explaining that “[s]uch attitudes [toward the use of illegal drugs generally] might well be interesting to counsel, but they have no relationship to the juror’s ability to abide by the court’s instructions, to find the facts impartially, and to apply the law to the facts conscientiously”
How later courts described this case
- explaining that “[s]uch attitudes [toward the use of illegal drugs generally] might well be interesting to counsel, but they have no relationship to the juror’s ability to abide by the court’s instructions, to find the facts impartially, and to apply the law to the facts conscientiously”
- holding that the trial court did not err in prohibiting appellant from rehabilitating a prospective juror on the juror’s prejudice against the death penalty when it was clear that the juror was “irrevocably committed to vote against the imposition of the death penalty”
- finding that a single improper question on direct examination, when viewed in the context of the entire examination, did not cause such impressive prejudice that the court’s cautionary instruction could not cure the impropriety
- holding that if a voir dire question “would necessarily disclose, or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion, or prejudice, it must be permitted”
Written by the judges who cited it.
The opinion
STEPHENSON, J.,
dissenting.
LeVasseur contends he was so intoxicated he was incapable of forming a willful, deliberate, and premeditated intent to kill the deceased, and therefore could not be guilty of capital murder. Johnson v. Commonwealth, 135 Va. 524 , 115 S.E. 673 (1923). This was his only defense, and the trial court found there was evidence to support the giving of a jury instruction therefor.
Since his alleged voluntary intoxication was produced primarily by the use of illegal drugs, LeVasseur argues his counsel had the right during jury voir dire to ascertain whether a prospective juror would apply the voluntary intoxication rule even though illicit drugs were involved. I agree.
It is apparent from the record that defense counsel intended to question each prospective juror to determine whether he or she was “sensible of any bias or prejudice,” Code § 8.01-358, respecting the use of illegal drugs, which would preclude that person from following the court’s instruction respecting voluntary intoxication. Apparently, this line of questioning proceeded without incident until prospective juror Anna Cornwell was questioned. At that point, the Commonwealth’s Attorney suggested to the court that the question defense counsel had been asking in this regard should be reframed, and the court instructed defense counsel to ask the following question: “Assuming that you are all opposed to the use of illegal drugs, would this fact, alone, prejudice you to such a degree that you could not consider their usage, if the evidence develops that they were used, as a part of the defense.”
*597 Essentially following the court’s suggestion, defense counsel asked Cornwell the following question:
I would assume that... you are opposed to drugs, the use of illegal drugs. Do you have any bias or prejudice that would make you unable to consider the usage by the defendant, of illegal drugs, as part of his defense?
Would you be able to — would you be unable to consider the usage by the defendant of illegal drugs, as a part of his defense?
When Cornwell appeared not to understand the question, the court inquired: “the fact that it may develop that he had used illegal drugs, could you consider that as a part of his defense?” Cornwell responded in the negative. Thereupon, the defendant challenged Cornwell for cause. The court overruled this motion, and Cornwell was deemed qualified to serve as a juror in this case. Clearly, Cornwell did not “stand indifferent in the cause,” and the defendant’s challenge of her for cause should have been sustained.
When defense counsel began to question the next prospective juror, the court, sua sponte, ruled as follows:
Mr. Zauzig [defense counsel], the other question which you have asked in the past has been rephrased. The Court has previously ruled on this question and how this should come forward. It did not come forward.
What your question in the past has been getting at is, in effect, asking the jury to sanction what is an illegal act.
For that reason, I’m denying you the right to ask that question as far as any further prospective jurors are concerned.
As a result of this ruling, nine jurors in this case were not examined regarding any bias or prejudice they might have had respecting the use of illegal drugs as it related to LeVasseur’s intoxication defense. In my judgment, this omission prejudiced the defendant and constituted reversible error.
The majority argues that defense counsel’s question was both ambiguous, because the prospective juror did not know whether drug intoxication could be considered merely in mitigation or for acquittal, and irrelevant, because it only was “calculated to elicit *598 a prospective juror’s underlying attitude toward the use of illegal drugs generally.” I consider these arguments to be hyper-technical and strained.
While defense counsel’s question may not have been a model of clarity, the prospective jurors, prior to Cornwell, apparently understood and answered it to the satisfaction of both the court and counsel. It is to be remembered that the court, not counsel, asked Cornwell the question which received her negative response. In addition, the court, at the instance of the Commonwealth’s Attorney, framed the question which counsel was instructed to use for the remaining prospective jurors. My reading of the record indicates that counsel, on the single occasion afforded him, substantially complied with the trial court’s instruction.
There is no doubt defendant’s voir dire was extremely relevant in determining whether bias or prejudice existed, as it touched upon the only defense he advanced. The trial court has the ultimate responsibility of determining whether a prospective juror “[h]as a bias or prejudice against the Commonwealth or the accused,” or whether there is “any reason to believe he might not give a fair and impartial trial to the Commonwealth and the accused based solely on the law and the evidence.” Rule 3A:20. “The constitutional and statutory guarantee of an impartial jury is no mere ‘legal technicality,’ but a substantive right scrupulously to be observed in the day-to-day administration of justice.” Martin v. Commonwealth, 221 Va. 436, 445 , 271 S.E.2d 123, 129 (1980). If defense counsel’s question was unclear, the trial court should have clarified it, rather than forbidding further questioning.
“Preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury.” Dennis v. United States, 339 U.S. 162, 171-72 (1950). In the present case, the defendant was not given this opportunity. Therefore, I would reverse the judgment of the trial court and remand the case for a new trial.
COCHRAN and POFF, JJ., join in dissent.