COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued by teleconference 

ERNEST OLIVER HILL, JR. 

 OPINION BY 

v. Record No. 1833-00-2 JUDGE ROBERT P. FRANK 

 AUGUST 14, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Gregory W. Franklin, Assistant Public 

Defender (Office of the Public Defender, on 

briefs), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Ernest Oliver Hill, Jr., (appellant) was convicted by a 

jury of rape, in violation of Code § 18.2-61, sodomy, in 

violation of Code § 18.2-67.1, breaking and entering, in 

violation of Code § 18.2-91, and robbery, in violation of Code 

§ 18.2-58. On appeal, appellant contends the trial court erred 

in barring defense counsel, on voir dire, from inquiring as to 

the prospective jury's duty to consider the full range of 

punishments set forth in the applicable statutes. For the 

reasons stated herein, we agree with appellant and reverse the 

sentencing order of the trial court. 
I. BACKGROUND1

 During voir dire, the following exchange took place: 

[DEFENSE COUNSEL]: I just want to ask you 

if you can consider the full range of 

penalty for the charges? The charges carry 

a minimum of five years to -- 

[COMMONWEALTH'S ATTORNEY]: Objection. 

THE COURT: Objection sustained. You can 

have your exception. Let's move on. 

[DEFENSE COUNSEL]: Judge, my client has a 

right to a fair and impartial jury under his 

Fourth and Sixth Amendment rights. 

THE COURT: I am very familiar with those. 

All right. Let's move on. 

[DEFENSE COUNSEL]: If I can just preserve 

for the record. He has the right to an 

impartial jury that is impartial not only to 

the issue of guilt but also the question of 

punishment, and I should be able to -- 

THE COURT: I have ruled. Don't argue. 

Take your exception and go on to your next 

question. 

[DEFENSE COUNSEL]: I would just quote the 

unpublished opinion of Boykin v. 

Commonwealth and Fishback -- 

THE COURT: You know better than that. Go 

right along. 

[DEFENSE COUNSEL]: Note my exception, 

Judge. 

THE COURT: Yes, ma'am. I did that once 

today. 

 1

 We do not recite the facts of the offense because those 

facts are not relevant to the issue before us. 

 - 2 - 
 The jury convicted appellant of burglary, robbery, rape and 

sodomy and, in the sentencing phase, fixed his punishment at 110 

years in prison. The trial court sentenced appellant to 110 

years. 

II. ANALYSIS 

 Appellant contends the trial court's refusal to allow him 

to explore the prospective jury's views on the statutory range 

of punishment violated his right to an impartial jury on the 

question of punishment. Appellant maintains he has a right to 

determine possible bias of the veniremen with regard to applying 

a broad range of punishment. Without this ability, appellant 

contends, he cannot determine whether jurors are irrevocably 

biased toward one end or the other of the sentencing spectrum. 

 The Commonwealth agrees with appellant that a defendant is 

entitled to an impartial jury on the question of punishment as 

well as guilt. Patterson v. Commonwealth, 222 Va. 653, 658, 283 

S.E.2d 212, 215 (1981). However, the Commonwealth contends this 

basic right does not permit a defendant to inform the jury, 

before the trial has begun, of the range of punishment. The 

Commonwealth concludes that the jury should not be 

"contaminated" with sentencing information prior to the guilt 

phase of the trial. 

 Code § 8.01-358 states: 

 The court and counsel for either party 

shall have the right to examine under oath 

any person who is called as a juror therein 

 - 3 - 
and shall have the right to ask such person 

or juror directly any relevant question to 

ascertain whether he is related to either 

party, or has any interest in the cause, or 

has expressed or formed any opinion, or is 

sensible of any bias or prejudice therein; 

and the party objecting to any juror may 

introduce any competent evidence in support 

of the objection; and if it shall appear to 

the court that the juror does not stand 

indifferent in the cause, another shall be 

drawn or called and placed in his stead for 

the trial of that case. 

 A juror, knowing anything relative to a 

fact in issue, shall disclose the same in 

open court. 

 

Voir dire is further governed by Rule 3A:14, which states, 

in part: 

(a) Examination. - After the prospective 

jurors are sworn on the voir dire, the court 

shall question them individually or 

collectively to determine whether anyone: 

 * * * * * * * 

(6) Has a bias or prejudice against the 

Commonwealth or the accused; or 

(7) Has any reason to believe he might not 

give a fair and impartial trial to the 

Commonwealth and the accused based solely on 

the law and the evidence. 

 Thereafter, the court, and counsel as 

of right, may examine on oath any 

prospective juror and ask any question 

relevant to his qualifications as an 

impartial juror. A party objecting to a 

juror may introduce competent evidence in 

support of the objection. 

 - 4 - 
 In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 

(1989), the Supreme Court of Virginia reviewed the permissible 

scope of voir dire: 

 Trial courts must afford a party a 

"full and fair" opportunity to ascertain 

whether prospective jurors "stand 

indifferent in the cause." LeVasseur v. 

Commonwealth, 225 Va. 564, 581, 304 S.E.2d 

644, 653 (1983), cert. denied, 464 U.S. 

1063, 104 S. Ct. 744, 79 L.Ed.2d 202 (1984). 

