                             COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia

RUSSELL HOPSON
                                                                        OPINION BY
v.     Record No. 1099-07-1                                        JUDGE D. ARTHUR KELSEY
                                                                         JUNE 10, 2008
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                              Wilford Taylor, Jr., Judge

                  Charles E. Haden for appellant.

                  Virginia B. Theisen, Senior Assistant Attorney General
                  (Robert F. McDonnell, Attorney General, on brief), for
                  appellee.


       A jury convicted Russell Hopson of voluntary manslaughter. On appeal, Hopson argues

that his conviction should be overturned because the trial court erroneously failed to strike

several jurors for cause during voir dire. We disagree and affirm Hopson’s conviction.

                                                 I.

       At the start of Hopson’s trial, the trial court questioned the jury venire on various subjects

to ensure the prospective jurors would approach the case from an impartial point of view.

Among other questions, the trial court asked: “Do each of you understand that the defendant is

presumed to be innocent?” “Do you understand that the Commonwealth must prove the

defendant’s guilt beyond a reasonable doubt?” “Do you understand that the defendant is not

required to produce evidence?” To each of these questions, the venire panel responded

affirmatively.

       When given his opportunity to question the venire, Hopson’s counsel posed a series of

subtle questions related to the presumption of innocence. He began in this manner: “The first
question I’d like to ask is right to the point, I think. Does everybody agree that we haven’t heard

any evidence? Can you raise your hand if you agree to that.” The jury responded in agreement.

From there, counsel stated: “Haven’t heard no evidence. Do you think Mr. Hopson is guilty or

not guilty? There’s three answers that you can have. I think he’s guilty or he’s charged, so he’s

guilty. I think he’s not guilty. I don’t know. Can you raise your hand if your answer is I don’t

know.” The venire panel responded affirmatively.

       Hopson’s counsel then told the prospective jurors, “it can’t be I don’t know. The answer

to the Judge’s question, truthfully, it’s got to be presumed not guilty. Not I don’t know.”

Continuing, counsel said, “having put it that way, in more plain language instead of presumed

innocent, does everybody agree that we need to come down here (indicating), that he is not guilty

and presumed innocent? Does everybody agree with that?” The panel answered affirmatively.

       A moment later, juror Carol King volunteered a clarification: “The question was

presumed innocent. Yes, and I agree with that. But presumed innocent and not guilty — not

guilty is a verdict. I don’t know the answer to the verdict, so I’m in the don’t know category.”

In response, Hopson’s counsel gave a lengthy hypothetical:

            Let’s say that you read in the paper that somebody has robbed the
            Starbucks. You go to work and you’re talking to everybody in the
            office, somebody robbed the Starbucks. Did you hear about that. They
            went in and they pulled out a gun. They held a gun out and they said, I
            want 42 skinny lattes, no foam, and I wanted them right now. The lady
            makes up all the skinny lattes and gives them to her. The lady runs out.
            People can’t believe it. The Starbucks got robbed of skinny lattes.

            A couple of weeks later you’re not going to the coffee shop anymore;
            you’re drinking your coffee at home, and you read on the internet that
            they’ve arrested someone for robbing the Starbucks and the lady’s name
            is Cathy Caffeine. That’s just one crazy coincident, isn’t it. You rush to
            the office, having read it on the internet and there you are in your office.
            Everybody comes in. You know you’re the first to know because you
            read it on the internet. Do you say to your office workers, they caught
            the person that robbed the Starbucks and her name is Cathy Caffeine? Is
            that what everybody says? Or do you say, they arrested somebody for


                                                -2-
            robbing the Starbucks and I don’t know if she is guilty or not, but they
            did arrested [sic] somebody. Really odd her name is Cathy Caffeine.
            Don’t we all say, they caught the person who robbed the Starbucks?

(Emphasis added.) In response to this oration, the panel responded affirmatively. Juror Carol

King, however, again interjected a point of clarification: “I would say that depends upon

whether I’m sworn to do a jury determination.” Hopson’s counsel responded, “I’m just talking

about in your every day life. When you came to work or when your family came home, would

you say, they caught the person who robbed the Starbucks?” King replied: “I probably would

say they caught someone.”

