Danny Lee Bradbury v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
DANNY LEE BRADBURY
OPINION BY
v. 	Record No. 3243-01-1 	JUDGE ROBERT P. FRANK
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Tabitha B. Anderson (Cal T. Bain, Senior
Assistant Public Defender, on brief), for
appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Danny Lee Bradbury (appellant) was convicted in a jury
trial of rape, in violation of Code § 18.2-61. 	On appeal, he
contends the trial court erred in failing to strike four jurors
for cause. 	For the reasons stated, we reverse and remand.
BACKGROUND1
During general voir dire, two additional people were called
to join the jury panel to replace individuals who were struck
from the panel for cause. 	The court asked the new veniremen:
Do you have any interest in the trial or the
outcome of this case? 	Have any of you
acquired any information about this event
from the news media or any other source?
1 We state only the facts necessary for this analysis.

Have any of you expressed any opinion about
the guilt or innocence of the defendant?
Are any of you sensible of any bias or
prejudice against either the Commonwealth of
Virginia or the defendant, Mr. Bradbury?
Do either of you know of any reason
whatsoever why if you are selected for this
jury you could not give a fair and impartial
trial to both the Commonwealth and the
defendant in this case based solely on the
law and evidence produced before you?
A show of hands prompted the trial court to acknowledge juror
Gatti. 	She indicated she "was in an attempted abduction -- a
kidnapping a few years ago" that she believed "would play a
part." 	Gatti then indicated she "could set that aside" and
fairly consider the evidence.
After the trial court had completed the initial questioning
of these two potential jurors, the following exchange occurred
between appellant's counsel and Gatti:
MR. BAIN: 	In a rape case do any of you feel
that the man bears the burden of proving
that the woman consented to sex?
MISS GATTI: 	Uh-huh.
MR. BAIN: 	Even though that's not the law?
MISS GATTI: 	Uh-huh.
MR. BAIN: 	You'd still feel that way?
MISS GATTI: 	Uh-huh.
Appellant moved to strike Gatti for cause. 	The trial court
then inquired:
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THE COURT: 	Miss Gatti, at the conclusion of
this trial, if you're selected for the jury,
the court will read certain instructions.
There are instructions of law in Virginia
that the jurors are to apply to the evidence

