COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Norfolk, Virginia 

ZACKARY ANTHONY CARTER, S/K/A 

 ZACKERY ANTHONY CARTER 

 MEMORANDUM OPINION* BY 

v. Record No. 2862-97-1 JUDGE JAMES W. BENTON, JR. 

 JANUARY 12, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Melinda R. Glaubke (Thomas L. Watkins, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 A jury convicted Zackery Anthony Carter of murder in the 

second degree and use of a firearm in the murder. Carter 

contends that the trial judge erred in refusing to strike for 

cause seven jurors. Because we conclude that one of the jurors 

should have been excused for cause, we reverse the convictions 

and remand for a new trial. 

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

both the United States and Virginia Constitutions. See U.S. 

Const. amends. VI and XIV; Va. Const. art. I, § 8. 

 "[A prospective juror] must be able to give 

[the accused] a fair and impartial trial. 

Upon this point nothing should be left to 

inference or doubt. All the tests applied by 

the courts, all the enquiries made into the 

state of the juror's mind, are merely to 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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ascertain whether [the juror] comes to the 

trial free from partiality and prejudice." 

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)). 

 In determining whether a juror's responses during voir dire 

have indicated an impartial state of mind, we must view those 

responses within the context of the entire voir dire of that 

juror. Sizemore v. Commonwealth, 11 Va. App. 208, 212, 397 

S.E.2d 408, 411 (1990). If the voir dire establishes that the 

juror "holds a preconceived view that is inconsistent with an 

ability to give an accused a fair and impartial trial, or . . . 

persists in a misapprehension of law that will render [the juror] 

incapable of abiding the court's instructions and applying the 

law, [the trial judge] must . . . exclude[] [the juror] for 

cause." Id. at 211, 397 S.E.2d at 410. 

 The principle is well established that "[t]o qualify as a 

juror, a venireman must 'stand indifferent in the cause' and any 

reasonable doubt regarding [the juror's] impartiality must be 

resolved in favor of the accused." Barker v. Commonwealth, 230 

Va. 370, 374, 337 S.E.2d 729, 732-33 (1985) (citation omitted). 

 "If there be a reasonable doubt whether the 

juror [is impartial and free from prejudice], 

that doubt is sufficient to insure [the 

juror's] 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, 217 Va. at 298, 227 S.E.2d at 735 (citation omitted). 
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 When examined on voir dire, the venireman DeWoody stated 

that he was informed about the case from both television and the 

newspapers. DeWoody recognized Carter from the media exposure 

and was able to recall with significant detail certain events 

that occurred around the time of the killing. DeWoody also 

recalled from television reports that an earlier trial ended 

because of "a mistrial," stating "I believe it was a hung jury." 

 When asked if he could recall whether he had formed any opinion 

as to guilt or innocence, DeWoody responded "Guilt. It is how it 

was portrayed in the media. They don't usually do both sides." 

When asked if he could put out of his mind the reports he had 

seen about the case, DeWoody said, "As best I can, yes." 

 DeWoody also responded as follows to a series of questions: 

 [COUNSEL]: Do you understand the defendant 

does not at any time throughout the entire 

trial have to put on any evidence to prove 

his innocence? 

 [DEWOODY]: Yes. 

 [COUNSEL]: Would you expect the defendant to 

present some evidence on his own behalf to 

prove his innocence? 

 [DEWOODY]: Yes. 

 [COUNSEL]: Again, with that idea in mind -- 

and, again, this is one of those areas I just 

have to ask you -- knowing this is the law, 

how do you really feel about it is what we 

are getting at? You would expect a defendant 

to prove to you in some fashion that he did 

not commit the crime? 

 [DEWOODY]: Yes. 

 [COUNSEL]: Even though you are told the law 

is he doesn't have to? 
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 [DEWOODY]: Yeah. 

 [COUNSEL]: Would that law be difficult for 

you to follow, if not impossible, for you to 

follow? 

 [DEWOODY]: I don't think so. Just 

preconceived notions. 

 [COUNSEL]: So you would think -- if I'm 

putting words in your mouth, tell me. You 

would think if a person was innocent, they 

would prove that to you? 

 [DEWOODY]: Yes. 

No further inquiries were made in this area. 

 In Breeden, where a prospective juror affirmatively 

indicated that she expected the defendant to prove his innocence, 

the Supreme Court ruled that her response "was not so much a 

symptom of her ignorance of the law as a candid reflection of the 

state of her mind concerning [the defendant's] guilt." Id. at 

300, 227 S.E.2d at 736. We believe that the same can be said of 

DeWoody's responses that he expected Carter to present evidence 

and to prove his innocence. Although DeWoody acknowledged that 

the law did not require Carter to put on evidence to prove his 

innocence, DeWoody clearly indicated that he expected an innocent 

person to put on evidence that proved that person's innocence. 

 "'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). 
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Indeed, we have ruled that when a prospective juror "harbor[s] 

the . . . expectation that one accused and charged of criminal 

wrongdoing will produce evidence to prove his or her innocence 

. . . , unless the record affirmatively establishes that the 

juror['s] expectations of the defendant were not fixed, we must 

assume that the [juror was] seated while continuing to harbor the 

view that the defendant must prove his [or her] innocence, a 

disqualifying bias." Sizemore, 11 Va. App. at 212, 397 S.E.2d at 

410-11. 

 DeWoody had specific knowledge of the case from the news 

media, had formed an opinion of guilt based on that information, 

and believed that Carter would have to put on some evidence to 

prove his innocence. DeWoody's opinion clearly expressed a state 

of mind "that is clearly at odds with an accused's presumption of 

innocence and his [or her] right not to have to produce evidence 

to establish his [or her] innocence." Id. at 212, 397 S.E.2d at 

410. When a juror has expressed such a state of mind, that juror 

has raised a reasonable doubt about his or her ability to stand 

impartially. Thus, we hold that the trial judge, in concluding 

that DeWoody was qualified, did not discharge the "affirmative 

duty to secure an impartial jury for the parties." Educational 

Books, Inc. v. Commonwealth, 3 Va. App. 384, 390, 349 S.E.2d 903, 

908 (1986). 

 Because the trial judge erred by not striking DeWoody from 

the jury, we need not address Carter's contention that the trial 
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judge erred by not striking any of the other six jurors. For the 

reasons we have stated, we reverse the convictions and remand for 

a new trial. 

 Reversed and remanded.