COURT OF APPEALS OF VIRGINIA
Present: Judges Alst on, McCullough and Huff Argued at Alexandria, Virginia

SAMUEL LINDEN WEBBER MEMORANDUM OPINION * BY v. Record No. 0665-12-4 J UDGE STEPHEN R. McCULLOUGH JUNE 4, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LOUDOUN COUNTY Herman A. Whisenant, Jr., Judge Designate Thomas K. Plofchan (Jason R. Collins; Jennif er M. Guida; Lavanya K. Carrithers; Bruce W. McLaughlin; Westlake Legal Group; Law Offices of Bruce W. McLaughlin, PL C, on briefs), for appellant. Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

Samuel Linden Webber was found guilty of on e count of aggravated sexual battery. On appeal, he argues that the trial court erred in de nying a number of challenge s for cause to members of the venire, and by failing to sua sponte dismiss several members of th e venire for cause. We hold that the trial court erred in denying two of appe llant’s challenges for cause. Accordingly, we reverse and remand.
BACKGROUND 1 The trial court inquired of the venire as follows: [D]o any of you know of any reas on whatsoever wh y you would not be able to give a fair and impar tial trial to the Co mmonwealth and to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 As the parties are fully conversant with th e record in this case and because this memorandum opinion carries no precedential value, this opinion addresses only the facts that are necessary to the parties’ understanding of the disposition of this appeal.UNPUBLISHED- 2 - the defendant based sole ly on the evidence you will hear in this courtroom today, as well as the inst ructions that the Court will give you at a later time? Do you know of any reason? A member of the venire, Sabina Henry, asked if she could speak privat ely with the court. App. at 14. The court indicated that she could do so after counsel had th e opportunity to ask additional questions. App. at 14-15. The venire was told that the victim was betw een the ages of six and eight. Counsel for the prosecution inquired whethe r any members of the venire might ha ve any concerns about serving on a jury and being unbiased based up on what occurred in the Casey An thony case, a high profile case in Florida that, at the time, had been widely comm ented upon in the media. Henry indicated that she is a school teacher in an elementary school and that the principal in her school “has zero tolerance with abusing ch ildren.” App. at 36. She further indicated th at she works with a large number of students aged si x to twelve. She specifically agreed that she deals “with abuse issues quite a bit.” When asked if her experience wo uld give her a tendency to lean toward abused victims, she answered, “[n]ot all the time.” App. at 37. When asked if it would affect her “[s]ome of the time,” she answered, “[i]t depends. Because children can change their mind. Their stories do not always stick to it. Sometimes it goes on, it’s a different story.” App. at 37. Counsel inquired “if you’re given instructions by the Court, can yo u impartially hear all the evidence presented by both sides, impartially, without any bias one way or the other? Do you fe el like you can do that, given your experience at the school, today or not?” Henry answered, “I believe so.” Defense counsel later inquired as follows: Obviously, all parents are protective of their children. In this particular case, we have two children. We have a teenager, and we have a younger child. Given – especially th ose of you who have daughters, do you have a more natural suspic ion towards my client, Mr. Webber, in this particular matter? Do you feel like you may ha ve a greater suspicion against him because; one, he’s the party charged; or because he’s an older- 3 - male, and she’s an older – or youn ger female because, perhaps, you have daughters yourself? Does anyone here have that concern? A member of the venire, Sandra In gram, answered “I’m af raid I might.” App. at 39. She added, “I’m also a school t eacher, so . . . .” App. at 39-40. The prosecution later atte mpted to rehabilitate Ingram: [The prosecutor]: You said yo u may have a bias against the defendant; you’re afraid that you might. Fair enough. But do you feel you would be able to take th at, put it aside, and render your decision solely on the evidence as you hear it and see it and experience it in court? [Mrs. Ingram]: I would h ope so, but I