Juror bias in voir dire prompts new trial order

A trial judge erred by failing to strike a juror who repeatedly expressed bias toward a defendant during voir dire, the Court of Appeals of Virginia has found.

In appealing his conviction for possession of a firearm by a felon, defendant Benjamin L. Burton argued that the verdict should be set aside because the Chesterfield County Circuit Court judge refused to strike the juror for cause.

He further argued that the judge “impermissibly attempted to rehabilitate” the juror by asking a leading question and that there was insufficient evidence that he possessed a firearm.

“Reviewing Juror P.’s voir dire as a whole confirms that there is insufficient support in the record to uphold the trial court’s conclusion that Juror P. could be impartial considering the circumstances of this case,” Judge Frank K. Friedman wrote for the panel. “On three separate occasions Juror P. answered in the affirmative when he was asked whether he would be biased.”

Because there was sufficient evidence to support a finding of guilt, a retrial would not violate the double jeopardy clause, the panel decided in reversing the lower court’s decision and remanding the case for a new trial.

The 17-page opinion is Burton v. Commonwealth (VLW 025-7-187).

Value of voir dire

Rachel Yates, a Glen Allen-based attorney who focuses on appellate litigation, said the case demonstrates the importance of trial lawyers raising potential juror issues with the court before raising the issue on appeal.

“One takeaway for trial lawyers is that when jurors have expressed bias, judges are supposed to avoid leading those jurors to the ‘right’ response,” Yates said.

She added that the panel did not address a separate argument that the trial court should not have tried to rehabilitate the juror.

“If a trial lawyer wants to argue a point like this, they must make a timely objection in the trial court,” she said.

One takeaway for trial lawyers is that when jurors have expressed bias, judges are supposed to avoid leading those jurors to the ‘right’ response.

— Rachel Yates, Glen Allen

Yates said if there is any question of bias, including whether a juror has been truly rehabilitated, trial lawyers should consider moving to strike the juror for cause. They also should not assume a juror has been rehabilitated “just because of a single question and answer; the full record must be considered.”

Thomas “Bo” Frith IV, a medical malpractice lawyer at Frith & Ellerman in Roanoke, said the case illustrates the importance of permitting “robust voir dire.”

Acknowledging that Burton is not a med-mal case, Frith said the principles regarding juries are similar.

“In medical malpractice cases, it is not uncommon for potential jurors to express specific biases yet maintain they will faithfully apply the law,” he said.

Assistant Attorney General Susan Hallie Hovey-Murray represented the state. Shaun Kenney, a spokesperson for the AG’s office, said in a statement there were no plans for further review or an appeal.

Brett P. Blobaum, a senior appellate attorney with the Richmond-based Virginia Indigent Defense Commission, represented Burton. He declined to comment.

Front porch confrontation

The events that led to Burton’s case began on the evening of March 29, 2022.

Burton went to a home, knocked on the door, and told the man who answered that he was there because of a conflict with the man’s youngest son. During the conversation, Burton pulled a gun from his waistband and flashed it.

Before leaving, Burton asked the father to contact his son so that they could “figure things out.” After Burton left, the father called his son and asked him to come home. The son returned to the residence shortly after.

Burton, too, returned to the residence about an hour later, knocked on the door, and told the man to tell his son to come outside. When the son came to the porch, Burton approached him, pulled his shirt up, flashed the firearm, and issued a profane threat.

The police were called. But when two officers arrived at the home, Burton ran away. One of the officers viewed surveillance camera footage from the residence and identified Burton as the suspect.

The police eventually found Burton, returned him to the altercation scene, and searched him for weapons. They didn’t find any, and Burton initially denied having a gun. But when one of the officers confronted the defendant about the surveillance video, Burton said “if you got video of that, then I’m guilty.”

Biased juror concerns

At trial during voir dire, the commonwealth asked whether any prospective jurors had “bias or prejudice” either “for or against the commonwealth or the defendant.” The juror in question, identified by the court as Juror P., answered in the affirmative.

