COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

JOHNNY DENNIS BROOKS 

 OPINION BY 

v. Record No. 1616-95-3 JUDGE SAM W. COLEMAN III 

 APRIL 15, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Phyllis Marie Mosby, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The defendant was convicted of statutory burglary. On 

appeal, he contends that the trial court erred (1) by stating in 

a challenged juror's presence that the defendant was challenging 

him for cause, (2) by stating in the jury's presence that the 

defendant was challenging one of the jurors for cause, (3) by 

refusing to hear argument on a motion to strike the juror for 

cause until after the jury had been seated and sworn, and (4) by 

permitting the Commonwealth to introduce copies of indictments 

for the defendant's prior felony convictions during the 

sentencing phase of the bifurcated trial. 

 We hold that the trial court erred by stating in a juror's 

presence, which juror the court ruled to be qualified, that the 

defendant was challenging him for cause. Therefore, we reverse 

the defendant's burglary conviction and remand the case to the 
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trial court. Because the issue may arise on remand, we further 

hold that the indictment for a prior conviction is admissible 

during the sentencing phase as part of the "record of conviction" 

under Code § 19.2-295.1. The case of Folson v. Commonwealth, 23 

Va. App. 521, 478 S.E.2d 316 (1996), holds that an indictment, 

which shows the nature of the charged crime, is part of the 

record of conviction and, therefore, is admissible. Accordingly, 

should a sentencing hearing occur on remand, the trial court may, 

in the exercise of its sound discretion, admit so much of the 

indictment for a prior conviction as may be material and 

relevant. 

 Finally, because we disapprove of the practice utilized by 

the trial court of waiting until after the jury is sworn to hear 

argument on the juror challenge for cause, we use this occasion 

to caution against such practice. 

FACTS

 In response to a question by defense counsel during jury 

voir dire, one of the veniremen stated that he had served as a 

member of a "life saving crew" for about thirteen years with a 

police officer who would be one of the Commonwealth's principal 

witnesses. The venireman, Mr. Hankins, stated that he and the 

officer were "good friends" and "occasionally" did things 

together. When asked whether he would "put a lot of stock in 

what [the officer] testifies to in Court," Hankins responded, 

"[t]hat's possible, yes ma'am." Defense counsel then asked 
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Hankins whether he might favor the officer's testimony over that 

of the defendant or one of the defendant's witnesses. Hankins 

replied, "[i]t's a good possibility." 

 At that point, defense counsel stated she had a motion to 

make. The Commonwealth's attorney requested an opportunity to 

examine the venireman. The prosecutor asked Hankins whether he 

could base his decision in the case "solely on the testimony of 

the witnesses and not on any friendship" with a witness. Hankins 

stated, "I think I, yes sir, think so . . . [y]es sir." When 

asked whether his friendship with the officer would keep him from 

being a fair and impartial juror, Hankins responded, "I don't 

think so." 

 Defense counsel again requested the opportunity to make a 

motion. In the presence of the jury panel, the trial judge and 

defense counsel had the following exchange: 

 DEFENSE COUNSEL: Your Honor, I still have a 

motion. 

 THE COURT: Alright. 

 DEFENSE COUNSEL: Should I do it outside the 

presence of . . . ? 

 THE COURT: Are you moving that Mr. Hankins 

be stricken, is that your motion, by virtue 

of his answers? You want to be heard on 

that, Mr. Fuller? [Mr. Fuller is the 

Commonwealth's attorney.]. 

 PROSECUTION: Well, I mean I think his 

answers indicate that he could be a fair and 

impartial juror. 

 THE COURT: I think he has indicated that he 

can decide the case on the evidence rather 

than on friendship and that he can serve as a 
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fair and impartial juror on the case. 

 DEFENSE COUNSEL: Your Honor, can I just make 

my motion please outside of the presence? 

 THE COURT: Alright, we'll preserve it and do 

it later. Alright. 

