel. After the verdicts finding him guilty were returned, he moved to set them aside on the ground that he had been denied his right to an impartial venire. The motion was denied, and judgment was pronounced in accordance with the verdicts.

A defendant is entitled to an impartial jury as a matter of constitutional guarantee, reinforced by legislative mandate and by rules of court. See Code § 8.01-358; Rule 3A:14. Any reasonable doubt as to whether a juror is impartial requires his exclusion. Mullis v. Commonwealth, 3 Va. App. 564, 570, 351 S.E.2d 919, 923 (1987); Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 386-87, 349 S.E.2d 903, 906 (1986). The court is required to secure jurors who are free of any well-grounded suspicion of bias. Farrar v. Commonwealth, 201 Va. 5, 8, 109 S.E.2d 112, 114 (1959). The defendant is entitled to an impartial venire and cannot be required to use a peremptory strike to exclude a venireman who should have been removed for cause. Scott v. Commonwealth, 1 Va. App. 447; 457, 339 S.E.2d 899, 900-01 (1986), aff'd, 233 Va. 5, 353 S.E.2d 460 (1987).

A venireman who has an interest in the cause or who is related to a party is deemed per se not to be “disinterested” and must be set aside for cause. This rule extends to criminal prosecutions. Thus it has been held that a stockholder in a victim corporation should be set aside, Salina v. Commonwealth, 217 Va. 92, 225 S.E.2d 199 (1976), as should a venireman who is within the prohibited degree of kinship to the victim’s husband, Gray v. Commonwealth, 226 Va. 591, 311 S.E.2d 409 (1984).

Per se disqualification of veniremen is not favored. Mere interest in the subject matter of a prosecution does not, per se, require that a venireman be set aside for cause. Thus, in Scott we held that the court was not required to strike for cause a venireman who was employed by the company whose store the defendant was accused of having robbed. 1 Va. App. at 452, 339 S.E.2d at 902. Where the defendant was charged with trespass on oyster grounds and theft of oysters, the Supreme Court held that it was not error for the trial court to deny inquiry as to whether any venireman owned or operated oyster grounds, since this would not have been a disqualifying factor. Melvin v. Commonwealth, 202 Va. 511, 118 S.E.2d 679 (1961). Where the defendant was charged with robbery and murder of a cashier, the Supreme Court upheld the trial court’s refusal to permit inquiry as to whether any venireman had family members who were cashiers. Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925 (1989). The trial court did not err in refusing to set aside the challenged venireman as being disqualified per se.

Questioned by the court and counsel, the challenged venireman said that notwithstanding her earlier experience she could put that experience out of her mind, sit fairly and impartially in the case, and render a fair and impartial decision. The trial court observed the venireman and considered her answers. Its decision to retain her will not be reversed on appeal absent a showing of manifest error or abuse of discretion. Mackall, 236 Va. at 252, 372 S.E.2d at 767; Briley v. Commonwealth, 222 Va. 180, 185, 279 S.E.2d 151, 154 (1981); Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015 (1988). No such error or abuse appears from the record.

Arguing that the questioned venireman was disqualified for cause as a matter of law, the defendant notes that the crime of rape inflicts an extreme emotional impact on its victims. He contends that this, together with the fact that the venireman’s assailant had not been apprehended and that less than a year had elapsed since the assault on her, rendered her incapable, as a matter of law, of trying the case impartially. We recognize these considerations, but we hold that they do not raise issues of law, but rather questions of fact to be determined by the trial judge subject to appellate review on a factual record.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

Baker, J., concurred.