COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Chafin
PUBLISHED
Argued at Lexington, Virginia
AMANDA BARBARA NICHOLE TAYLOR
OPINION BY
v. Record No. 0543-16-3 JUDGE WILLIAM G. PETTY
MARCH 14, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Marcus H. Long, Jr., Judge
Ryan D. Hamrick (Daniel D. Hamrick, P.C. on briefs), for appellant.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Amanda Barbara Nichole Taylor appeals her conviction of first-degree murder, arguing
the trial court erred by failing to strike a juror for cause. We disagree and affirm the conviction.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court.”
Porter v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008).
During group voir dire,1 the trial judge asked the group of potential jurors if any of them
had expressed or formed any opinion as to the guilt or innocence of the accused, if any were
sensible of any bias or prejudice against the parties, and if any knew any reason he or she could
not give a fair and impartial trial to the parties based solely on the law and the evidence. The
group answered “no” to each question. The judge asked the group if they understood that the
1
Of the first group of twenty-three prospective jurors, four were struck for cause. Juror
K. was part of the replacement group of prospective jurors questioned subsequently.
defendant is presumed to be innocent, if they understood that the Commonwealth must prove the
defendant is guilty beyond a reasonable doubt, and if they understood that the defendant is not
required to produce evidence. The group answered “yes” to each question.
The Commonwealth’s Attorney then asked the group a series of questions, including,
“[I]s there anyone that believes that they already know something about this case?” When Juror
K. responded that he did, the Commonwealth’s Attorney asked Juror K. if he would be willing to
put aside prior knowledge and listen to what was heard in the courtroom and base his decision
just on the evidence presented. Juror K. replied, “Yes.”
Subsequently, during individual voir dire, the following conversation took place
involving Juror K.:
[Commonwealth’s Attorney]: [Juror K.], I think you had indicated
that you thought maybe you had seen or heard something
about this case prior to coming here today; is that right?
Juror [K.]: Yes.
....
[Commonwealth’s Attorney]: Okay. And as sort of right now,
based on what you heard outside of the courtroom, do you
feel like you have an opinion one way or another whether
the defendant would be guilty or not guilty?
Juror [K.]: Probably more leaning towards guilty, I would
imagine.
[Commonwealth’s Attorney]: Okay. And –
Juror [K.]: But I, I don’t know enough to, you know –
[Commonwealth’s Attorney]: Okay. You don’t know enough to –
Juror [K.]: To really say for sure, but –
[Commonwealth’s Attorney]: And you understand that whatever
you may have heard outside of the courtroom would not be
evidence –
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Juror [K.]: Correct.
[Commonwealth’s Attorney]: -- in the case? Do you feel that your
opinion is so firmly rooted that you could not put that aside
and listen just to what was presented in the courtroom?
Juror [K.]: No, I don’t think so.
When asked if he felt he could render a fair and impartial verdict based solely on what was said
in the courtroom, Juror K. stated, “Yes.”
When questioned by the defense attorney, Juror K. admitted that he had come into the
courtroom thinking the defendant was more likely than not to be guilty “[j]ust based on what,
you know, things that I heard or read.” Defense counsel then asked Juror K., “Sitting right here,
right now, do you still feel that way?” Juror K. answered, “Probably yes, I would imagine.”
Defense counsel then moved to strike for cause. The trial judge then asked Juror K.,
[Judge]: I want to ask you one more question. Sir, before you
answered my question that any information you had would
not affect your impartiality in this case. . . . Is that still the
same?”
Juror [K.]: Yes, that’s still the same. . . . The way he phrased it it
was just like are you, would you be leaning more.
[Judge]: But you could still be impartial?
Juror [K.]: Yes, I believe so.
[Judge]: Okay. And you’re not so entrenched in your feelings
that –
Juror [K.]: No.
[Judge]: --you can’t be fair and impartial?
Juror [K.]: No.
The defense argued that even though Juror K. stated he believed he could be impartial, Juror K.
had stated that sitting there before hearing any evidence, he was leaning towards guilty. The trial
judge concluded that the “standard is whether he can be impartial and whether he can render a
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fair verdict based on the law and the evidence, and he has answered that affirmatively each time,
and so I deny your motion.”
The defense used a peremptory strike to remove the juror. The jury subsequently found
Taylor guilty of first-degree murder. Taylor now appeals the trial court’s denial of her motion to
strike Juror K. for cause.
