COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Richmond, Virginia

LARRY JERMAINE BELL MEMORANDUM OPINION * BY v. Record No . 1765-16-2 JUDGE MAR Y GRACE O’BRIEN AUGUST 8, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HALIFAX COUNTY Kimberley S. White, Judge Jim D. Childress, III (Childres s Law Firm, PC, on brief), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.
A jury convicted Larry Jermaine Bell (“appellant”) of distribu ting cocaine as a third or subsequent offense in violation of Code § 18.2-248(C). Appella nt contends that he was denied the right to have his case heard by a jury selected from a fair and impartial panel. He assigns error to the court’s failure to strike for cause prospective Juror E.L., a relative of a Commonwealth’s witness. Because we fi nd that the court e rred in failing to st rike Juror E.L. for cause, we reverse appellant’s conviction and r emand for a new trial. 1
BACKGROUND Donna Morris, a paid police informant, purchased cocaine from appellant on Ap ril 20, 2015. Morris was working wit h officers from a regional gang task forc e. Officer Thomas Lewis, the case

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 In light of our resolution of the appeal on this ground, we do not reach appellant’s second assignment of error.UNPUBLISHED- 2 - agent, testified that he provided Morris with money to buy coca ine, equipped her with concealed recording devices, and ultimately retrieved the cocaine that ap pellant sold to her. At trial, Morris testified that she knew appellant through a m utual acquaintance. Morris admitted to using drug s during the months when she conducted co ntrolled purchases of cocaine for the task force. She stated that she contacted appellant prior to April 20 to see if he had any drugs to sell, but she did not pressure him into the transaction. Altho ugh appellant did not t estify at trial, his counsel asserted in closing argument that Morris coerced him in to the sale so that she could “feed her habit” with income from the controlled buys.
JURY SELECTION During voir dire , the Commonwealth’s attorney asked if any of the potential jur ors knew the Commonwealth’s witnesse s. Prospective Juro r E.L. responded tha t he had known Officer Lewis for his entire life, because the offi cer’s father was Juror E.L.’s first cousin. The court asked Juror E.L.: COURT: Okay, would the fact tha t you know Tom Lewis, impair your ability to give both the Commonw ealth and the defense a fair and impartial trial today? [JUROR E.L.]: I don’t t hink so, but he is kin. The Commonwealth’s attorney (“CA” ) asked the following question s: [CA]: Do you feel like your rel ationship with [Officer Lewis’s ] father would affect your abilit y to be fair and impartial in the case today? [JUROR E.L.]: I think so. [CA]: So you don’t believe . . . that’s something that you ca n set aside? Your views as far as k nowing him, do you feel like you know Tom so well that wouldn’t be something— [JUROR E.L.]: I don’t think it would affect my judgment, no.- 3 - [CA]: So you feel like despite the family relationship, you w ould be able to listen to the evidence that’s presented with an open mind? [JUROR E.L.]: Yes, sir. [CA]: And not give any undue w eight to Tom’s testimony just because of him being family? [JUROR E.L.]: Well, I would rather not be here. The Commonwealth’s attorney and appellant’s attorney (“AA”) the n followed up: [AA]: Let’s say that [Officer Lewis’s] testimony is in direct conflict with some other perso n in a case, let’s say it’s a traffic case and he says the light is green and somebody else says the light is red, are you more likely to believe him over someone else? [JUROR E.L.]: Probably.

. . . . [CA]: If something like that was the case, would you still be able to look at any other evidence in the case and weigh that against what you know? [JUROR E.L.]: Yes.

. . . . [CA]: You can be fair and impartial and make a decision based on the evidence and not solely on testimony? [JUROR E.L.]: If it’s evidence, yes, sir.

. . . . [CA]: By knowing a law enforce ment officer, I would ask you . . . do you feel lik e that is something that you can set aside that you could weigh his testimony fairly with the others or do you feel like you’re going to give his testimony greater weight?