in the case; and if the law happens to
disagree with some of your personal
feelings, could you set those aside and
follow the law if you were so instructed to
do so?
MISS GATTI: 	Yes.
* 	* 	* 	* 	* 	* 	*
THE COURT: 	Counsel, it's my responsibility
to be fair in this matter; and many voir
dire questions the way they're couched,
either from the Commonwealth's point of view
or from the defendant's, almost suggest an
answer.
All this process of asking you ladies
questions is to determine that you don't
come in with any preconceived notions that
you could not set aside, that you could
listen to the evidence, be told what the law
is, and arrive at a decision based solely on
the law and evidence that you've been
presented regardless of what your prior
experiences may have been. 	Could you two
ladies do that?
MISS GATTI: 	Yes.
MISS KELLY: 	Yes.
Appellant again renewed his motion to strike Gatti,
maintaining "she would expect a man to bear the burden of proving
consent in the case; and as the Court knows, a potential juror
cannot be rehabilitated with leading questions." 	The trial court
denied the motion.
The jury convicted appellant of rape, and he was sentenced
to twenty years in the penitentiary.
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ANALYSIS
Appellant contends the trial court erred in failing to
strike four jurors for cause. 	As we find the trial court should
have granted appellant's motion to strike Gatti, we reverse and
remand the case without discussion of the other assignments of
error.
A defendant has the right to trial by an impartial jury.
U.S. Const. Amends. VI & XIV; Va. Const. Art. 1, Sec. 8.
Additionally, Code § 8.01-358 and Rule 3A:14
provide that members of the venire must
"stand indifferent in the cause."
We have stated that a prospective juror
"must be able to give [the accused] a fair
and impartial trial. 	Upon this point
nothing should be left to inference or
doubt. 	All the tests applied by the courts,
all the enquiries [sic] made into the state
of the juror's mind, are merely to ascertain
whether [the juror] comes to the trial free
from partiality and prejudice.
"If there be a reasonable doubt whether the
juror possesses these qualifications, that
doubt is sufficient to insure his exclusion.
For, as has been well said, it is not only
important that justice should be impartially
administered, but it should also flow
through channels as free from suspicion as
possible."
Wright v. Commonwealth, 73 Va. (32 Gratt.)
941, 943 (1879); accord Barker v.
Commonwealth, 230 Va. 370, 374-75, 337
S.E.2d 729, 732-33 (1985); Justus v.
Commonwealth, 220 Va. 971, 976, 266 S.E.2d
87, 90-91 (1980); Breeden v. Commonwealth,
217 Va. 297, 298, 227 S.E.2d 734, 735
(1976).
Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451
(2001). 	Jurors' responses during the entire voir dire are
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reviewed to determine their impartiality to the case. 	Vinson v.
Commonwealth, 258 Va. 459, 467-68, 522 S.E.2d 170, 176 (1999).
Upon appellate review, this Court generally defers to a
trial court's decision to retain a prospective juror, as "the
trial judge is in a unique position to observe the demeanor of
the challenged juror and to evaluate all aspects of her
testimony." 	Educational Books, Inc. v. Commonwealth, 3 Va. App.
384, 390, 349 S.E.2d 903, 908 (1986). 	We will not reverse that
decision absent a showing of manifest error. 	Stewart v.
Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402 (1993).
However, when a trial court itself becomes involved in the
rehabilitation of a potential juror, we must review the court's
decision to retain the person on the panel more carefully. 	As
this Court explained in McGill v. Commonwealth:
Using or permitting the use of leading
questions, those which suggest a desired
answer, in the voir dire of a prospective
juror may taint the reliability of the
juror's responses. 	Merely giving "expected
answers to leading questions" does not
rehabilitate a prospective juror. 	Martin v.
Commonwealth, 221 Va. 436, 444, 271 S.E.2d
123, 129 (1980). 	Proof of a prospective
juror's impartiality "should come from him
and not be based on his mere assent to
persuasive suggestions." 	Breeden v.
Commonwealth, 217 Va. 297, 300, 227 S.E.2d
734, 739 (1976) (quoting Parsons v.
Commonwealth, 138 Va. 764, 773, 121 S.E. 68,
70 (1924)). 	When asked by the court, a
suggestive question produces an even more
unreliable response. 	See Foley v.
Commonwealth, 8 Va. App. 149, 160, 379
S.E.2d 915, 921[, aff'd, 9 Va. App. 175, 384
S.E.2d 813] (1989) [(en banc)]. 	A juror's
desire to "say the right thing" or to please
the authoritative figure of the judge, if
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encouraged, creates doubt about the candor
of the juror's responses.
A trial judge who actively engages in
rehabilitating a prospective juror
undermines confidence in the voir dire
examination to assure the selection of fair
and impartial jurors. 	Id. at 154-55, 379
S.E.2d at 918. 	The proper role for a trial
judge is to remain detached from the issue
of the juror's impartiality. 	The trial
judge should rule on the propriety of
counsel's questions and ask questions or
instruct only where necessary to clarify and
not for the purposes of rehabilitation.
10 Va. App. 237, 242-43, 391 S.E.2d 597, 600 (1990).
Here, Gatti said she would require appellant to prove that
he had permission from the victim to have intercourse with her
before the jury could acquit him. 	She specifically admitted she
would place a burden on appellant that, under the law in
Virginia, is impermissible. 	She affirmed her belief in this
burden even when appellant's counsel suggested the controlling
legal principles in this case were contrary to her views.
Clearly, her initial responses indicated a prejudice that
precluded her from fairly serving on the jury, unless she was
properly rehabilitated.2 See David v. Commonwealth, 26 Va. App.
77, 81, 493 S.E.2d 379, 381-82 (1997) (suggesting a potential
juror with a "declared bias" is not necessarily disqualified but
can be rehabilitated by non-leading questions).
At this point, the trial court began examining the potential
juror.3 The two questions asked by the court were broad, in
contrast to counsel's questions, which related to a specific
2 The Commonwealth does not contend that Gatti's responses,
to this point, were appropriate for a prospective juror.
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burden of proof. 	The trial court asked generally if the
prospective juror could set aside her "personal feelings . . .
and follow the law" as provided to her by the trial court. 	Gatti
responded, "Yes." 	The court then explained that voir dire was
designed "to determine that you don't come in with any
preconceived notions that you could not set aside." 	The court
then asked, again without reference to the specific controversy
raised by Gatti's earlier responses, if the jurors could decide
the case based on the evidence and the law "regardless of what
your prior experiences may have been." 	Again, Gatti answered,
"Yes."
These questions from the court were leading, long, and
complex. 	See Breeden v. Commonwealth, 217 Va. 297, 300, 227
S.E.2d 734, 736 (1976). 	They suggested the answer that the court
preferred to hear, compressed several issues into one phrase, and
generally incorporated several legal concepts. 	These questions
constituted persuasive suggestions more than an
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3 The Commonwealth never examined Gatti on this issue.

impartial inquiry and, as such, were an ineffective means of
rehabilitation.
Additionally, the questions asked by the trial court did not
address the specific problem of the juror's "feeling" that a man
must prove consent. 	The juror was not asked to explain what she
meant. 	The only questions that specifically asked how she would
resolve this conflict between her "feelings" and the law
indicated she would follow her own ideals rather than the law.
In light of her responses to these specific questions from
appellant's counsel, her affirmative answers to general, leading
questions from the trial court do not create confidence in this
juror's ability to sit impartially and fairly in judgment on
appellant. 	See Parsons v. Commonwealth, 138 Va. 764, 773, 121
S.E. 68, 70 (1924).
As an example, instead of asking general questions, the
trial court could have advised Gatti that the burden is on the
Commonwealth to prove appellant's guilt, and appellant has no
burden whatsoever. 	If Gatti then acknowledged she could apply
this principle of the law, then the trial court should have
inquired how Gatti could reconcile her previously stated views
with the correct burden of proof. 	In this fashion, the juror
could be rehabilitated using her own words to clarify her views,
rather than responding to the suggestions and influence of
others. 	See Bausell v. Commonwealth, 165 Va. 669, 675-76, 181
S.E. 453, 455 (1935) (explaining a juror's rehabilitation
"'should come from him,'" not from suggestions by the trial court
(quoting Parsons, 138 Va. at 773, 121 S.E. at 70)); David, 26 Va.
App. at 81, 493 S.E.2d at 381-82 (finding a trial court abused
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its discretion where "rehabilitative responses consisted solely
of [the juror's] mere assent to the court's leading questions").
Here, Gatti responded to general questions that did not
specifically address the contradiction between her beliefs and
the applicable legal principles. 	She gave one-word responses to
leading questions, asked by the trial court. 	The trial court
never asked Gatti to explain in her own words how she would
resolve the conflict between her personal "feeling" and the legal
burdens on appellant.
For the reasons stated above, we find the trial court erred
in denying appellant's motion to strike Gatti from the jury panel
for cause. 	We reverse and remand for further action by the
Commonwealth, if it be so inclined.
Reversed and remanded.
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