James Earl David v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Moon,* Willis and Elder
Argued at Richmond, Virginia
JAMES EARL DAVID OPINION BY
v. 	Record No. 2735-96-2 	JUDGE NORMAN K. MOON
NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Matthew T. Paulk, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
John H. McLees, Assistant Attorney General
(Richard Cullen, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
James Earl David was convicted of two counts of robbery in
violation of Code § 18.2-58 and two counts of use of a firearm in
the commission of a robbery in violation of Code § 18.2-53.1.
David asserts that the trial court abused its discretion by
refusing to strike a prospective juror for cause. 	We agree and
reverse.
During voir dire, defense counsel asked the panel members if
they had been employed in law enforcement. 	One juror stated that
she had some "good friends" with the Henrico County Sheriff's
Office and that the daughter of her co-worker is a deputy in the
Chesterfield County Sheriff's Office. 	She also revealed that she
was a crime victim. 	In 1987, she said, someone mugged, robbed,
*When the case was argued Judge Moon presided. 	Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.

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and raped her; in 1984, someone broke into her home. 	The court
then stated, "The real question is, will [your victimization]
affect you in any way in this case to sit fairly and
impartially?" 	The juror replied, "I can sit impartially, but I
would probably tend to prosecute to the max because of my
experiences." 	The defense attorney asked, "Are you indicating to
the Court that you would be more likely to listen to the
prosecution's side in this case?" 	The juror replied, "As being a
victim among other things."
At the conclusion of her voir dire, the defense counsel
informed the court that she had a motion. 	Without addressing her
statement, the court engaged the juror in the following dialogue:
The Court: 	I want you to be more clear,
ma'am. 	Can you sit fairly and
impartially in this case?
Juror Bullard: Depends on what evidence is
presented.
The Court: 	Can you try the case on the
evidence?
Juror Bullard: Yes.
The Court: 	You are not predisposed to
convict?
Juror Bullard: No.
The Court: 	You will listen to the
evidence, weigh it fairly and
impartially and sit?
Juror Bullard: Yes.
The Court: 	Would you consider the whole
range of punishment in your
deliberations from what they
said to the minimum to the
maximum?

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Juror Bullard: I will consider it, probably
tend to go to the upper most
reaches.
The Court: 	But you would consider it?
Juror Bullard: Yes.
The Court: 	You would consider it with an
open mind?
Juror Bullard: Yes.
Defense counsel made a motion to strike the juror and
objected to the court's rehabilitation of her through leading
questions. 	Counsel noted that the juror stated quite pointedly
that she would be more favorable to the prosecution than to the
defendant. 	The court overruled her motion. 	The defense then
used a peremptory challenge to strike the juror.
Both the United States Constitution and the Virginia
Constitution guarantee a criminal defendant's right to an
impartial jury. 	See U.S. Const. amend. VI, XIV; Va. Const. art.
I, § 8; see also Code § 8.01-358; Rule 3A:14. 	"`If there be a
reasonable doubt whether the juror possesses [the ability to give
an accused a fair and impartial trial], that doubt is sufficient
to insure his exclusion. 	For . . . it is not only important that
justice should be impartially administered, but it should also
flow through channels as free from suspicion as possible.'"
Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735
(1976) (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941,
943 (1879)).
Additionally, a trial court's refusal to remove a juror who

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is not impartial does not constitute harmless error even if
counsel uses a peremptory strike to exclude the juror. 	Id. at
300, 227 S.E.2d at 736 ("It is prejudicial error for the trial
court to force a defendant to use the peremptory strikes afforded
him by Code § 8-208.21 to exclude a venireman who is not free
from exception.") (citing Dowdy v. Commonwealth, 50 Va. (9
Gratt.) 727, 737 (1852)).
Whether a juror is impartial is a pure question of
historical fact. 	Wainwright v. Witt, 469 U.S. 412, 428 (1985).
Thus, the trial court's resolution of the issue will not be
disturbed on appeal absent "manifest error." 	Stewart v.
Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert.
denied, 501 U.S. 848 (1993).
The true test of impartiality lies in
the juror's mental attitude. 	Furthermore,
proof that she is impartial must come from
her uninfluenced by persuasion or coercion.
The evidence used to show the requisite
qualifications must emanate from the juror
herself, unsuggested by leading questions
posed to her.
Education Books, Inc. v. Commonwealth, 3 Va. App. 384, 389, 349
S.E.2d 903, 907 (1986) (citing Bausell v. Commonwealth, 165 Va.
669, 682-83, 181 S.E. 453, 458 (1935); Parsons v. Commonwealth,
138 Va. 764, 773, 121 S.E. 68, 70 (1924)).
This case is controlled by the rule in Parsons. 	The record
shows that after the juror declared her bias in favor of the
prosecution, the evidence used to rehabilitate her did not come
from her but was based on her mere assent to leading questions.

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This juror was not per se disqualified because of her
declared bias; had her rehabilitative responses come from her in
response to non-leading questions, the trial court would not have
abused its discretion by refusing to strike her for cause.
Because her rehabilitative responses consisted solely of her mere
assent to the court's leading questions, however, she should have
been stricken for cause. 	See Parsons, 138 Va. at 773, 121 S.E.
at 70. 	Therefore, we reverse and remand for a new trial.
Reversed and remanded.