                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


RICHARD RUSH MURRAY, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0874-00-4                 JUDGE NELSON T. OVERTON
                                               APRIL 10, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Henry E. Hudson, Judge

           David M. Hall (Phillips, Beckwith, Hall &
           Chase, on briefs), for appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Richard Rush Murray, Jr. (appellant) was convicted of robbery

and use of a firearm in the commission of robbery.     On appeal, he

contends the trial court erred by denying his motion to dismiss

juror Ray for cause.   For the reasons that follow, we reverse the

convictions and remand for a new trial.

                             BACKGROUND

     During voir dire, appellant's attorney asked if any member

of the venire had been a victim of a crime.    The following

exchange took place:



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
          JUROR RAY: I was held up by gunpoint about
          ten years ago when I lived in Washington,
          D.C. walking home from work. And I could
          find myself having difficulty if – is it Ms.
          Gomez; is that her name.

          [DEFENSE COUNSEL]:   Uh-huh.

          JUROR RAY: If she recounted and had any
          kind of similar – I don't know the situation
          --

          [DEFENSE COUNSEL]:   Right, I understand
          that.

          JUROR RAY: I think it was at a store. I
          don't even – I'm not sure – but mine was
          outside and, yes, very upsetting.

          [DEFENSE COUNSEL]: So you think that would
          affect your ability to be impartial?

          JUROR RAY: It could if her – if her recant
          [sic] is similar in any way, yes.

          [DEFENSE COUNSEL]:   And you think that would
          affect your --

          JUROR RAY: Very up – I'm upset right now
          thinking about it.

          [DEFENSE COUNSEL]: I can tell. I'm sorry.
          And I don't mean – you know, that is
          certainly not the purpose here.

          JUROR RAY: And the person that did this to
          me was never found so --

          [DEFENSE COUNSEL]:   That also might --

          JUROR RAY: -- and so I think – I think it's
          very important to bring such cases – any
          case to trial. And I would be very, you
          know, pleased to be on a jury for a criminal
          trial but I think this crime would be – I
          could be somewhat biased.

     Defense counsel approached the bench and stated, "I didn't

really go into great detail because I can tell she's upset but I


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do think it's going to affect – I mean, I would make a motion to

strike her."

     The prosecutor and trial court questioned Ray in an attempt

to rehabilitate her.   When Ray indicated that she "may have an

inclination to believe the" victim if the facts of the crime

appear similar, the following colloquy took place:

          THE COURT: Well, there's no question –- I
          don't think there is going to be a lot of
          question that she –- that a robbery
          occurred.

          JUROR RAY:   Oh, it's whether or not this --

          [THE PROSECUTOR]:   I think it's a whodunit.

          JUROR RAY:   -- is the person?

          [THE PROSECUTOR]:   Yes.

          JUROR RAY: Well, then    I guess – then I
          guess I would leave it   up, of course, to the
          Court and the evidence   that is presented to
          make sure that this is   the right person.

     The trial court's final question to Ray was whether she

felt her experience would affect her "judgment in this case so

that [she] couldn't be fair either to the prosecutor or to the

Defendant."

     Ray responded, "I would think, yes, I could.    I would

think, yes, I could.   I am just very – I just wanted to be . . .

you know, very honest with you."

     The trial court denied the motion.




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                Preservation of the Issue on Appeal

     After the trial court refused to strike Ray for cause, the

parties exercised peremptory strikes on the panel of twenty

potential jurors.   Ray was one of eight members of the venire

panel that was peremptorily struck and excused.   The remaining

twelve jurors were then sworn, after which the trial court asked

counsel if the panel was acceptable.    Although appellant's

attorney indicated "for the record" that "this panel is

acceptable," she advised the trial court that she was

"preserving our exception that we noted earlier."

     Relying on Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d

785 (1989), and Buchanan v. Commonwealth, 238 Va. 389, 384

S.E.2d 757 (1989), the Commonwealth contends appellant failed to

preserve the issue for appellate review.   We disagree.

     An alleged error is sufficiently preserved for

consideration on appeal if "at the time the ruling or order of

the court is made or sought, [a party] makes known to the court

the action which he desires the court to take or his objections

to the action of the court and his grounds therefor."     Code

§ 8.01-384.   "The primary purpose of requiring timely and

specific objections is to afford the trial judge a fair

opportunity to rule intelligently on the issues presented, thus

avoiding unnecessary appeals and reversals."    Rodriguez v.