       Hopson’s counsel then commented on King’s answer: “Now, I think we all agree that

pretty much, on a regular basis, that’s what we say. Now, that’s your every day life. Having

agreed to that, does everybody agree that we can, as jurors, say waited [sic] a minute, this isn’t

about they caught somebody; this is about a person who is presumed to be innocent. Can we all

say that?” The venire panel responded affirmatively. At that point, juror Vernie Hudson added,

“when they say they caught someone, that doesn’t mean they caught the exact person that did it.

You’ve got to wait and see the evidence.”

       Hopson’s counsel continued with this line of questioning. “So let me ask you this

question. Does everybody in here have children, nephews?” The venire panel responded

affirmatively. Counsel then gave another hypothetical:

            Your son comes home with a note and he gives it to you from the
            principal. And the note says, Johnny broke the window in the car at the
            school. Now, you go to Johnny and say, come up to your room, we have
            to talk about this. Johnny says, wait a minute, I don’t have to say
            nothing. I don’t have to prove nothing. They have to come tell you
            everything. Raise your hand if you’re not putting up with that at home.

(Emphasis added.) The venire panel again responded in the affirmative. At this, Hopson’s

counsel argued, “If you’re not putting up with that at home, how could you possibly put up with



                                                -3-
that in a trial.” He immediately followed up with, “Now, can you, and do you honestly believe

that the defendant shouldn’t have to say anything or prove anything, that [the prosecutors] have

to proof [sic] this whole trial? Can you raise your hand if you honestly believe that.” After the

venire panel responded affirmatively, juror Carol King asked, “Repeat the question.”

       In response to King’s request, Hopson’s counsel rephrased the point without using

hypothetical situations:

            Okay. If you honestly believe that the Commonwealth’s Attorneys have
            to prove everything beyond a reasonable doubt, the defendant doesn’t
            have to say a word or prove one shred of evidence in this case, if you
            believe that that’s their burden, the defendant doesn’t have to testify, say
            anything or present any evidence, if you believe that is true, could you
            please raise your hand.

The venire panel responded affirmatively. Juror Hudson interjected: “He doesn’t. It’s your job.

. . . What I mean by that is, because of client/lawyer confidentiality, you should know all the

information in order to defend him properly.” Hopson’s counsel asked, “But do you understand

that it’s not my job to put on any evidence; that’s the Commonwealth’s job?” Hudson responded

with his own question, “You don’t have to come up with anything to defend him when they

make their allegations?” Hopson’s counsel answered, “We can just sit there silent. That’s what

the law requires. Probably isn’t likely I’m going to do that.”

       No doubt confused by this exchange, juror Edwin Maier said: “I would want to present

something in that case to say if I was innocent. I would stand up for my rights, for my moment to

speak. If it’s their right to prove everything, that’s fine. I still wouldn’t sit by and say nothing,

me, personally.” Hopson’s counsel changed the focus of Maier’s remark, “I understand. I

perfectly understand. Then you think that somebody charged with murder, they should get up

there and tell their side of the story?” Maier answered: “I feel like they should. I mean, I don’t

think they should sit there and be quiet, let someone else say something.”



                                                 -4-
       Addressing the entire venire, Hopson’s counsel commented favorably on Maier’s remark.

“This gentleman,” referring to Maier, “has brought up a good point. This man is charged with

murder. He says, in his opinion, he’s not trying to buck the law or cause any ripple effect here,

but he says he should get up on this witness stand and tell you what happened. He’s charged

with murder. Can you raise your hand if you agree with that?” The transcript does not record

any group affirmative response by the venire. Instead, juror Hudson said: “I know I would if I

was in that place.” Several other prospective jurors — Steven Featherlin, James King, JoAnn

Swoveland, Vonda Carter, Edwin Maier, Robert Jackson, and Temika Kidd — similarly agreed.

       When given his opportunity to question the venire, the prosecutor sought to clarify the

earlier series of questions and answers by Hopson’s counsel: “Some of you raised your hands in

reference to the fact that if the defendant does not take the stand, that you will wonder because

you would want to defend yourself and take the stand; is that correct? Some of you did do that?”

The venire panel responded affirmatively. The prosecutor then refocused the question: “If the

Judge were to instruct you that the law is that this man, the defendant, does not have to take the

stand to defend himself, could you follow the law?” The panel responded affirmatively. To

further clarify, the prosecutor again asked:

            Could each and every one of you, especially those who raised your hands
            and said you would want to take the stand and defend yourself, I
            understand your personal belief, but could you follow the law that this
            Judge is going to instruct you that says the defendant does not have to
            take the stand in this case to defend himself?