ANALYSIS
It is well-established that “the right of an accused to trial by ‘an impartial jury’ is a
constitutional right, reinforced by legislative mandate and by the Rules of this court.” Justus v.
Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90 (1980). “Code § 8.01-357 assures a
defendant a right to an impartial jury drawn from ‘a panel [of not less than twenty] free from
exceptions.’” Id. (quoting Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 737
(1976)). “In the criminal context, it is well-settled that a trial court commits ‘prejudicial error’ if
it ‘force[s] a defendant to use peremptory strikes to exclude a venire[person] from the jury panel
if that person is not free from exception.’” Roberts v. CSX Transp., Inc., 279 Va. 111, 117, 688
S.E.2d 178, 181 (2010) (alterations in original) (quoting Townsend v. Commonwealth, 270 Va.
325, 329, 619 S.E.2d 71, 73 (2005)). Furthermore, “a defendant’s use of a peremptory strike to
remove a juror who is not free from exception [is] not harmless error because a defendant ‘has a
right to an impartial jury drawn from “a panel [of not less than twenty] free from exceptions.”’”
Id. (quoting Breeden, 217 Va. at 300, 227 S.E.2d at 736-37). “It is the duty of the trial court
through the legal machinery provided for that purpose to procure an impartial jury to try every
case.” Justus, 220 Va. at 976, 266 S.E.2d at 91 (quoting Slade v. Commonwealth, 155 Va. 1099,
1106, 156 S.E. 388, 391 (1931)).
If a prospective juror “does not stand indifferent to the cause, he is not competent. If he
has any interest in the cause, or is related to either party, or has expressed or formed any opinion,
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or is sensible of any bias or prejudice, he is excluded by the law.” Spangler v. Ashwell, 116 Va.
992, 996-97, 83 S.E. 930, 931 (1914). However, “jurors are not required to be totally ignorant of
the facts and issues involved in a case on which they sit.” Justus, 220 Va. at 977, 266 S.E.2d at
91. “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.” Id. at 976, 266 S.E.2d at 91 (quoting Slade, 155 Va. at
1106, 156 S.E. at 391); Teleguz v. Commonwealth, 273 Va. 458, 477, 643 S.E.2d 708, 720
(2007) (“A potential juror who has knowledge of the case, even if such person has formed an
opinion about the case, is entitled to sit on the jury if that opinion can be set aside.” (quoting
Thomas v. Commonwealth, 263 Va. 216, 231, 559 S.E.2d 652, 660 (2002))).
In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression
or opinion as to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in
court.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Potential jurors may be confused regarding what
“impartiality” requires in relation to feelings and opinions gained prior to voir dire. “With
random jury selection this will often occur and presents a situation with which trial judges will
have to deal as intelligently and patiently as possible.” Justus, 220 Va. at 977, 266 S.E.2d at 91
(“It will obviously require a greater effort on the part of trial courts to rehabilitate prospective
jurors who become confused during their voir dire examination.”).
“Juror impartiality is a question of fact.” Huguely v. Commonwealth, 63 Va. App. 92,
121, 754 S.E.2d 557, 571 (2014) (quoting Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61,
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707 S.E.2d 27, 30 (2011)). “Whether a prospective juror can lay aside a preconceived opinion
and render a verdict solely on the evidence is a mixed question of law and fact. Resolution of the
question rests within the sound discretion of the trial court.” Calhoun v. Commonwealth, 226
Va. 256, 258, 307 S.E.2d 896, 898 (1983). “[T]he trial court must weigh the meaning of the
answers given in light of the phrasing of the questions posed, the inflections, tone, and tenor of
the dialogue, and the general demeanor of the prospective juror.” Smith v. Commonwealth, 219
Va. 455, 464-65, 248 S.E.2d 135, 141 (1978).
[B]ecause the trial judge has the opportunity, which we lack, to
observe and evaluate the apparent sincerity, conscientiousness,
intelligence, and demeanor of prospective jurors first hand, the trial
court’s exercise of judicial discretion in deciding challenges for
cause will be not disturbed on appeal, unless manifest error
appears in the record.
Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004) (quoting Pope v.
Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987)). A manifest error occurs
when the record shows that a prospective juror cannot or will not lay aside his or her
preconceived opinion. See Briley v. Commonwealth, 222 Va. 180, 187, 279 S.E.2d 151, 155
(1981).
“These well established principles have been applied by [appellate courts in Virginia]
strictly and consistently” in reviewing whether a trial court has abused its discretion in denying a
defense motion to strike a juror for cause. Justus, 220 Va. at 976, 266 S.E.2d at 91.
In Briley v. Commonwealth, the Supreme Court found no error in the trial court’s denial
of a motion to strike a juror for cause. 222 Va. at 187, 279 S.E.2d at 155. In Briley, the
defendant argued that two prospective jurors should have been struck for cause because they held
beliefs, before any evidence had been presented, that the defendant was likely guilty. Id. at 182,
279 S.E.2d at 152. In response to the question of whether he believed the defendant was guilty,
one prospective juror said, “I really couldn’t . . . say my opinion but right now my opinion is that
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he is guilty . . . but I can’t really say until I hear the case.” Id. (alterations in original). A second
prospective juror said that he didn’t think it likely that the defendant could have “gotten to this
point [through the justice system] and not be guilty of these crimes.” Id. Nevertheless, the court
denied the motion to strike the jurors based on the complete voir dire of each juror. Id. at 187,
279 S.E.2d at 155. The Supreme Court affirmed the trial court’s decision. It reasoned that while
the two prospective jurors had “candidly conceded that news stories and the grand jury’s
indictment had led them to think the defendant was guilty, they repeatedly resisted the vigorous
efforts of defense counsel to show that they did not understand or accept the presumption of
innocence or the rules governing burden of proof.” Id. “Moreover, with emphatic language,
both declared that they had formed ‘no absolute opinion.’” Id. The Court noted that the
“spectrum of opinion can range, by infinite shades and degrees, from a casual impression to a
fixed and abiding conviction.” Id. at 185, 279 S.E.2d at 154. The trial court is tasked with
deciding whether an opinion formed by a prospective juror is “constitutionally impartial,” and
the “finding of the trial court upon that issue ought not to be set aside by a reviewing court,
unless the error is manifest.” Id. (quoting Reynolds v. United States, 98 U.S. 145, 156 (1878)).
Accordingly, the Supreme Court found no manifest error and affirmed. Id. at 187, 279 S.E.2d at
155.
Similarly, in Calhoun v. Commonwealth, the Supreme Court affirmed a trial court’s
denial of a motion to strike a juror for cause. 226 Va. at 259, 307 S.E.2d at 898. The Court
noted that one juror had “stated emphatically, at least five times, that she could ignore what she
had read and decide the case solely on the evidence” and that the other juror stated unequivocally
that she “could disregard any prior knowledge and render a verdict solely on the evidence and
the court’s instructions.” Id. at 259-60, 307 S.E.2d at 898. The Court reasoned that if a
prospective juror “remained fixed in her opinion that what she heard on television was what had
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happened . . . , quite obviously she could not stand indifferent in the cause.” Id.; see also Juniper
v. Commonwealth, 271 Va. 362, 404, 626 S.E.2d 383, 410 (2006) (finding the trial court did not
err in refusing to strike a potential juror where the “voir dire reflect[ed] that [the juror] would not
rely on any information she had read or heard about the case and that she had not formed an
opinion regarding [the defendant’s] guilt or innocence”); Jackson, 267 Va. at 194, 590 S.E.2d at
529 (finding no manifest error in the circuit court’s decision refusing to strike a juror for cause
where the voir dire of the prospective juror “demonstrated that the juror understood both the
Commonwealth’s burden of proof and the fact that the defendant did not have to present any
evidence”).
The Supreme Court reached the same result in Spencer v. Commonwealth, 240 Va. 78,
94, 393 S.E.2d 609, 618-19 (1990). There, the Supreme Court affirmed a trial court’s denial of
the defendant’s motion to strike for cause. The Court noted,
The record gives every indication that the trial judge gave close
and conscientious attention to the demeanor of the veniremen. The
court’s comments with respect to [the prospective juror] are
particularly illustrative of the reason for the great deference which
an appellate court must accord to the decision of a trial judge in
deciding a challenge for cause. The trial judge sees and hears the
prospective juror, and is in a position to weigh the “inflections,
tone, and tenor of the dialogue, and the general demeanor of the
prospective juror.” LeVasseur v. Commonwealth, 225 Va. 564,
584, 304 S.E.2d 644, 655 (1983).