do also have a daughter, so it’s kind of like a double whammy.” [The prosecutor]: Sure. [Mrs. Ingram]: But I would hope so. [The prosecutor]: Well, we’re not asking to pretend you don’t have lives; you’re not robots. [Mrs. Ingram]: Right. [The prosecutor]: But do you think you could take that, put it where it belongs – outsid e the jury room – an d make your decision based on the evidence? Do you feel you could do that? [The juror]: I think so. App. at 53-54. The court later heard from th e members of the venire who had expressed a desire to speak privately with the court, including Henry. Henry told the court, “[m]y sister was molested by her step-father when she was about 8 or 9 years old. So – I was the one who witnes sed the situation.” App. at 57. The follo wing colloquy occurred: THE COURT: Well, I guess the question is: Can you put that aside and listen to th e evidence here today? [Ms. Henry]: Yes, sir.- 4 - THE COURT: You can put that aside. You just wanted us to know about it, right? [Ms. Henry]: Yes, sir. THE COURT: But you can – [Ms. Henry]: Yes, sir. THE COURT: Okay. Does e ither counsel have questions? [The prosecutor]: No, sir. Thank you. [Defense counsel]: Your Honor, just briefly. When you say – the judge asked yo u if you could put it aside. Do you feel like, given that you w itnessed this, that you would lean more heavily towards the defendant, or not? THE COURT: You’ve already asked those questions, Counsel. [Defense counsel]: Well, I – THE COURT: Ask – [Defense counsel]: Would yo u be biased one way or the other? THE COURT: You’ve already asked those questions, and they’ve been answered on the record . We’re not goin g to go through it again. She just simply brought an incident to the Court’s attention, and she said that would not affect her and that she could proceed today on the evidence . That’s it. Thank you, ma’am. App. at 57-58. At the conclusion of voir dire , defense counsel asked that He nry and Ingram be struck for cause. With regard to Henry, the court denied the motion, stating, “[w]ell, counsel, I have to go with her answer. Can’t go with your answer. Yo u asked the question. The question’s been asked. She gave us an answ er, and we have to go with the answer she gave us. We can’t give answers for- 5 - people.” App. at 61. The court al so denied the motion to strike Ingr am for cause. The defense used two of its peremptory strikes to remove Ingram an d Henry from the venire. At the conclusion of the trial, the defendant was found gu ilty of one of the three charges, acquitted of the other two, and sentence d to serve one year in prison.
ANALYSIS Both the Virginia and United St ates Constitutions protect a de fendant’s right to be tried by an impartial jury. Va. Const. art. I, § 8; U.S. Const. amend. VI. To qualify as a juror, a venireman must “stand indifferent in the cause,” Code § 8.01- 358, and any reasonable doubt regarding her impartiality must be re solved in favor of the accused. Breeden v. Commonwea lth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976). In assessing the responses of the member of the venire, the tr ial court must assess “whether her answers during voir dire . . . indicate to the co urt something that would prevent or substantially impair the performance of [her] du ties as a juror in accordance with [the court’s] instructions and [the juror’s] oath.” Andrews v. Commonwealth, 280 Va. 231, 256, 69 9 S.E.2d 237, 251 (2010) (internal quotation marks omitted) (a lterations in or iginal). Trial courts are afforded great deference with regard to asse ssing the fitness of prospective jurors for service on the jury. See Juniper v. Commonwealth , 271 Va. 362, 397, 626 S.E.2d 383, 406 (2006). That is because “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). On appeal, the decision of the trial court with regard to a particular prospective juror is reviewed for “manifest error amounting to an abuse of discretion.” Andrew s, 280 Va. at 256, 699- 6 - S.E.2d at 251. In a ddition, the appellate court examines “the voir dire of [the] juror as a whole, and do[es] not consider the juror’s isolated statements.” Id. Finally, “[i]t is prejudicial erro r for the trial court to force a defendant to use the peremptory strikes afforded him by Code § [1 9.2-262] to exclude a venireman wh o is not free from exception.” Breeden, 217 Va. at 30 0, 227 S.E.2d at 737.
