                    COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


WILLIAM CHILDRESS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1890-98-4                JUDGE JAMES W. BENTON, JR.
                                              FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF WARREN COUNTY
                       Dennis L. Hupp, Judge

           Elwood Earl Sanders, Jr., Appellate Defender
           (Public Defender Commission, on brief), for
           appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     A jury convicted William Childress of grand larceny.   On

appeal, he contends the trial judge erred in refusing to allow a

voir dire question to a prospective juror and in failing to strike

for cause that same prospective juror.   For the reasons that

follow, we reverse his conviction and remand to the circuit court

for a new trial.

                                  I.

     During voir dire for Childress' jury trial, a prospective

juror identified himself as "a Park Ranger in law enforcement from

1981 until about 1990."    He then responded as follows:

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
          [DEFENSE COUNSEL]: Okay. Now, would that
          experience cause you to give either more or
          less weight to the testimony of any police
          officer because he has the uniform and the
          badge, or has the status of a police
          officer?

          [TRIAL JUDGE]: Let me ask the question this
          way. Would you tend to give the testimony
          of a police officer or any law enforcement
          officer more or less weight than you would
          that of another witness, simply because that
          person is a police officer?

          [PROSPECTIVE JUROR]:    I hope not, but I'm
          not sure.

     After other questions were posed to the panel of

prospective jurors, the trial judge called the prospective juror

for a more specific voir dire.    Before defense counsel began his

questions, the trial judge asked the following:

          [TRIAL JUDGE]: . . . [Y]ou had indicated
          that you may give the testimony of the law
          enforcement officer more weight than you
          would that of another witness, simply
          because that person is a law enforcement
          officer. Was that your response or you had
          some concern about that?

          [PROSPECTIVE JUROR]: Well, I have been out
          of it for seven years and I hope that I can
          be fair, but you know, I wasn't sure if I
          would, you know, lean, be prejudiced by, you
          know, an officer's testimony or not.

          [TRIAL JUDGE]: All right. Let me ask you
          this. If you are instructed that you need
          to determine the credibility of any witness
          based on a number of things, first would be
          the appearance, the behavior, the attitude
          of the witness on the witness stand; the
          interest of the witness in the outcome of
          the case; perhaps the relation of a witness
          to any party in the case; his or her
          inclination to speak truthfully or not; the


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             probability or improbability of what the
             witness is saying; and those sorts of
             things. I am not saying that you cannot
             factor in any training and experience of a
             law enforcement officer. I am not saying
             that you have to disregard that, but it has
             to be weighed with all the facts and
             circumstances of the case and those other
             things that you need to look at the
             determined credibility. Do you think that
             you can do that?

             [PROSPECTIVE JUROR]:    I think so.

     The trial judge then permitted defense counsel to ask

questions.    The following voir dire ensued:

             [DEFENSE COUNSEL]: [W]ould you count
             somebody who is an officer, simply because
             he is an officer, to be more credible than
             another witness or believable than another
             witness?

             [PROSPECTIVE JUROR]: That depends on the
             officer. I would, you know, think that I
             could be fair.

             [DEFENSE COUNSEL]: Okay, what do you think
             being fair is in a situation like this
             . . . . ?

             [PROSPECTIVE JUROR]:    See what the evidence
             is.

             [DEFENSE COUNSEL]: Okay, I take it you have
             some doubt that, some concern that you are
             going to have trouble with being fair during
             the trial?

             [PROSPECTIVE JUROR]: Well, this is the
             first time that I have been on a Jury and I
             don't know how I'm going to react.

             [DEFENSE COUNSEL]: I see. But your concern
             is that you may react sympathetically to the
             officer's side, to the officer's testimony
             because of your former service yourself?

             [PROSPECTIVE JUROR]:    Okay, I don't know.

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[DEFENSE COUNSEL]:   You do not know.

[PROSPECTIVE JUROR]:    I hope not.

DEFENSE COUNSEL]: You hope not, but you
might, is that. . . .

[PROSPECTIVE JUROR]:    Yes.

[DEFENSE COUNSEL]: And you think because
. . . Would you say there is a serious risk
that you would, looking at yourself?

[PROSPECTIVE JUROR]:    No, no.

[DEFENSE COUNSEL]: No to that question, but
there is certainly . . . You are saying is
. . . When you say a serious risk, maybe I
overstated. Is there a substantial
likelihood, would that be a better phrase?
Is that accurate?

[PROSPECTIVE JUROR]:    I don't think so.

[DEFENSE COUNSEL]: As distinct from an
officer's testimony, do you instinctively
sympathize with the prosecution side of a
criminal case because of your . . . I take
it you have been a witness before for
prosecutors, have you not?

[PROSPECTIVE JUROR]:    That's correct.

[DEFENSE COUNSEL]: Well do you sympathize
naturally with the prosecution because of
your former status as a . . .

[PROSECUTOR]: Your Honor, I am going to
object to that question. I do not think
that is appropriate.

