COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

RICHARD RUSH MURRAY, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0874-00-4 JUDGE NELSON T. OVERTON 

 APRIL 10, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Henry E. Hudson, Judge 

 David M. Hall (Phillips, Beckwith, Hall & 

Chase, on briefs), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Richard Rush Murray, Jr. (appellant) was convicted of robbery 

and use of a firearm in the commission of robbery. On appeal, he 

contends the trial court erred by denying his motion to dismiss 

juror Ray for cause. For the reasons that follow, we reverse the 

convictions and remand for a new trial. 

BACKGROUND

 During voir dire, appellant's attorney asked if any member 

of the venire had been a victim of a crime. The following 

exchange took place: 
JUROR RAY: I was held up by gunpoint about 

ten years ago when I lived in Washington, 

D.C. walking home from work. And I could 

find myself having difficulty if – is it Ms. 

Gomez; is that her name. 

[DEFENSE COUNSEL]: Uh-huh. 

JUROR RAY: If she recounted and had any 

kind of similar – I don't know the situation 

-- 

[DEFENSE COUNSEL]: Right, I understand 

that. 

JUROR RAY: I think it was at a store. I 

don't even – I'm not sure – but mine was 

outside and, yes, very upsetting. 

[DEFENSE COUNSEL]: So you think that would 

affect your ability to be impartial? 

JUROR RAY: It could if her – if her recant 

[sic] is similar in any way, yes. 

[DEFENSE COUNSEL]: And you think that would 

affect your -- 

JUROR RAY: Very up – I'm upset right now 

thinking about it. 

[DEFENSE COUNSEL]: I can tell. I'm sorry. 

And I don't mean – you know, that is 

certainly not the purpose here. 

JUROR RAY: And the person that did this to 

me was never found so -- 

[DEFENSE COUNSEL]: That also might -- 

JUROR RAY: -- and so I think – I think it's 

very important to bring such cases – any 

case to trial. And I would be very, you 

know, pleased to be on a jury for a criminal 

trial but I think this crime would be – I 

could be somewhat biased. 

 Defense counsel approached the bench and stated, "I didn't 

really go into great detail because I can tell she's upset but I 

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do think it's going to affect – I mean, I would make a motion to 

strike her." 

 The prosecutor and trial court questioned Ray in an attempt 

to rehabilitate her. When Ray indicated that she "may have an 

inclination to believe the" victim if the facts of the crime 

appear similar, the following colloquy took place: 

THE COURT: Well, there's no question –- I 

don't think there is going to be a lot of 

question that she –- that a robbery 

occurred. 

JUROR RAY: Oh, it's whether or not this -- 

[THE PROSECUTOR]: I think it's a whodunit. 

JUROR RAY: -- is the person? 

[THE PROSECUTOR]: Yes. 

JUROR RAY: Well, then I guess – then I 

guess I would leave it up, of course, to the 

Court and the evidence that is presented to 

make sure that this is the right person. 

 The trial court's final question to Ray was whether she 

felt her experience would affect her "judgment in this case so 

that [she] couldn't be fair either to the prosecutor or to the 

Defendant." 

 Ray responded, "I would think, yes, I could. I would 

think, yes, I could. I am just very – I just wanted to be . . . 

you know, very honest with you." 

 The trial court denied the motion. 

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Preservation of the Issue on Appeal

 After the trial court refused to strike Ray for cause, the 

parties exercised peremptory strikes on the panel of twenty 

potential jurors. Ray was one of eight members of the venire 

panel that was peremptorily struck and excused. The remaining 

twelve jurors were then sworn, after which the trial court asked 

counsel if the panel was acceptable. Although appellant's 

attorney indicated "for the record" that "this panel is 

acceptable," she advised the trial court that she was 

"preserving our exception that we noted earlier." 

 Relying on Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 

785 (1989), and Buchanan v. Commonwealth, 238 Va. 389, 384 

S.E.2d 757 (1989), the Commonwealth contends appellant failed to 

preserve the issue for appellate review. We disagree. 

 An alleged error is sufficiently preserved for 

consideration on appeal if "at the time the ruling or order of 

the court is made or sought, [a party] makes known to the court 

the action which he desires the court to take or his objections 

to the action of the court and his grounds therefor." Code 

§ 8.01-384. "The primary purpose of requiring timely and 

specific objections is to afford the trial judge a fair 

opportunity to rule intelligently on the issues presented, thus 

avoiding unnecessary appeals and reversals." Rodriguez v. 

