COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,
Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia
LEATHIO WILLIAMS
v. Record No. 0826-93-2 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Connie Louise Edwards (Connie Louise Edwards,
P.C., on briefs), for appellant-respondent.
Donald R. Curry, Senior Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on briefs), for appellee-petitioner.
On February 7, 1995, a panel of this Court reversed and
remanded the conviction of Leathio Williams (appellant) for
violation of Code § 18.2-55 (knowingly and willfully inflicting
bodily injury on an employee of a correctional facility). See
Williams v. Commonwealth, 19 Va. App. 600,
453 S.E.2d 575 (1995).
The Commonwealth's petition for rehearing en banc was granted
and the mandate of that opinion stayed. Upon rehearing en banc,
we affirm the judgment of the trial court and order that the
mandate of the February 7, 1995 opinion be vacated.
Before the panel, appellant argued that the trial court
erred in refusing to strike for cause six persons from the
venire, one of the challenged members, Juror Person, being a
correctional officer. In reversing and remanding appellant's
conviction, the panel held that where a defendant, pursuant to
Code § 18.2-55, is charged with assaulting a correctional
officer, a venireman who is "a correctional guard is disqualified
per se from serving on [the] jury." Id. at 604, 453 S.E.2d at
577.
Per se presumptions of bias are not favored. See, e.g.,
Scott v. Commonwealth, 1 Va. App. 447, 452,
339 S.E.2d 899, 901
(1986), aff'd,
233 Va. 5,
353 S.E.2d 460 (1987). Absent the
existence of a per se ground for exclusion, rulings concerning
the qualifications of a juror are left to the sound discretion of
the trial court and will not be overturned absent a showing of
manifest error. Barker v. Commonwealth,
230 Va. 370, 375,
337
S.E.2d 729, 733 (1985).
At voir dire, Juror Person stated that although he was
employed by the Department of Corrections that fact would not
influence his decision, and he could be impartial and fair in
this case.
A per se rule in Virginia has been approved only where the
venireman knew of an accused's prior conviction for the same
offense, id.; stood in a near legal relationship to the victim of
the accused, Gray v. Commonwealth, 226 Va. 591, 593,
311 S.E.2d
409, 410 (1984), Jaques v. Commonwealth,
51 Va. (10 Gratt.) 690,
693 (1853); or was a part owner of a victim bank; Salina v.
Commonwealth,
217 Va. 92, 93,
225 S.E.2d 199, 200 (1976).
Here, the only relationship between the victim and Juror
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Person is that they share the same occupation and the risk of
suffering the same type of assault upon which this action was
based.
We hold that under the facts disclosed by this record, the
application of a per se rule is unwarranted, and that Juror
Person's employment, without more, does not require that bias
should be imputed. See Scott v. Commonwealth, 1 Va. App. 447,
339 S.E.2d 899 (1986), aff'd,
233 Va. 5,
353 S.E.2d 460 (1987).
Appellant also argued before the panel that the trial court
erred in refusing to strike five other jurors for cause.
Juror Wilson was the ninth grade school teacher of the
victim. She stated that she had not seen the victim routinely
since she taught her and indicated without equivocation that she
could be fair and impartial. Nothing in the record required
disqualification of Juror Wilson. See Barker, 230 Va. at 375,
337 S.E.2d at 733 (1985).
Juror Vaughan had two relatives who worked in law
enforcement. Juror Wray was a former law enforcement officer,
and Juror Michaels was employed as a juvenile probation officer.
Appellant challenged these jurors because of their association
with law enforcement. All three of these jurors, however,
indicated that they could be fair and impartial, and nothing in
the record indicates otherwise. Therefore, the trial court did
not err in refusing to strike these jurors for cause. See
Strickler v. Commonwealth, 241 Va. 482, 492,
404 S.E.2d 227,
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233-34 (1991) (trial court did not err in refusing to strike
former probation officer who demonstrated impartiality).
Juror Johnson, whose brother worked at the same correctional
facility as the victim, indicated that she had heard about the
incident from her brother. In response to a question concerning
what she may have heard, Juror Johnson stated, "I just remember
that something happened." When asked whether the fact that her
brother worked at the correctional facility would influence her
in any way, she stated, "No, sir, it wouldn't." She indicated
that she could decide the case on the evidence presented at trial
and not on anything she may have heard. Accordingly, the trial
court did not err in refusing to strike Juror Johnson for cause.
See Spencer v. Commonwealth, 238 Va. 295, 309,
384 S.E.2d 785,
794 (1989) ("'[I]t is not necessary that prospective jurors be
entirely ignorant of the facts and issues in the case.' All that
is required is that the venireman 'can lay aside [his]
impressions or opinions and render a verdict based on the
evidence presented in court.'").
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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Elder, J., with whom Benton, J., joins, dissenting.
I dissent for the reasons stated in the panel opinion as to
the juror who was a correctional officer. While the trial judge
did not abuse his discretion by failing to disqualify the five
other jurors, when viewed collectively the jury was not "as free
from suspicion as possible." Wright v. Commonwealth, 73 Va. (32
Gratt.) 941, 943 (1879). For these reasons, I would reverse the
judgment of the trial court.
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