The trial judge then ruled that the jury panel was qualified and 

directed the parties to exercise their peremptory challenges. 

The Commonwealth peremptorily struck venireman Hankins. After 

the peremptory strikes, the jury was sworn and the remaining 

venire members were excused. 

 At that point, the trial judge permitted defense counsel to 

make the record by stating her argument in support of the motion 

to strike Hankins for cause. Defense counsel then made an 

additional motion to strike the jury for cause on the ground that 

the judge had tainted the entire panel by stating in their 

presence that defense counsel disapproved of Hankins as a juror 

and wanted to remove him from the jury for cause. The trial 

judge restated his ruling denying the challenge for cause as to 

Hankins and overruled the challenge to the venire. 

I. JUROR CHALLENGE

 "The right to a trial by an impartial jury is guaranteed 

under both the United States and Virginia Constitutions. This 

guarantee is reinforced by legislative enactment and by the rules 

of court. It is the trial judge's duty to secure an impartial 

jury for the parties." Gosling v. Commonwealth, 7 Va. App. 642, 

645, 376 S.E.2d 541, 543 (1989) (citations omitted). "Code 
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§ 8.01-357 assures a defendant a right to an impartial jury drawn 

from 'a panel [of twenty] free from exception . . . .'" Justus 

v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 90 (1980), 

appeal after remand, 222 Va. 667, 283 S.E.2d 905 (1981), cert. 

denied, 455 U.S. 983 (1982). Essential to the fairness of trial 

by jury is a procedure of jury selection that will allow a 

criminal defendant to challenge potential jurors who are not fair 

and impartial and are not free of bias. Lewis v. United States, 

146 U.S. 370, 376 (1892). 

 Here, we are not asked to decide whether the trial court 

erred by refusing to remove juror Hankins for cause.1 Rather, we 

decide whether the trial judge's comments and the Commonwealth's 

attorney's remarks in open court, which informed the venireman 

and the jury panel that the defendant was challenging juror 

Hankins' qualifications, constituted prejudicial error. We are 

also asked to determine whether the procedure employed by the 

 

 1 We assume without deciding that the trial judge was 

correct in overruling the motion to strike Hankins for cause and 

that the jury was free from exception had it not been for the 

subsequent remarks made in the juror's presence. See Hall v. 

Commonwealth, 12 Va. App. 198, 217-19, 403 S.E.2d 362, 374 (1991) 

(holding that a potential juror is not disqualified because he 

has known a principal Commonwealth's witness for a long time, 

provided the juror can base his verdict upon the law and the 

evidence); O'Dell v. Commonwealth, 234 Va. 672, 694, 364 S.E.2d 

491, 503, cert. denied, 488 U.S. 871 (1988) (holding that the 

fact a potential juror states he would "probably" believe or be 

more inclined to believe a witness whom he knows rather than a 

defendant or another witness whom he does not know, without more, 

does not render the juror biased or disqualified); Gosling, 7 Va. 

App. at 645, 376 S.E.2d at 544 (same); Mullis v. Commonwealth, 3 

Va. App. 564, 570-72, 351 S.E.2d 919, 922-24 (1987) (same). 
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trial court of deferring argument on the challenge for cause 

prejudiced the defendant's right to a fair and impartial jury. 

 A. Judge's Statement to Juror Hankins

 We first consider whether the trial judge erred in seating 

juror Hankins on the panel after the judge informed Hankins that 

he was being challenged by the defendant as not being "fair and 

impartial" due to "friendship" and then permitted the 

Commonwealth's attorney to inform Hankins that the prosecution 

considered him "fair and impartial." 

 A trial judge has broad discretion and control over how voir

dire is conducted and the procedure for seating a jury. The 

procedure for hearing challenges to jurors for cause will not be 

grounds for reversal absent manifest error. See Buchanan v. 

Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989), cert. 

denied, 493 U.S. 1063 (1990); Calhoun v. Commonwealth, 226 Va. 

