                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Norfolk, Virginia


ZACKARY ANTHONY CARTER, S/K/A
 ZACKERY ANTHONY CARTER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2862-97-1                JUDGE JAMES W. BENTON, JR.
                                              JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                        Frederick B. Lowe, Judge
             Melinda R. Glaubke (Thomas L. Watkins, on
             brief), for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.



      A jury convicted Zackery Anthony Carter of murder in the

second degree and use of a firearm in the murder.     Carter

contends that the trial judge erred in refusing to strike for

cause seven jurors.     Because we conclude that one of the jurors

should have been excused for cause, we reverse the convictions

and remand for a new trial.

      The right to a trial by "an impartial jury" is guaranteed by

both the United States and Virginia Constitutions.       See U.S.

Const. amends. VI and XIV; Va. Const. art. I, § 8.
          "[A prospective juror] must be able to give
          [the accused] a fair and impartial trial.
          Upon this point nothing should be left to
          inference or doubt. All the tests applied by
          the courts, all the enquiries made into the
          state of the juror's mind, are merely to
      *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
            ascertain whether [the juror] comes to the
            trial free from partiality and prejudice."


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)).

     In determining whether a juror's responses during voir dire

have indicated an impartial state of mind, we must view those

responses within the context of the entire voir dire of that

juror.    Sizemore v. Commonwealth, 11 Va. App. 208, 212, 397

S.E.2d 408, 411 (1990).   If the voir dire establishes that the

juror "holds a preconceived view that is inconsistent with an

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

persists in a misapprehension of law that will render [the juror]

incapable of abiding the court's instructions and applying the

law, [the trial judge] must . . . exclude[] [the juror] for

cause."    Id. at 211, 397 S.E.2d at 410.

     The principle is well established that "[t]o qualify as a

juror, a venireman must 'stand indifferent in the cause' and any

reasonable doubt regarding [the juror's] impartiality must be

resolved in favor of the accused."      Barker v. Commonwealth, 230

Va. 370, 374, 337 S.E.2d 729, 732-33 (1985) (citation omitted).
          "If there be a reasonable doubt whether the
          juror [is impartial and free from prejudice],
          that doubt is sufficient to insure [the
          juror's] 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, 217 Va. at 298, 227 S.E.2d at 735 (citation omitted).



                                - 2 -
     When examined on voir dire, the venireman DeWoody stated

that he was informed about the case from both television and the

newspapers.   DeWoody recognized Carter from the media exposure

and was able to recall with significant detail certain events

that occurred around the time of the killing.   DeWoody also

recalled from television reports that an earlier trial ended

because of "a mistrial," stating "I believe it was a hung jury."

When asked if he could recall whether he had formed any opinion

as to guilt or innocence, DeWoody responded "Guilt.   It is how it

was portrayed in the media.   They don't usually do both sides."

When asked if he could put out of his mind the reports he had

seen about the case, DeWoody said, "As best I can, yes."
     DeWoody also responded as follows to a series of questions:
          [COUNSEL]: Do you understand the defendant
          does not at any time throughout the entire
          trial have to put on any evidence to prove
          his innocence?

          [DEWOODY]:   Yes.

          [COUNSEL]: Would you expect the defendant to
          present some evidence on his own behalf to
          prove his innocence?

          [DEWOODY]:   Yes.

          [COUNSEL]: Again, with that idea in mind --
          and, again, this is one of those areas I just
          have to ask you -- knowing this is the law,
          how do you really feel about it is what we
          are getting at? You would expect a defendant
          to prove to you in some fashion that he did
          not commit the crime?

          [DEWOODY]:   Yes.

          [COUNSEL]: Even though you are told the law
          is he doesn't have to?



                               - 3 -
          [DEWOODY]:   Yeah.

          [COUNSEL]: Would that law be difficult for
          you to follow, if not impossible, for you to
          follow?

          [DEWOODY]: I don't think so.     Just
          preconceived notions.

          [COUNSEL]: So you would think -- if I'm
          putting words in your mouth, tell me. You
          would think if a person was innocent, they
          would prove that to you?

          [DEWOODY]:   Yes.

No further inquiries were made in this area.

     In Breeden, where a prospective juror affirmatively

indicated that she expected the defendant to prove his innocence,

the Supreme Court ruled that her response "was not so much a

symptom of her ignorance of the law as a candid reflection of the

state of her mind concerning [the defendant's] guilt."     Id. at

300, 227 S.E.2d at 736.   We believe that the same can be said of

DeWoody's responses that he expected Carter to present evidence

and to prove his innocence.    Although DeWoody acknowledged that

the law did not require Carter to put on evidence to prove his

innocence, DeWoody clearly indicated that he expected an innocent

person to put on evidence that proved that person's innocence.

     "'The opinion entertained by a juror, which disqualifies

him, is an opinion of that fixed character which repels the

presumption of innocence in a criminal case, and in whose mind

the accused stands condemned already.'"    Justus v. Commonwealth,

220 Va. 971, 976, 266 S.E.2d 87, 91 (1980) (citation omitted).



                                - 4 -
Indeed, we have ruled that when a prospective juror "harbor[s]

the . . . expectation that one accused and charged of criminal

wrongdoing will produce evidence to prove his or her innocence

. . . , unless the record affirmatively establishes that the

juror['s] expectations of the defendant were not fixed, we must

assume that the [juror was] seated while continuing to harbor the

view that the defendant must prove his [or her] innocence, a

disqualifying bias."    Sizemore, 11 Va. App. at 212, 397 S.E.2d at

410-11.
       DeWoody had specific knowledge of the case from the news

media, had formed an opinion of guilt based on that information,

and believed that Carter would have to put on some evidence to

prove his innocence.   DeWoody's opinion clearly expressed a state

of mind "that is clearly at odds with an accused's presumption of

innocence and his [or her] right not to have to produce evidence

to establish his [or her] innocence."    Id. at 212, 397 S.E.2d at

410.   When a juror has expressed such a state of mind, that juror

has raised a reasonable doubt about his or her ability to stand

impartially.   Thus, we hold that the trial judge, in concluding

that DeWoody was qualified, did not discharge the "affirmative

duty to secure an impartial jury for the parties."    Educational

Books, Inc. v. Commonwealth, 3 Va. App. 384, 390, 349 S.E.2d 903,

908 (1986).

       Because the trial judge erred by not striking DeWoody from

the jury, we need not address Carter's contention that the trial




                                - 5 -
judge erred by not striking any of the other six jurors.   For the

reasons we have stated, we reverse the convictions and remand for

a new trial.

                                        Reversed and remanded.




                              - 6 -