However, it is within the trial court's 

sound discretion to decide when a defendant 

has had such an opportunity. Id., 304 

S.E.2d at 653. Further, trial courts are 

not required to allow counsel to ask 

questions which are so ambiguous as to 

render the answers meaningless. See id. at 

579, 304 S.E.2d at 652-53. To be 

permissible, counsel's questions must be 

relevant in that they are such as would 

necessarily disclose or clearly lead to the 

disclosure of relationship, interest, 

opinion, or prejudice. See Code § 8.01-358. 

Where a trial court affords ample 

opportunity to counsel to ask relevant 

questions and where the questions actually 

propounded by the trial court were 

sufficient to preserve a defendant's right 

to trial by a fair and impartial jury, we 

will generally not reverse a trial court's 

decision to limit or disallow certain 

questions from defense counsel. See

LeVasseur, 225 Va. at 582, 304 S.E.2d at 

653; Mackall v. Commonwealth, 236 Va. 240, 

251, 372 S.E.2d 759, 766 (1988), cert.

denied, 492 U.S. 925, 109 S. Ct. 3261, 106 

L.Ed.2d 607 (1989). 

Id. at 401, 384 S.E.2d at 764-65. 

 

 We discussed the Sixth Amendment right to an impartial jury 

in Reynolds v. Commonwealth, 6 Va. App. 157, 367 S.E.2d 176 

(1988). We wrote: 

 - 5 - 
 A criminal defendant is guaranteed an 

impartial jury by the sixth amendment to the 

United States Constitution, which is 

applicable to the states by virtue of the 

fourteenth amendment. Duncan v. Louisiana, 

391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 

L.Ed.2d 491 (1968); United States v. 

Thompson, 744 F.2d 1065, 1068 (4th Cir. 

1984); Briley v. Commonwealth, 222 Va. 180, 

184, 279 S.E.2d 151, 154 (1981). The 

principles of due process, embodied in the 

fourteenth amendment to the United States 

Constitution, also guarantee a defendant's 

right to an impartial jury. Ristaino v. 

Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 

1020 n.6, 47 L.Ed.2d 258 (1976). "The 

constitutional and statutory guarantee of an 

impartial jury is no mere 'legal 

technicality,' but a substantive right 

scrupulously to be observed in the 

day-to-day administration of justice." 

Martin v. Commonwealth, 221 Va. 436, 445, 

271 S.E.2d 123, 129 (1980). "Voir dire

plays a critical function in assuring the 

criminal defendant that his Sixth Amendment 

right to an impartial jury will be honored. 

Without adequate voir dire the trial judge's 

responsibility to remove prospective jurors 

who will not be able impartially to follow 

the court's instructions and evaluate the 

evidence cannot be fulfilled." 

Rosales-Lopez v. United States, 451 U.S. 

182, 188, 101 S. Ct. 1629, 1634, 68 L.Ed.2d 

22 (1981) (citations omitted). 

Id. at 164-65, 367 S.E.2d at 179-80. 

 Code § 19.2-295.1 mandates a bifurcated 

proceeding in all felony jury trials. The 

statute divides the trial into two distinct 

phases. The jury first resolves the issue 

of guilt or innocence and, "upon a finding 

that the defendant is guilty . . ., a 

separate proceeding limited to the 

ascertainment of punishment shall be held as 

soon as practicable before the same jury." 

Code § 19.2-295.1 (emphasis added). The 

procedure assures the jury access to 

"information specific only to sentencing, 

 - 6 - 
apart from considerations of guilt or 

innocence," thereby promoting a punishment 

appropriate to the circumstances without 

corrupting the initial determination of 

guilt or innocence with prejudice. Gilliam 

v. Commonwealth, 21 Va. App. 519, 525, 465 

S.E.2d 592, 595 (1996); see also Farmer v. 

Commonwealth, 10 Va. App. 175, 179, 390 

S.E.2d 775, 776-77 (1990), aff'd en banc, 12 

Va. App. 337, 404 S.E.2d 371 (1991). 

Daye v. Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288 

(1996). 

 The Commonwealth argues that by advising the jury panel 

during voir dire of the sentencing range, a defendant will be 

"corrupting the initial determination of guilt or innocence." 

We disagree with the Commonwealth. In order for counsel to 

properly explore whether the jury panel may be irrevocably 

biased toward one end or the other of the sentencing spectrum, 

it is proper for counsel to inform the panel of the sentencing 

parameters. 

 Clearly, voir dire is not allowed at the sentencing phase 

of the bifurcated proceeding. There are no strikes for cause 

and no further peremptory challenges because sentencing "shall 

be held as soon as practicable before the same jury." Code 

§ 19.2-295. 

 Therefore, defense counsel can only inquire as to a 

venireman's impartiality as to punishment during voir dire under 

Code § 8.01-358 and Rule 3A:14. 

 - 7 - 
 The appellant was denied a "full and fair" opportunity to 

ascertain whether the prospective jurors "stood indifferent in 

the cause." Therefore, we reverse the sentencing order and 

remand the case for re-sentencing. Counsel may voir dire the 

jury panel consistent with this opinion. 

Reversed and remanded.

 - 8 -