Responding to a question whether any juror or their family members had been victims of a crime, Juror P. told the court that his uncle had been murdered, and the perpetrator was convicted. Asked whether that experience caused him to harbor negative feelings toward law enforcement, Juror P. said no.

When asked if any of the jurors had hobbyist or professional firearms experience, Juror P. said he owned several firearms.

“[Juror P.] also asserted that he had ‘strong feelings’ about the illegal possession of firearms, adding that ‘illegal ownership of firearms or firearms that are illegally possessed are the fruit of our problems,’” according to the opinion.

As questioning continued, Juror P. again responded affirmatively, along with two other prospective jurors, when asked if they believed that a defendant with a prior felony conviction was more likely to have committed the offenses described in the case before them.

“Expanding on his answer, Juror P. admitted he had a ‘slight bias.’ Right after Juror P. admitted having a slight bias, the circuit court, itself, interjected in the voir dire and asked Juror P., ‘[d]o you agree with following the [c]ourt’s instructions in reaching a verdict?’ Juror P. replied, ‘I do,’” according to the opinion.

The circuit judge then said Juror P. should base his decisions on the evidence presented in court. The defendant moved to strike Juror P. for cause at the conclusion of voir dire, citing the murder of Juror P.’s uncle and his preconceived notions on firearm ownership and illegal guns.

When the commonwealth objected, the trial judge “interrupted, responding, ‘Yes, that’s why I asked him the question.’ The court then denied the motion ‘[b]ecause he answered my question and he said he would follow the law,’” according to the opinion.

At the conclusion of the commonwealth’s case, Burton made a motion to strike, asserting that there was inadequate evidence to demonstrate the weapon allegedly depicted in the surveillance video and photographs met the statutory definition of a firearm.

The Circuit Court judge partially granted Burton’s motion to strike and lowered the charge to possession of a firearm by a non-violent felon.

Gun possession

Before reversing the judgment and remanding the case for a new trial at the commonwealth’s discretion, the panel ruled on Burton’s argument that the prosecution failed to present sufficient evidence that the defendant possessed a firearm.

The panel concluded that the evidence was sufficient to support conviction.

The opinion notes that the jury was presented with several pieces of sufficient evidence, including the surveillance video, in which Burton is seen flashing “what reasonable jurors could conclude was a firearm in his waistband. Burton’s actions also imply that the item he possessed was a handgun.”

The jury also heard testimony about the porch confrontation along with the defendant’s own suggestive statements to law enforcement after the incident.

“Because the evidence was sufficient to support a finding of guilt, a retrial of the case will not violate the Double Jeopardy Clause,” Friedman wrote.

‘Not harmless error’

Quoting from Townsend v. Commonwealth and Roberts v. CSX Transp. Inc., Friedman wrote that, “in the criminal context, it is well-settled that a trial court commits ‘prejudicial error’ if it ‘force[s] a defendant to use peremptory strikes to exclude a venire [person] from the jury panel if that person is not free from exception.’”

Friedman cited the Supreme Court of Virginia’s decision in Breeden v. Commonwealth, which held “that forcing a defendant to use a peremptory strike to remove a biased juror is not harmless error, because a criminal defendant ‘has a right to an impartial jury drawn from ‘a panel [of twenty] free from exceptions.’”

Friedman went on to say that the process of proper juror examination, as outlined in various cases, “reinforces principles that ensure a litigant’s right to an impartial jury.”

Those principles are judicial neutrality, by which “courts must avoid leading, pressuring, or suggesting the ‘right answer’ when questioning jurors,” he said.

Jurors who offer ambiguous answers are a concern and equivocal answers to clarifying questions “will generally be inadequate to overcome previously stated bias,” Friedman said.

Further, Friedman said, the totality of a juror’s entire exchange in voir dire should reflect impartiality, “and unresolved expressions of bias are not remedied by a single affirmative response to a leading question.”

“Fourth and finally, courts must err on the side of caution. Because the defendant has a right to an impartial jury, all doubts as to a prospective juror’s bias or impartiality must be resolved in the accused’s favor,” he wrote.