[DEFENSE COUNSEL]: Well, I think it is. I
mean, we are exploring a possible bias and
he has expressed at least a glimpse of
doubt. I think I have a duty to my client
to explore it.

[PROSECUTOR]: Your Honor, all citizens are
in favor of law and order and we are . . .



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           [TRIAL JUDGE]: I am going to stop it here.
           I sustain the objection and note your
           [exception]. . . .

     Defense counsel then asked other questions relating to the

prospective juror's experiences as a park ranger.    At the

conclusion of the voir dire, defense counsel moved to strike the

prospective juror for cause.    The trial judge denied the motion.

Defense counsel then used a peremptory strike to remove the

prospective juror.   At the jury trial, the jury acquitted

Childress of statutory burglary and convicted him of grand

larceny.   This appeal followed.

                                   II.

     The right to a trial by an impartial jury is guaranteed

under the United States and Virginia Constitutions and by

legislative enactment.     See U.S. Const. amend. VI; Va. Const.

art. I, § 8; Code §§ 8.01-357 and 8.01-358.    "By ancient rule,

any reasonable doubt [regarding the prospective juror's ability

to give the accused a fair and impartial trial] must be resolved

in favor of the accused."     Breeden v. Commonwealth, 217 Va. 297,

298, 227 S.E.2d 734, 735 (1976); see also Gosling v.

Commonwealth, 7 Va. App. 642, 645, 376 S.E.2d 541, 544 (1989)

(citations omitted).

     "It is the duty of the trial [judge], through the legal

machinery provided for that purpose, to procure an impartial

jury to try every case."     Salina v. Commonwealth, 217 Va. 92,

93, 225 S.E.2d 199, 200 (1976).     Code § 8.01-357 provides that

                                 - 5 -
peremptory challenges are to be made from "a panel free from

exceptions."   See also Justus v. Commonwealth, 220 Va. 971, 975,

266 S.E.2d 87, 90 (1980).   In addition, "if [upon voir dire] it

shall appear to the court that the juror does not stand

indifferent in the cause, another shall be drawn or called and

placed in his stead for the trial of that case."   Code

§ 8.01-358 (emphasis added).   Thus, by statutory mandate,

Childress "has a right to an impartial jury drawn from 'a panel

[of twenty] free from exceptions.'"    Breeden, 217 Va. at 300,

227 S.E.2d at 737.   Applying this mandate, the Supreme Court has

held that "[i]t is prejudicial error for the trial [judge] to

force [an accused] to use the peremptory strikes afforded [the

accused] by Code § [8.01-357] . . . to exclude a [prospective

juror] who is not free from exception."    Id. 1

     Initially, the prospective juror clearly stated he was

unsure that he could be impartial in judging the testimony of a

police officer.   When the prospective juror was recalled for

further questioning, his rehabilitative responses were initiated

by the trial judge's leading questions.   The rule is well


     1
       This statutory right is not diminished by the United
States Supreme Court's recent holding that an accused is not
denied a right protected by Fed. Rule Crim. Proc. 24(b) if he
uses a peremptory strike to remove a juror the trial judge
should have removed for cause. See United States v.
Martinez-Salazar, ___ U.S. ___ (No. 98-1255, Jan. 19, 2000).
Unlike our statutes, that Federal Rule does not guarantee a
panel of prospective jurors that stands indifferent to the cause
and free from exception.


                               - 6 -
established, however, that "'the proof that [a prospective

juror] is impartial and fair, should come from him and not be

based on his mere assent to persuasive suggestions.'"    Breeden,

217 Va. at 300, 227 S.E.2d at 736 (citation omitted).

          "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 for impartial jury service
          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) (citations omitted).   Moreover, even after the

rehabilitative effort, the prospective juror's "responses

indicated a great degree of equivocation and created a

reasonable doubt about [his] fitness as a juror."   Brown v.

Commonwealth, 29 Va. App. 199, 208, 510 S.E.2d 751, 755 (1999).

"[I]t is firmly established that doubts as to the impartiality

of a juror must be resolved in favor of the accused."

Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 387,

349 S.E.2d 903, 906 (1986).

     We also note that when defense counsel sought to delve into

the degree to which the prospective juror's mental attitude was

formed by his former status as a law enforcement officer, the

trial judge sustained the prosecutor's objection.   In so doing,

the trial judge erred.   The question of the influence of the

prospective juror's previous employment on his sympathies was

                               - 7 -
relevant because it addressed whether he "is sensible to any

bias or prejudice."   Code § 8.01-358.   As we have previously

held, a trial judge "should not . . . accept a [prospective

juror's] bare declaration of impartiality without providing a

means to assure that the expression reflects the person's true

state of mind."   Griffin v. Commonwealth, 19 Va. App. 619, 622,

454 S.E.2d 363, 364-65 (1995).    In view of the prospective

juror's degree of equivocation, the inquiry was appropriate and

should have been permitted.

     For these reasons, we hold that the trial judge erred in

refusing to allow the inquiry and in denying Childress' motion

to strike the prospective juror for cause.   We reverse the

conviction and remand for a new trial.

                                          Reversed and remanded.




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