Cecilio DeLeon v. Commonwealth of Virginia

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
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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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