                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


CECILIO DeLEON
                                                 OPINION BY
v.   Record No. 1595-01-4                  JUDGE WILLIAM H. HODGES
                                                JUNE 25, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                         Joanne F. Alper, Judge

           Robert W. Gookin for appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     Cecilio DeLeon, appellant, was convicted of rape.      He

contends on appeal that the trial court abused its discretion in

denying his motion to strike prospective juror Pamela Stout for

cause.   For the reasons that follow, we reverse the conviction and

remand for a new trial.

                              BACKGROUND

     During voir dire, the prosecutor asked the prospective jurors

whether any of them had been the victim of rape or sexual assault

or had a close friend or family member who had been the victim of

such an offense.    Stout replied that her sister-in-law had been

raped in another state, but that she did not know the details of

the offense.    Stout indicated the case was not prosecuted.     Stout

then responded as follows to a series of questions:
     [PROSECUTOR]: Knowing about your
sister-in-law, does that affect your ability
to listen to the evidence today knowing that
that happened to her?

        [STOUT]:   I hope not.

        [DEFENSE COUNSEL]:    But you are not
sure.

        [STOUT]:   I would say no.   I'm not
sure.

     [THE COURT]: All right. But you will
try to at least keep an open mind. You just
don't know. How long ago was this?

        [STOUT]:   Two years.

     [DEFENSE COUNSEL]: Do you feel like
crying? It makes you upset.

        [STOUT]:   It does, yes.

     [PROSECUTOR]: Does it? What happened
to your sister-in-law, does that in any
sense make you feel that just because the
defendant has been charged that means he's
guilty of this?

        [STOUT]:   No.

     [PROSECUTOR]: Does it make you feel in
any way that you are biased against him?

        [STOUT]:   No.

     [PROSECUTOR]: Do you feel that you
could listen to the victim's testimony
fairly and any defense evidence, if any is
provided you, fairly?

        [STOUT]:   Yes.

     [DEFENSE COUNSEL]: Does it make you
feel that what a victim has to say is more
believable because she says that she's a
victim?

        [STOUT]:   No.


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               [DEFENSE COUNSEL]: Do you identify
          with her because of what happened to your
          sister-in-law?

                 [STOUT]:   I can, yes.

               [DEFENSE COUNSEL]:     You could identify
          with her?

     No further inquires were made about the rape of Stout's

sister-in-law or about Stout's ability to sit impartially in light

of that event.

     Appellant moved to strike Stout for cause, but the trial

court denied the motion, finding that Stout stated she would

listen to the evidence.     The trial court further stated, "I

think at this point she has not shown the kind of mind that

would be a basis for cause and dismissal, although--at this

point I'm not going to grant the strike for cause."    Appellant

struck the juror using a peremptory strike.

                               ANALYSIS

     In Virginia, a defendant in a criminal case "is entitled to a

panel of jurors free from exception before exercising peremptory

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

S.E.2d 1, 6 (2000).   "[A]ny reasonable doubt as to a juror's

qualifications must be resolved in favor of the accused."   Breeden

v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).

     "On appellate review, we give deference to the trial court's

determination whether to exclude a prospective juror, because the

trial court was able to see and hear each member of the venire



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respond to the questions posed."   Lovitt v. Commonwealth, 260 Va.

497, 510, 537 S.E.2d 866, 875 (2000), cert. denied, 122 S. Ct. 41

(2001).   "Thus, we 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, 32 Va. App. at 755, 531 S.E.2d at 6.   "In

conducting our review, we consider the juror's entire voir dire,

not merely isolated statements."   Lovitt, 260 Va. at 510, 537

S.E.2d at 875.

     "'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.'"   David

v. Commonwealth, 26 Va. App. 77, 81, 493 S.E.2d 379, 381 (1997)

(citation omitted).

     Upon reviewing the entire voir dire, we find that Stout's

responses during voir dire failed to establish that she could sit

as an impartial juror during the case.   During voir dire, she

became upset when discussing the rape of her sister-in-law.

Furthermore, her equivocal responses to questions during voir dire

clearly demonstrated that she was unsure of whether the rape of

her sister-in-law would affect her ability to listen to the

evidence in the case.   In addition, the record shows that after

                               - 4 -
Stout declared that she was "not sure" whether the incident would

affect her ability to listen to the evidence, "the evidence used

to rehabilitate her did not come from her but was based on her

mere assent to leading questions."     Id.   Stout also agreed that

she could "identify" with the victim because of the rape of her

sister-in-law.   Therefore, Stout's responses during voir dire

created a reasonable doubt as to her qualification to serve as a

fair and impartial juror.

     Because such a doubt must be resolved in favor of the

accused, we hold that the trial court's refusal to grant

appellant's motion to strike Stout for cause constituted manifest

error.   Furthermore, because this violation is not harmless, see

Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90

(1980), we reverse the conviction and remand for a new trial if

the Commonwealth be so advised.

                                             Reversed and remanded.




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