                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


CONSTANCE MARTIN DILLARD
                                           MEMORANDUM OPINION * BY
v.         Record No. 1800-94-3             JUDGE LARRY G. ELDER
                                               APRIL 23, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

           Barbara Hudson for appellant.

           John H. McLees, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Constance Martin Dillard (appellant) appeals her conviction

for grand larceny in violation of Code § 18.2-95.     Appellant

contends that the trial court denied her right to a fair and

impartial jury when it failed to disqualify a venireman for

cause.   Because we agree with appellant, we reverse her

conviction.

     On August 22, 1994, jury selection began in appellant's

trial in the Circuit Court of the City of Danville.     The trial

court informed the panel of twenty jurors that appellant was

charged with stealing merchandise totalling $842.25 from a

department store in Danville.

     During questioning from the trial court, a venireman
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
admitted that he had read information in the newspaper about the

incident, but stated that he "wouldn't think" that this would

affect his impartiality.   During questioning from appellant's

counsel, the venireman stated that he did not believe "in

somebody stealing from somebody because the taxpayers and the

consumers are the ones that gotta pay for it.   That's the way I

feel about it."

     Appellant's counsel thereafter inquired whether the jurors

would be able to return a verdict of not guilty by reason of

insanity.   The venireman stated that he did not believe that he

could return a verdict of not guilty by reason of insanity.      In

response to leading questioning from the Commonwealth, the

venireman indicated that he harbored reservations before hearing

the evidence in the case but could probably deliberate with the

other jurors in order to reach a verdict.   At the conclusion of

voir dire, appellant challenged the venireman for cause,

asserting that his answers showed that he had "already made up

his mind on this trial."   The trial court overruled the

challenge, stating, "I think he has indicated that he can listen

to the evidence and base his verdict on the evidence."     The

venireman was peremptorily struck from the panel and was not

seated as a juror.
     The jury returned a guilty verdict, and the trial court

sentenced appellant to eighteen months in the penitentiary.

Appellant now appeals to this Court.




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       "Whether a juror is capable of laying aside any preconceived

opinion and rendering a verdict based solely on the evidence is a

matter submitted to the sound discretion of the trial court."

Boblett v. Commonwealth, 10 Va. App. 640, 647, 396 S.E.2d 131,

135 (1990).   "The decision of the trial court whether to seat a

prospective juror is entitled to great weight and will not be

disturbed on appeal unless there is manifest error."      Id.   "The

exercise of that discretion, however, is not without limits."
Wilson v. Commonwealth, 2 Va. App. 134, 137, 342 S.E.2d 65, 67

(1986).

       "A juror who holds a preconceived view that is inconsistent

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

who persists in a misapprehension of the law that will render him

incapable of abiding the court's instructions and applying the

law, must be excluded for cause."      Sizemore v. Commonwealth, 11

Va. App. 208, 211, 397 S.E.2d 408, 410 (1990); see Griffin v.

Commonwealth, 19 Va. App. 619, 621-22, 454 S.E.2d 363, 364-65

(1995).   "The proof that a juror is impartial must emanate from

the juror himself."    Boblett, 10 Va. App. at 648, 396 S.E.2d at

135.

       In examining the overall context of the venireman's

responses, we find that he expressed a preconceived opinion that

he could not return a verdict of not guilty by reason of

insanity.   After the venireman's initial response, the trial

court allowed the Commonwealth's Attorney to attempt to question




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him.   The Commonwealth's Attorney repeatedly asked leading

questions of the venireman, such as:   (1) "Can't you listen to

the evidence from the witness stand and make your decision after

hearing the evidence, or have you prejudged it?"; (2) "[D]on't

you think you could listen to the evidence in this case and make

your decision only after you've heard the evidence from the

witness stand?"; and (3) "You are saying that you could listen to

the evidence and make your decision after hearing the evidence?"
       Not only did the Commonwealth pose leading questions, but

the venireman never unequivocally responded to those questions.

For example, in response to the Commonwealth's first line of

questions on the topic of impartiality, the venireman stated that

while he could listen to the evidence and make his decision after

hearing the evidence, he still had a reservation in his mind.      In

a final attempt to rehabilitate the venireman, the Commonwealth

asked the leading question, "You are saying that you could listen

to the evidence and make your decision after hearing the

evidence," to which the venireman merely replied, "Yeah, I'm

going to say that."

       As in Griffin, neither the trial judge nor the Commonwealth

asked questions that enabled the venireman "to explain

independently or in his own words" that his preconceived views on

the insanity defense "would not interfere with his ability to

apply the law to the case as given to him by the judge."

Griffin, 19 Va. App. at 625, 454 S.E.2d at 366.    In contrast to




                                 -4-
the venireman in Boblett, the venireman did not "express[] in his

own words an ability to set that preconception aside and follow

the instructions of the court, notwithstanding his opinion of the

law."     Boblett, 10 Va. App. at 649, 396 S.E.2d at 136 (emphasis

added).

        "Generally, we would be required to give deference to the

trial judge, who had the opportunity to hear and observe [the

venireperson], in deciding the significance and meaning of his

response[s]."     Griffin, 19 Va. App. at 625, 454 S.E.2d at 366.

However, "[m]erely giving expected answers to leading questions

does not rehabilitate a prospective juror."     Id.   See Bennett v.

Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988), cert. denied,

490 U.S. 1028 (1989); McGill v. Commonwealth, 10 Va. App. 237,

391 S.E.2d 597 (1990).

        The Commonwealth contends on appeal that even assuming that

the trial court erred, its error was harmless because the

venireman was not chosen as a member of the final jury panel.

The Commonwealth's argument lacks merit in light of this Court's

holding in DeHart v. Commonwealth, 20 Va. App. 213, 456 S.E.2d
133 (1995).

        Because manifest error exits in the trial court's ruling, we

reverse appellant's conviction and remand the case for further

proceedings if the Commonwealth be so advised.

                                              Reversed and remanded.




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