Eaton v. Commonwealth9/21/1990
850, 855 (1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1171 (1990) (Spencer III); O'Dell v. Commonwealth, 234 Va. 672, 693, 364 S.E.2d 491, 503, cert. denied, 488 U.S. 871, 109 S. Ct. 186 (1988). For that reason, the trial court's decision in that regard will not be disturbed on appeal absent a showing of "manifest error." Spencer IV, 240 Va. at 94, 393 S.E.2d at 619.
The standard to be applied by the trial court in determining whether to retain a venireman on the jury panel is whether his answers during voir dire examination indicate to the court something that "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams v. Texas, 448 U.S. 38, 45 (1980); accord Turner v. Commonwealth, 234 Va. 543, 549, 364 S.E.2d 483, 486, cert. denied, 486 U.S. 1017 (1988); O'Dell, 234 Va. at 695, 364 S.E.2d at 504.
1. Frances B. Gouldthorpe
During the voir dire examination of Frances B. Gouldthorpe, Eaton's counsel inquired about involvement with other criminal prosecutions. The juror said that she could not sit on a drunk driving case because she had had a previous "tragic experience" with respect to such an offense. After informing the juror that evidence of alcohol consumption was forthcoming, the trial court asked her if that evidence would affect her impartiality; she indicated that it would not.
Eaton contends that he "was prevented from engaging in meaningful inquiry regarding [Juror Gouldthorpe's] pre-formed
opinions about cases involving alcohol consumption." Those opinions, he continues, might have affected the juror's impartiality. We do not agree. The record clearly demonstrates that the trial court, by inquiring about the juror's ability to remain impartial, was satisfied that her prior experience with drunk driving cases would not "prevent or substantially impair the performance of duties as a juror." We find nothing in the record to indicate otherwise.
2. John Lutley
Eaton's counsel asked venireman John Lutley numerous, lengthy questions regarding a defendant's presumption of innocence and a defendant's option not to take the stand in his own defense. Initially, Lutley voiced concern about Eaton's not taking the stand. However, when asked: "You will listen to the evidence and fairly consider that along with the instructions?" Lutley responded: "Yes, and I understand that the case has to be made by the prosecution, not by the defense, I understand that." Over Eaton's objection, Lutley was seated on the jury.
Eaton contends that Lutley was "confused about the presumption of innocence" and, therefore, unqualified to sit on the jury. We disagree. Taking Lutley's voir dire as a whole, see Pruett, 232 Va. at 281, 351 S.E.2d at 10, the record indicates that Lutley understood the presumption of innocence. With regard to Lutley's potential desire that the defendant take the stand, the trial court found that he could "disabuse mind of natural curiosity and decide the case on the evidence submitted and the law as propounded in the court's instructions." See Townes v. Commonwealth, 234 Va. 307, 329, 362 S.E.2d 650, 662 (1987), cert. denied, 485 U.S. 971 (1988). We find no "manifest error" in the trial court's retention of juror Lutley.
3. Phyllis J. Daines
During the voir dire of Phyllis J. Daines, Eat
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