. . . .- 4 - [JUROR E.L.]: I mean, if it’s ju st word against word, I’m prob ably going with Tom, law enforcement. I f you’ve got evidence, then the evidence spea ks for itself. [CA]: Okay. But if it was just word agains t word, would you fe el comfortable finding somebody guilty beyond a reasonable doubt just based on that, if th at was the only evidence is from the law enforcement officer? [JUROR E.L.]: I don’t know if I could find him guilty. Following argument, the court d eclined to strike Juror E.L. for cause. Juror E.L. was excused pursuant to a peremptory strike and did not hear the case.
ANALYSIS On appeal, we “defer[] to the circuit court’s determination wh ether to exclude a prospective juror because that court was abl e to see and hear each member o f the venire respond to questions posed.” Green v. Commonwealth, 26 2 Va. 105, 115, 546 S.E.2d 44 6, 451 (2001). “[A] trial court’s denial of a motion to strike a jur or for cause ‘will not be dis turbed on appeal unless there has been a manifest error amounting to an abuse of discretion.’” Townsend v. Commonwealth , 270 Va. 325, 329-30, 619 S.E.2d 71, 73 (2005) (quoting Barrett v. Commonweal th, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001)). Appellant asserts that the court abused its discretion by fail ing to strike prospective Juror E.L. from the panel because his answers to the questions posed during voir dire did not demonstrate that he could be fair and impartial. A defendant’s right to an impartial jury is protected by the United States and Virginia Constit utions, and is r einforced by statute. U.S. Const. amend. VI; Va. Const. art. I, § 8; Co de §§ 8.01-357-58; see Rule 3A:14. A jur or must be “indifferent to the cause,” Spangler v. Ashwell, 116 Va. 99 2, 996-97, 83 S.E . 930, 931 (191 4), and have th e ability to “lay aside . . . preconceive d views and render a verdict based solel y on the law and evid ence,” Cressell v. Commonwealth, 32 Va. A pp. 744, 761, 531 S. E.2d 1, 9 (2000). “I f [a juror] has any interest in the cause, or is related to either pa rty, or has expr essed or forme d any opinion, or is sensible of any bias- 5 - or prejudice, he is excluded by t he law.” Lovos- Rivas v. Commo nwealth, 58 Va. A pp. 55, 60-61, 707 S.E.2d 27, 30 (2011) (quoting Spangler, 116 Va . at 996-97, 83 S.E. at 931). “[T]he Constitution does not req uire specific procedures or te sts for determining the impartiality of a jury.” Morva v. Commonwealth, 278 Va. 329, 3 41, 683 S.E.2d 55 3, 560 (2009). However, “[b]y ancient rule, any reasonable doubt as to a juror ’s qualifications must be resolved in favor of the accused.” Breeden v . Commonwealth, 2 17 Va. 297, 2 98, 227 S.E.2d 73 4, 735 (1976). Here, the potential juror was related to a witness for the Com monwealth, Officer Lewis. The Supreme Court has held that “a juror’s relationship to . . . a police-officer witness does not require per se dismissal of that juror from the venire . . . if the trial cou rt is satisfied that the juror can set aside considerations of the relationship and evaluate a ll the evidence fairly.” Lilly v. Commonwealth, 255 Va. 558, 570, 49 9 S.E.2d 522, 5 31 (1998). Ho wever, “[e]vidence of the requisite qualifications for imp artial service must emanate fro m the juror, unsug gested by leading questions.” Gosling v. Commonwealth, 7 Va. App. 642, 646- 47, 376 S.E.2d 5 41, 545 (1989). Juror E.L. initially indicated t hat his familial relationship with the Commonwealth’s witness would affect his ab ility to be fair and impartial. After the C ommonwealth attemp ted to rehabilitate him, Juror E.L. agreed that he w ould listen to the evidence “wi th an open mind,” but was non-responsive to the question about giving undue weight to the family member’s testimony by stating that he “would rather not be” in court. We have held t hat “[a] juror’s subsequent statement that he can give the defendant a fair and impartial trial . . . is not dispositive when preceded by positive, unequivocal testimony of bias.” Id. at 646, 346 S.E. 2d at 544. “Mere assent to a trial judge’s questions or statements . . . is not enough to rehabili tate a prospective juro r who has initially demonstrate d a prejudice or pa rtial predispositio n.” Griffin v . Commonwealth, 19 Va. App. 619, 625, 454 S.E.2d 3 63, 366 (1995).- 6 - Juror E.L. indicated at the beginning of voir dire that he would be affected by his familial relationship with the witness, and he later reiterated that “if it’s just word against word, I’m probably going with Tom [Lewis], law enforcement.” Although Ju ror E.L. responded affirmatively when asked if he could “be fair and impartial and make a decisi on based on the evidence and not solely on testimony,” w e must consider his response in the cont ext of the entire voir dire examination, not simply the ans wers that followed the rehabilit ation. See Spencer v. Commonwealth, 238 Va. 295, 308, 38 4 S.E.2d 785, 7 94 (1989). Th e Commonwealth attorney’s attempt to rehabilitate Juror E.L . was insufficient to establis h that his personal relationship with the officer would not aff ect his ability to be i mpartial and give a ppellant a fair trial. Therefore, viewing the voir dire in its entirety, we find that the court erred in refusing to st rike Juror E.L. for cause. The Commonwealth contends that any error in failing to strike Juror E.L. was harmless because Officer Lewis’s credib ility was not at is sue. However, “[a] defendant ha s a right to an impartial jury drawn from a ‘pan el [of twenty] free from except ions.’” Breeden, 217 Va. at 300, 227 S.E.2d at 736-37 (quoting Code § 8-208.19 (current version at Code § 8.01-357)). “It is prejudicial error for the trial court to force a defendant to u se the peremptory str ikes afford ed him by Code § [19.2-262] to exclude a venireman who is not free from e xception.” Id.; see Winston v. Commonwealth, 32 Va. App . 864, 869-71, 531 S .E.2d 59, 61-62 (20 00); Justus v. Commonwealth, 220 Va. 971, 975, 266 S .E.2d 87, 90 (1980); see also Gosling, 7 Va. App. at 647, 3 76 S.E.2d at 545 (“Putting the defense in a position where it is forced to exerc ise its peremptory challenges to exclude a biased juror is not ha rmless error.”). Accordingly, we reverse and remand for a new trial. Reversed and remanded.