I. P ROSPECTIVE JUROR H ENRY The record reveals two separate grounds for concern with regard to Henry’ s ability to stand indifferent in the cause. First, she mentioned her work in a school and her ex posure to children who alleged they had been abused. She was questioned on that subj ect and provided straightforward answers. Second, after he r work in the school had been explor ed, she later revealed that she had witnessed her sister being molested by her stepfather. This disc losure came in resp onse to the trial court’s question about wh ether members of the venire “[knew] of any reason whatso ever why [they] would not be able to give a fair and impartial trial to the Commonwealth and to the defendant.” App. at 14. The court asked her if she could “put that aside and listen to th e evidence here today?” She answered, “[y]es, sir.” App. at 57. The court then asked a lead ing question, sta ting, “[y]ou can put that aside. You just wanted us to know about it, right?” Agai n, Henry responded, “[y]es, sir.” When counsel attempted to explor e this particular issue, whic h had not been the subject of questioning by counsel before, the trial court inte rrupted counsel and cut off further questioning. 2

2 We note in this connection that Code § 8.01-358 provides in rele vant part that counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror dire ctly any relevant question to ascertain whether he is related to ei ther party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejud ice therein . . . .- 7 - Even under the deferential standard of review , we are left with d oubt concerning Henry’s ability to serve impartially on the jury. First, th e trial court’s use of a leading question certainly weakens the forc e of a prospective juror’s answ er to a rehabi litative question. 3 “A juror who initially signals a basis for disquali fication, perhaps due to ignorance, can be rehabilitated, provided that ‘proof of a prospective juror’s impartiality . . . come[s] from his own mouth [rather than from the] predictable responses to pers uasive suggestions from the attorney who atte mpts to rehabilitate the prospective juror.’” Garcia v. Commonwealth, 60 Va. App. 262, 271, 726 S.E.2d 359, 364 (2012) (quoting Bennett v. Commonw ealth, 236 Va. 448, 469, 374 S.E.2d 303, 316 (1988)). Second, “[t]rial courts primarily determine whet her a venireperson is fr ee from partiality and prejudice through meaningful voir dire .” Griffin v. Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (19 95). Here, after Henry alerted the court to her sister’s abuse, the trial court foreclosed any further voir dire by defense counsel, thus limiting the record with regard to whether Henry could overcome this significant fact in her ba ckground. Witnessing th e sexual abuse of one’s sister is precisely the sort of fact that could na turally elicit bias against a defendant charged with a similar crime. The abse nce of meaningful questi oning precludes any opportunity to allay doubts about Henry’s ability to be impartial. Third, the reason we de fer to trial courts on ap peal is “because the trial court [is] able to see and hear each member of the venire respond to the questions posed. Thus, the trial court is in a superior position to determine whether a juror’s responses during voir dire indicate that the juror would be prevented or impa ired in performing the duties of a juror . . . .” Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 87 5 (2000). “In conducting our re view, we consider the juror’s

3 Although counsel did not object to the lead ing nature of the question, and we do not consider the leading nature of th e question as a basis for reversal , the fact that the trial court posed such a leading question shaped the record and informs our analysis concerning whether the juror could be impartial or whet her doubt exists about that memb er of the venire’s ability to afford the defendant a fair trial.- 8 - entire voir dire , not merely isolated statements.” Id. He re, however, the trial court indicated that it “[had] to go with her answer . . . . The question’s been as ked. She gave us an answer, and we have to go with the answer she gave us .” App. at 61. Thus, rather than weigh Henry’s answers in the totality of the voir dire , the trial court signal ed that it “[had] to go with her answer.” A deferential standard of review is not the same as an abdication of appellate review. Virginia courts have not hesitated, where appropriat e, to reverse a trial cour t’s refusal to strike a juror for cause. See, e.g., Green v. Commonwealth, 262 Va. 105, 546 S.E.2d 446 (2001); Bradbury v. Commonwealth, 40 Va. App. 176, 578 S.E.2d 93 (20 03). On these fact s, even under the deferential standard of review, we are left with doubt regarding He nry’s impartiality . We conclude that the trial court abused its discretion in refusi ng to strike her for cause.
