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.