The venire panel responded affirmatively. The prosecutor confirmed, “No one says no to that?”

The panel agreed.

       Hopson’s counsel moved to strike for cause eight jurors: Maier, Hudson, James King,

Featherlin, Jackson, Swoveland, Kidd, and Winnegan. The trial court struck Maier and Hudson

for cause because “they were very vocal in their opinions” during voir dire. The other jurors, the


                                               -5-
court held, gave no indication they would have any difficulty following the instructions of law

recognizing the defendant’s right not to take the stand or to put on any evidence in his defense.

        Hopson and the Commonwealth exercised their peremptory strikes, and the court seated a

petit jury to try the case. The jury found Hopson guilty of voluntary manslaughter and use of a

firearm during the commission of that felony. The trial court dismissed the firearm charge and

entered final judgment convicting Hopson of voluntary manslaughter.

                                                 II.

        On appeal, Hopson argues that the trial court abused its discretion in striking only two of

the eight jurors Hopson sought to discharge for cause. The remaining six jurors, Hopson claims,

likewise should have been stricken because they could not be trusted to recognize his

constitutional right not to testify or to present evidence in his defense. We find no error in the

trial court’s decision.

        Virginia “jurisprudence according deference to the trial court’s discretion in

consideration of juror voir dire matters is long-standing.” Juniper v. Commonwealth, 271 Va.

362, 397, 626 S.E.2d 383, 406 (2006); Townsend v. Commonwealth, 270 Va. 325, 329, 619

S.E.2d 71, 73 (2005). This deference stems from our recognition that “a trial judge who

personally observes a juror, including the juror’s tenor, tone, and general demeanor, is in a better

position than an appellate court to determine whether a particular juror should be stricken.”

Teleguz v. Commonwealth, 273 Va. 458, 475, 643 S.E.2d 708, 719 (2007). In this respect, the

question “[w]hether a juror is impartial is a pure question of historical fact.” David v.

Commonwealth, 26 Va. App. 77, 81, 493 S.E.2d 379, 381 (1997) (citing Wainwright v. Witt,

469 U.S. 412, 428 (1985)). Absent a showing of “manifest error,” we will not overturn the trial

court’s exercise of its discretion during voir dire. Juniper, 271 Va. at 401, 626 S.E.2d at 408.



                                                -6-
        Venire panel members who express preconceived opinions do not become per se

disqualified to sit on the petit jury:

             It is not uncommon to discover during voir dire that prospective jurors
             have preconceived notions, opinions, or misconceptions about the
             criminal justice system, criminal trials and procedure, or about the
             particular case. Even though a prospective juror may hold preconceived
             views, opinions, or misconceptions, the test of impartiality is whether the
             venireperson can lay aside the preconceived views and render a verdict
             based solely on the law and evidence presented at trial.

Cressell v. Commonwealth, 32 Va. App. 744, 761, 531 S.E.2d 1, 9 (2000) (quoting Griffin v.

Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995) (citation omitted)).

        Faced with this problem, trial courts must examine the “the nature and strength of the

opinion formed.” Briley v. Commonwealth, 222 Va. 180, 185, 279 S.E.2d 151, 154 (1981)

(citation omitted). “The spectrum of opinion can range, by infinite shades and degrees, from a

casual impression to a fixed and abiding conviction. The point at which an impression too weak

to warp the judgment ends and one too strong to suppress begins is difficult to discern.” Id.

“The opinion entertained by a juror, which disqualifies him, is an opinion of that fixed character

which repels the presumption of innocence in a criminal case, and in whose mind the accused

stands condemned already.” Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 91

(1980) (citation omitted and emphasis added).

        That line is not irrevocably breached merely by juror comments about the defendant’s

failure to take the stand in his own defense. “It would be unrealistic to think that jurors do not

notice when defendants fail to testify.” Townes v. Commonwealth, 234 Va. 307, 329, 362

S.E.2d 650, 662 (1987) (citing Carter v. Kentucky, 450 U.S. 288, 301 n.18 (1981)). To be sure,

“it is not surprising that jurors would want or expect a defendant to testify; any conscientious

juror naturally would want all the help he or she could get in deciding a case. It should not be




                                                -7-
grounds for a per se exclusion, therefore, when prospective jurors on voir dire indicate their

wants or expectations in this respect.” Id. 1

       In our case, the trial court determined that the prospective jurors challenged by Hopson

did not hold impermissible opinions of a “fixed character,” Justus, 220 Va. at 976, 266 S.E.2d at

91, in opposition to the defendant’s presumed innocence or his right to present no defense. In

reviewing this exercise of discretion, we examine the “entire voir dire, not just isolated portions.”