Commonwealth, 18 Va. App. 277, 284, 443 S.E.2d 419, 424 (1994)

(en banc) (citation omitted).

                                - 4 -
     In Spencer, the defendant only objected to questions or

limitations on questions asked of individual jurors during voir

dire.   238 Va. at 306, 384 S.E.2d at 792-93.   Spencer's

attorney, however, failed to object to the jurors being sworn

and seated.    Id. at 306, 384 S.E.2d at 793.

     In Buchanan, the Supreme Court refused to address the

merits of Buchanan's challenge to "the trial court's seating of

prospective jurors Garrett and Barton" because Buchanan

"expressly accepted both jurors."   238 Va. at 404, 384 S.E.2d at

766 (applying Rule 5:25).

     Here, appellant's attorney challenged Ray for cause during

voir dire.    Moreover, the fact that appellant accepted the panel

that did not include juror Ray did not negate the earlier

challenge or waive the objection.   Furthermore, appellant

renewed the objection when accepting the panel without Ray.

     Because appellant timely moved to strike Ray for cause and

afforded the trial court a fair opportunity to rule

intelligently on the issue, and because appellant renewed that

motion even though Ray had been peremptorily stricken from the

panel, appellant did not waive his objection to seating Ray so

as to bar appellate review.

                              Analysis

     Code §§ 8.01-357 and 8.01-358 entitle an accused to a panel

of jurors free from exception before any party exercises

peremptory challenges.    See Brown v. Commonwealth, 33 Va. App.

                                - 5 -
296, 305-06 & n.2, 533 S.E.2d 4, 8 & n.2 (2000) (explaining that

error in failing to strike juror for cause is not harmless)

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

90 (1980)).

     "[W]e 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 v. Commonwealth, 32 Va. App. 744, 755, 531

S.E.2d 1, 6 (2000).    "In determining whether a prospective juror

should have been excluded for cause, we review the entire voir

dire, rather than a single question and answer."     Barnabei v.

Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996)

(citation omitted).    "Every prospective juror must stand

indifferent to the cause, 'and any reasonable doubt as to a

juror's qualifications must be resolved in favor of the

accused.'"    Clements v. Commonwealth, 21 Va. App. 386, 392, 464

S.E.2d 534, 537 (1995) (quoting Breeden v. Commonwealth, 217 Va.

297, 298, 227 S.E.2d 734, 735 (1976)).    "When a juror has

expressed a disqualifying view during voir dire, the

clarification or absence of disqualification must emanate from

the juror in order to establish that the juror is impartial and

is free of bias."     Sizemore v. Commonwealth, 11 Va. App. 208,

212, 397 S.E.2d 408, 410 (1990).



                                 - 6 -
     Applying these principles to our review of the record, we

find that the questions posed to juror Ray by the trial court and

the prosecutor and her responses during the voir dire examination

failed to demonstrate that she could sit as an impartial and

unbiased juror in the case.

      Ray became upset when she recalled being the victim of an

armed robbery, the same crime for which appellant was on trial.

She maintained throughout the voir dire that if there were any

similarities between the instant robbery and her robbery, she

would be inclined to believe the victim.   Despite the trial

court's attempt to assuage Ray's potential anxiety by explaining

that her sole role was to determine the robber's identity rather

than whether a robbery occurred, we find such a statement

improper and ineffective to determine impartiality.   The

victim's credibility remained a substantial factor in the case

because she positively identified appellant as the robber.     Even

after obtaining some assurance from Ray that she "guess[ed]

[she] would leave it up . . . to the Court," Ray equivocated in

her final response by stating that she "would think, yes, [she]

could" be impartial.

     In summary, because Ray's responses to voir dire

questioning were ambiguous and equivocal, and because the

questions and comments used to rehabilitate her came not from

Ray, but from the prosecutor and the trial court, we hold that

the trial court erred in denying appellant's motion to dismiss

                              - 7 -
Ray for cause.   Because this violation is not harmless, see

Justus, 220 Va. at 975, 266 S.E.2d at 90, we reverse and remand

for a new trial if the Commonwealth be so advised.

                                            Reversed and remanded.




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