256, 258-59, 307 S.E.2d 896, 898 (1983). However, the trial 

court's exercise of discretion has certain limits. 

 If there be a reasonable doubt whether the 

juror [is prejudiced], that doubt is 

sufficient to insure his exclusion. . . . 

[I]t 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). 

It is settled in Virginia that "counsel should be afforded the 

opportunity to challenge jurors for cause out of the presence of 

the panel." Tuggle v. Commonwealth, 228 Va. 493, 505-06, 323 
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S.E.2d 539, 546 (1984), vacated and remanded on other grounds, 

471 U.S. 1096 (1985). 

 Here, the trial judge did not merely rule on the juror 

challenge and then defer argument on the challenge; the trial 

judge considered the motion, heard part of the Commonwealth's 

argument on the motion in Hankins' presence, and disclosed to 

Hankins that defense counsel was attempting to have him 

disqualified for bias. After the judge asked the Commonwealth's 

attorney to respond to the defendant's motion, the prosecutor 

stated that he thought Hankins "could be a fair and impartial 

juror." The trial judge then overruled the defendant's challenge 

and ruled Hankins qualified. 

 The trial judge should be careful to guard 

against prejudice to the accused by the 

judge's remarks [in the presence of] the jury 

because the influence of the trial judge on 

the jury "is necessarily and properly of 

great weight" and "his lightest word or 

intimation is received with deference, and 

may prove controlling." 

Wilson v. Commonwealth, 2 Va. App. 134, 138, 342 S.E.2d 65, 67 

(1986) (citing Quercia v. United States, 289 U.S. 466, 469 (1933) 

(quoting Starr v. United States, 153 U.S. 614, 626 (1894))). 

 The procedure employed by the trial judge in this instance 

placed the defendant in the untenable position of having a 

prospective juror informed that the defendant wanted him removed 

from the panel for bias and partiality. The trial judge 

compounded the prejudice to the defendant by then allowing the 

Commonwealth's attorney to state that the prosecution found 
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Hankins to be fair and impartial. The effect of this procedure 

was to inform Hankins that defense counsel did not have 

confidence in Hankins' ability to fairly decide the case and to 

permit the Commonwealth's attorney to inform Hankins that the 

Commonwealth had confidence in Hankins' ability to be fair and 

impartial. See Wilson, 2 Va. App. at 138, 342 S.E.2d at 67. As 

in the Wilson case, the judge's and Commonwealth's attorney's 

statements, made in Hankins' presence, created the possibility of 

bias in the mind of the juror against the defendant, where bias 

may not have previously existed. 

 Although the Commonwealth's attorney exercised a peremptory 

challenge to remove Hankins from the jury panel, the trial judge 

erred by seating Hankins on the panel after the statements were 

made that tended to prejudice him against the defendant. See

DeHart v. Commonwealth, 20 Va. App. 213, 216, 456 S.E.2d 133, 134 

(1995). The defendant was entitled to a jury panel free from 

exception. By seating Hankins on the jury panel, the defendant 

was denied the opportunity of having another impartial person sit 

on his jury. Fuller v. Commonwealth, 14 Va. App. 277, 281, 416 

S.E.2d 44, 46 (1992). The Commonwealth's attorney peremptorily 

removing Hankins did not render the error harmless. DeHart, 20 

Va. App. at 216, 456 S.E.2d at 134. 

 Because we reverse due to the error in seating Hankins on 

the panel, we do not address whether the judge's and 

Commonwealth's attorney's statements may have tainted the entire 
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jury panel. 