Juniper, 271 Va. at 401, 626 S.E.2d at 408 (quoting Jackson v. Commonwealth, 267 Va. 178,

191, 590 S.E.2d 520, 527 (2004)); see also Wolfe v. Commonwealth, 265 Va. 193, 212, 576

S.E.2d 471, 482 (2003). From that vantage point, we cannot conclude the trial court abused its

discretion in reaching this conclusion.

       The voir dire questions by Hopson’s counsel did more to confuse the issue than to clarify

it. His first series of questions required the venire members to choose between saying (i) Hopson

is guilty, (ii) Hopson is not guilty, and (iii) they do not know if he is guilty or not guilty. When

the venire members said they did not know, counsel chastised them for misunderstanding the

Commonwealth’s burden of proof and Hopson’s imputed innocence. As juror Carol King

correctly pointed out, however, she understood Hopson was “presumed innocent” but that is

entirely different from declaring him “not guilty — not guilty is a verdict.” No prospective juror,

she rightly insisted, could predict the verdict in the case.



       1
         See also Eaton v. Commonwealth, 240 Va. 236, 247, 397 S.E.2d 385, 391-92 (1990)
(finding no error in seating a juror who “initially voiced concern” about the defendant not taking
the stand but later confirmed his willingness to abide by the court’s instructions clarifying the
defendant’s rights); Pope v. Commonwealth, 234 Va. 114, 123, 360 S.E.2d 352, 358 (1987)
(approving seating of juror who initially “indicated by his answers that he believed that the
defendant was required to prove his innocence” but later affirmed his duty to presume the
defendant’s innocence); McGill v. Commonwealth, 10 Va. App. 237, 242-43, 391 S.E.2d 597,
600-01 (1990) (holding no error in refusing to strike a juror for cause despite the necessity to
correct a preconceived notion that the defendant was required to prove his innocence).

                                                 -8-
         Equally misleading were the lengthy hypotheticals concerning conversations at work

about “Cathy Caffeine” being caught for stealing from Starbucks or a parent’s reaction to a son

who refused to explain a note home from the school principal. Idle conversation around the

water cooler is hardly a reliable test case for probing one’s understanding of the burdens of proof

in criminal law or one’s ability to faithfully conform to the sworn duties of a juror. As for the

parent-child hypothetical — “Raise your hand if you’re not putting up with that at home.” — few

parents would recognize (and even fewer children would expect to successfully invoke) a Fifth

Amendment privilege in the face of a disciplinary note from the principal. “If you’re not putting

up with that at home, how could you possibly put up with that in a trial,” counsel asked

rhetorically. The answer was too plain to say: Because the defendant is not my schoolboy son,

and the courtroom is not my home.

         That brings us to the last series of questions, those ostensibly directed at the defendant’s

right not to testify or to present any evidence. Here again, the questions posed by Hopson’s

counsel appeared designed more to create a false issue than to discern a true misunderstanding

on the part of the venire. Juror Hudson (whom the trial court later struck for cause) said he

understood Hopson’s right not to testify but expected Hopson’s counsel to “come up” with

something “to defend him when they make their allegations.” Juror Maier (whom the trial court

later struck for cause) also confirmed he understood Hopson’s right not to testify, but Maier said

he personally would exercise his right to testify: “I would want to present something in that case

to say if I was innocent. I would stand up for my rights, for my moment to speak.” Hopson’s

counsel then recast Maier’s remark: “Then you think that somebody charged with murder, they

should get up there and tell their side of the story?” Maier’s response seemed to concede the

point.




                                                 -9-
       Hopson’s counsel then sought to project Maier’s responses to the entire venire panel.

Counsel told the panel that Maier “has brought up a good point. This man is charged with

murder. He says, in his opinion, he’s not trying to buck the law or cause any ripple effect here,

but he says he should get up on this witness stand and tell you what happened. He’s charged

with murder. Can you raise your hand if you agree with that?” It was in response to that

question that juror Hudson said: “I know I would if I was in that place.” The other venire

members (Featherlin, James King, Swoveland, Carter, Maier, Jackson, and Kidd) appeared to

adopt Hudson’s statement.