Commonwealth, 18 Va. App. 277, 284, 443 S.E.2d 419, 424 (1994) 

(en banc) (citation omitted). 

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 In Spencer, the defendant only objected to questions or 

limitations on questions asked of individual jurors during voir

dire. 238 Va. at 306, 384 S.E.2d at 792-93. Spencer's 

attorney, however, failed to object to the jurors being sworn 

and seated. Id. at 306, 384 S.E.2d at 793. 

 In Buchanan, the Supreme Court refused to address the 

merits of Buchanan's challenge to "the trial court's seating of 

prospective jurors Garrett and Barton" because Buchanan 

"expressly accepted both jurors." 238 Va. at 404, 384 S.E.2d at 

766 (applying Rule 5:25). 

 Here, appellant's attorney challenged Ray for cause during 

voir dire. Moreover, the fact that appellant accepted the panel 

that did not include juror Ray did not negate the earlier 

challenge or waive the objection. Furthermore, appellant 

renewed the objection when accepting the panel without Ray. 

 Because appellant timely moved to strike Ray for cause and 

afforded the trial court a fair opportunity to rule 

intelligently on the issue, and because appellant renewed that 

motion even though Ray had been peremptorily stricken from the 

panel, appellant did not waive his objection to seating Ray so 

as to bar appellate review. 

Analysis

 Code §§ 8.01-357 and 8.01-358 entitle an accused to a panel 

of jurors free from exception before any party exercises 

peremptory challenges. See Brown v. Commonwealth, 33 Va. App. 

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296, 305-06 & n.2, 533 S.E.2d 4, 8 & n.2 (2000) (explaining that 

error in failing to strike juror for cause is not harmless) 

(citing Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 

90 (1980)). 

 "[W]e review a trial court's decision whether to strike a 

prospective juror for cause for an abuse of discretion and that 

ruling will not be disturbed on appeal unless it appears from 

the record that the trial court's action constitutes manifest 

error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 

S.E.2d 1, 6 (2000). "In determining whether a prospective juror 

should have been excluded for cause, we review the entire voir

dire, rather than a single question and answer." Barnabei v. 

Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996) 

(citation omitted). "Every prospective juror must stand 

indifferent to the cause, 'and any reasonable doubt as to a 

juror's qualifications must be resolved in favor of the 

accused.'" Clements v. Commonwealth, 21 Va. App. 386, 392, 464 

S.E.2d 534, 537 (1995) (quoting Breeden v. Commonwealth, 217 Va. 

297, 298, 227 S.E.2d 734, 735 (1976)). "When a juror has 

expressed a disqualifying view during voir dire, the 

clarification or absence of disqualification must emanate from 

the juror in order to establish that the juror is impartial and 

is free of bias." Sizemore v. Commonwealth, 11 Va. App. 208, 

212, 397 S.E.2d 408, 410 (1990). 

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 Applying these principles to our review of the record, we 

find that the questions posed to juror Ray by the trial court and 

the prosecutor and her responses during the voir dire examination 

failed to demonstrate that she could sit as an impartial and 

unbiased juror in the case. 

 Ray became upset when she recalled being the victim of an 

armed robbery, the same crime for which appellant was on trial. 

She maintained throughout the voir dire that if there were any 

similarities between the instant robbery and her robbery, she 

would be inclined to believe the victim. Despite the trial 

court's attempt to assuage Ray's potential anxiety by explaining 

that her sole role was to determine the robber's identity rather 

than whether a robbery occurred, we find such a statement 

improper and ineffective to determine impartiality. The 

victim's credibility remained a substantial factor in the case 

because she positively identified appellant as the robber. Even 

after obtaining some assurance from Ray that she "guess[ed] 

[she] would leave it up . . . to the Court," Ray equivocated in 

her final response by stating that she "would think, yes, [she] 

could" be impartial. 

 In summary, because Ray's responses to voir dire

questioning were ambiguous and equivocal, and because the 

questions and comments used to rehabilitate her came not from 

Ray, but from the prosecutor and the trial court, we hold that 

the trial court erred in denying appellant's motion to dismiss 

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Ray for cause. Because this violation is not harmless, see

Justus, 220 Va. at 975, 266 S.E.2d at 90, we reverse and remand 

for a new trial if the Commonwealth be so advised. 

Reversed and remanded.

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