B. Procedure in Deferring Argument 

 The opportunity to challenge a juror for cause out of the 

presence of the panel does not preclude a trial judge from 

deferring a hearing on the challenges for cause until voir dire

of all prospective jurors is completed. A trial judge must 

evaluate the challenged venireman's qualifications based on the 

voir dire in its entirety, Pope v. Commonwealth, 234 Va. 114, 

123, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015 

(1988), but at some point during or after voir dire the judge 

must allow counsel the opportunity to present argument on a 

challenge for cause out of the jury's presence. Tuggle, 228 Va. 

at 505-06, 323 S.E.2d at 546. From our reading of the record, it 

is clear that the trial judge did not defer ruling on the motion 

to strike until after the jury was sworn. The trial judge 

immediately ruled on the defendant's challenge for cause to juror 

Hankins and only deferred hearing defendant's argument on the 

challenge until after the peremptory challenges and after the 

jury was sworn. 

 A trial judge may have good reason to defer argument on a 

challenge for cause until after voir dire has been completed. 

However, argument on a challenge for cause should not be deferred 

until after the parties have exercised their peremptory 

challenges and the jury has been sworn. Delaying argument until 

after the jury is sworn gives the appearance to the defendant and 
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to the public that the court is unwilling to timely hear or 

consider the grounds for a party's motion. A further evil in 

such practice is that when the challenged venireman remains on 

the jury, the trial judge will be precluded from removing the 

juror without declaring a mistrial should the judge be persuaded 

by the argument, additional authority, or other evidence that the 

juror was not qualified. See Tuggle, 228 Va. at 505-06, 323 

S.E.2d at 546. Thus, the practice enhances the risk that a jury 

may be seated that is not free from exception. A defendant is 

entitled to a panel free from exception before being required to 

peremptorily remove a potential juror; until a trial court 

considers and rules on a challenge for cause, a panel is not free 

from exception. See DeHart, 20 Va. App. at 213, 456 S.E.2d at 

133. 

 We disapprove of the practice of deferring argument until 

after the jury is sworn, but because we reverse on other grounds, 

we do not decide whether the procedure resulted in prejudice in 

this instance. 

II. SENTENCING PHASE - INDICTMENTS

 The defendant contends that the trial judge erred during the 

sentencing phase of the bifurcated trial by admitting into 

evidence copies of indictments for the defendant's seven prior 

felony convictions. He argues that indictments are not 

admissible because they are not part of the "record of 

conviction" under Code § 19.2-295.1. Furthermore, he asserts 
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that an indictment may contain irrelevant and prejudicial 

information. Because this issue will likely recur on remand, we 

address it. 

 "Code § 19.2-295.1 provides, in pertinent part, that 'the 

Commonwealth shall present' to the jury during the sentencing 

phase of a bifurcated trial, 'the defendant's prior criminal 

convictions by certified, attested or exemplified copies of the 

record of conviction." Gilliam v. Commonwealth, 21 Va. App. 519, 

521, 465 S.E.2d 592, 593 (1996). 

 In Folson v. Commonwealth, 23 Va. App. 521, 478 S.E.2d 316 

(1996),2 we held that the term "record of conviction" in Code 

§ 19.2-295.1 includes the indictment for a prior conviction as 

well as the final order. The indictments are "recorded evidence 

that the court convicted appellant for the crimes charged." Id.

at 525, 478 S.E.2d at 318. In this case, the defendant's final 

conviction orders state that the defendant was found guilty "as 

charged in the indictment." Copies of the indictments were 

relevant and admissible to prove the crimes for which the 

defendant had been convicted. See Gilliam, 21 Va. App. at 524, 

465 S.E.2d at 595 ("[T]he legislature incorporated the term 

'record of conviction' into Code § 19.2-295.1 aware that its 

meaning includes both conviction and punishment, thereby 

intending to assist the jury in fashioning a sentence suitable 

both to defendant and the offense."). 

 

 2 The Folson decision was issued after oral argument in the 

present case. 
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 Based upon the Folson decision, the trial judge did not err 

by admitting copies of the indictments as part of the defendant's 

"record of conviction." 

 For the foregoing reasons, we reverse the defendant's 

conviction and remand the case to the trial court. 

Reversed and remanded.