       This entire discussion, however, subtly confused the issue. Hopson had a constitutional

right not to testify. He had an equally fundamental constitutional right to testify. The only issue

the venire jurors should have been questioned on was whether they would hold it against Hopson

if he chose to exercise the former, not the latter, constitutional right. Whether the jurors

themselves would make a similar choice, if they were charged with a crime, is entirely beside the

point. See Isom v. State, 682 S.W.2d 755, 757 (Ark. 1985) (finding no bias on part of juror who

said he would want to testify if he were on trial but understood that a defendant is not required to

testify and that the defendant’s refusal to testify cannot be held against him).

       The prosecutor untangled this knot with his follow-up questions: “Some of you raised

your hands in reference to the fact that if the defendant does not take the stand, that you will

wonder because you would want to defend yourself and take the stand; is that correct?” The

venire panel responded affirmatively. The prosecutor then correctly reframed the relevant

question: “If the Judge were to instruct you that the law is that this man, the defendant, does not

have to take the stand to defend himself, could you follow the law?” The jury venire again

responded affirmatively. To further clarify, the prosecutor again asked:




                                                - 10 -
               Could each and every one of you, especially those who raised your
               hands and said you would want to take the stand and defend
               yourself, I understand your personal belief, but could you follow
               the law that this Judge is going to instruct you that says the
               defendant does not have to take the stand in this case to defend
               himself?

The panel responded affirmatively. The prosecutor confirmed, “No one says no to that?” The

panel again agreed.

       This exchange was not a last-minute rehabilitation of venire members who had expressed

a fixed predisposition hostile to the defendant’s rights. Prior to the first question being asked by

Hopson’s counsel, the prospective jurors affirmed during the court’s opening colloquy that they

understood “the defendant is presumed to be innocent,” that “the Commonwealth must prove the

defendant’s guilt beyond a reasonable doubt,” and that “the defendant is not required to produce

evidence.” And even in the midst of the confusion caused by Hopson’s counsel, the prospective

jurors again confirmed on three separate occasions their agreement with the proposition that the

defendant was presumed innocent and had a right not to testify or produce evidence. Thereafter,

the prosecutor’s closing series of questions merely reconfirmed the venire’s understanding and

agreement with these principles. See, e.g., Eaton v. Commonwealth, 240 Va. 236, 247, 397

S.E.2d 385, 391-92 (1990); Townes, 234 Va. at 328, 362 S.E.2d at 662; Pope v. Commonwealth,

234 Va. 114, 123, 360 S.E.2d 352, 358 (1987); McGill, 10 Va. App. at 243, 391 S.E.2d at 601.

       In sum, the six prospective jurors that the trial court declined to strike did not offer any

opinion of a “fixed character which repels the presumption of innocence in a criminal case” or

reveal a predisposed belief that “the accused stands condemned already.” Justus, 220 Va. at 976,

266 S.E.2d at 91 (citation omitted and emphasis added). 2 At most, these venire members stated


       2
         This distinguishes our case from Breeden v. Commonwealth, 217 Va. 297, 299 n.*, 227
S.E.2d 734, 736 n.* (1976), where a juror believed “the fact that [the defendant] is here is strong
indication that he is guilty.” It was in the face of this obviously impermissible statement of bias

                                               - 11 -
only that they would choose to testify if they were accused of a crime. This understandable

personal opinion, which they affirmed would not prejudice Hopson’s corresponding right not to

testify, did not disqualify them from sitting on the petit jury in this case.

                                                  III.

        Because the trial court did not abuse its discretion in granting only two of the eight for-

cause strikes requested by Hopson, we affirm his conviction for voluntary manslaughter.


                                                                                      Affirmed.




that the prosecutor’s “long, complex, leading questions” failed to rehabilitate the juror.
Similarly, in Bradbury v. Commonwealth, 40 Va. App. 176, 178, 578 S.E.2d 93, 94 (2003), the
juror voiced an opinion that, in a rape case, “the man bears the burden of proving that the woman
consented to sex.” In response, the trial judge used “leading, long, and complex” questions in an
ineffectual effort at rehabilitation. Id. at 182, 578 S.E.2d at 96.

                                                 - 12 -