II. P ROSPECTIVE JUROR I NGRAM The trial court’s refusal to strike Ingram for cause was likewise error. Ingram, who indicated she was a school teacher, candidly admitted that she was “afraid [she] might” have greater suspicion against this defendant be cause he is an older male and th e victim is a younger female. App. at 39. She said, “I would hope so,” in response to a question concer ning whether she could “put it aside,” but she elaborated by saying, “I do also have a daughter , so it’s kind of like a double whammy.” App. at 54. Finally, she said, “I think so,” in re sponse to a leading question about whether she could “take that, put it where it be longs – outside the jury room – and make [her] decision based on the evidence.” Similarly ambiguous responses were at issu e in Brown v. Commonw ealth, 29 Va. App. 199, 510 S.E.2d 751 (1 999). There, we conc luded that “[n]early all of [the prospec tive juror’s] responses contained the phrases, ‘I think,’ ‘I don’t know,’ and ‘I would try.’ Her re sponses indicated a great degree of equivocation and created reasonable doubt about her fitness as a juror.” Id. at 208, 510 S.E.2d at 755. Acco rdingly, we reversed and re manded for a new trial.- 9 - The Commonwealth responds by pointing to Weeks v. Comm onwealth, 248 Va. 460, 450 S.E.2d 379 (1994), where the Supreme Court upheld the trial court’s refusa l to grant a motion to strike a member of the venire fo r cause. There are so me parallels between this case and Weeks. The prospective juror at issue in Weeks responded to a question about whet her he personally knew anyone who was the victim of a vi olent crime by stating that his wi fe’s first cousin , who had been a police officer, had been murdered in a drug-related shootout. The venireman indicated that he and his wife had been very close to this cousin. Id. at 475, 450 S.E.2d at 389. In addition, as in this case, the prospective juror in Week s answered, “I think so,” when asked if he coul d “be fair and impartial and set aside anything” he may have heard in the past and whether he could “be fair in this matter, both to the Commonw ealth and to the accused.” Id. That is where th e similarities end. Significantly, in Weeks, th e “I think so” respon se came after the pr ospective juror had “answered many questions by the trial court and counsel which reflected his ab ility to serve as an impartial juror.” Id. Therefore, the prospective juror did not provide the “I think so” response in isolation. Rather, viewed in the context of the entire voir dire , the “I think so” response did not detract from the many answers wh ich indicated the prospective juro r would be impartial. Weeks provides an illustration of the settled principle that a c ourt should review the entire voir dire , rather than an isolated question and answer. Mullis v. Co mmonwealth, 3 Va. App. 564, 570, 351 S.E.2d 919, 923 (1987). Henry, unlike the prospective juror in Weeks, did not “initially . . . answer[] many questions by the trial court and counsel wh ich reflected [her] ability to serve as an impartial juror,” nor did she “respond[] to quest ions by the prosecutor and [say s]he could set aside any opinion [s]he had formed about the ca se and could render a de cision based solely on the law, and evidence produced at trial.” Id. at 475, 450 S.E.2d at 389.- 10 - Our assessment of the entirety of the voir dire leads us to conclude that Ingram’s commendably honest answers disclosed equivocatio n and leads us to doub t whether she would be able to sit impartially. Accordingly, the trial court erred in refusing to strike her for cause. In light of our resolution of appellant’s cont entions with regard to Henry and Ingram, we do not address appellant’s remaining conten tions and assignments of error.
CONCLUSION We reverse appellant’s co nviction and remand for add itional proceedings if the Commonwealth be so advised. Reversed and remanded.