Spencer, 240 Va. at 94, 393 S.E.2d at 618-19.
The standard to be applied by the trial court in determining
whether to retain a venireman on the jury panel is whether his
answers during voir dire examination indicate to the court
something that “would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.”
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George v. Commonwealth, 242 Va. 264, 276, 411 S.E.2d 12, 19 (1991) (quoting Eaton v.
Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990)) (concluding that a juror was not
automatically disqualified because his son had served as the victim’s pall bearer).
In contrast, the Supreme Court reversed a trial court’s denial of a motion to strike a juror
for cause in Green v. Commonwealth, 262 Va. 105, 116, 546 S.E.2d 446, 451 (2001). In Green,
a prospective juror stated that she “suppose[d]” the defendant was guilty based on what she had
read in the paper. Id. at 112, 546 S.E.2d at 449. In response to the trial court’s questioning, the
juror acknowledged that the defendant was presumed innocent and that he did not have to
produce any evidence. Id. at 114, 546 S.E.2d at 450. Later, while being questioned by defense
counsel, the juror stated that the defendant “[would] have to prove him[self] innocent.” Id. at
113, 546 S.E.2d at 450. In response to the court’s subsequent question, the juror affirmed that
she had “a feeling that [the defendant was] guilty.” Id. at 114, 546 S.E.2d at 450. Nevertheless,
upon the juror’s affirmation that she could “keep an open mind and wait for it to be proven” the
trial court denied the motion to strike for cause. Id. The Supreme Court reversed. It noted that
even after the juror was reminded that the defendant was presumed innocent, she stated she
would find the defendant guilty if he did not present evidence to prove his innocence. Id. at 117,
546 S.E.2d at 452. The Court reasoned that the juror’s equivocation regarding her feeling that
the defendant was guilty indicated that she did not “stand indifferent in the cause,” and the
“juror’s ability to give a defendant a fair and impartial trial must not be left to inference or
doubt.” Id. at 117-18, 546 S.E.2d at 452; see also Justus, 220 Va. at 977, 266 S.E.2d at 91
(reversing trial court’s denial of a motion to strike juror for cause where potential juror’s
subsequent statement that “she could give the defendant and the Commonwealth a fair and
impartial trial [was] not sufficient to overcome her positive and unequivocal testimony that she
thought [the defendant] was guilty from what she had heard and read”).
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Here, Juror K.’s “preconceived notion as to the guilt or innocence” of Taylor was not
sufficient to disqualify Juror K. if he could “lay aside his impression or opinion and render a
verdict based on the evidence presented in court.” See Irvin, 366 U.S. at 722-23. The issue
before us is whether the trial court erred when it found that Juror K. could lay aside his
preconceived opinion and render a verdict based solely on the evidence produced at trial. We
conclude the trial court did not err.
Here, when the Commonwealth’s Attorney asked Juror K. during individual voir dire if
he held an opinion based on his prior knowledge, Juror K. stated that he was “[p]robably more
leaning towards guilty, I would imagine.” However, when the Commonwealth’s Attorney asked
Juror K. if his opinion was “so firmly rooted that [he] could not put that aside and listen just to
what was presented in the courtroom,” Juror K. replied, “No, I don’t think so.” Further, the
Commonwealth’s Attorney asked specifically if Juror K. was “prepared to be able to pay just
[sic] careful attention to what evidence is presented in the courtroom and to consider just that
evidence?” Juror K. answered, “Yes.” The Commonwealth’s Attorney asked, “And do you feel
that you could render a fair and impartial verdict based solely on what’s said in the courtroom
and not based at all on what you may have previously heard?” Juror K. answered, “Yes.”
At that point, Juror K. had unequivocally committed himself to set aside any prior
opinion and base his decision regarding Taylor’s guilt exclusively on the evidence provided.
The defense counsel then reminded Juror K. that he had previously said that he believed Taylor
was more likely than not to be guilty. Juror K. conceded that he had expressed that opinion
“[j]ust based on what, you know, things that I heard or read.” When asked if he still felt that
way, Juror K. replied, “Probably yes, I would imagine.” The defense counsel then quickly
moved to dismiss Juror K. for cause.
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In clarifying Juror K.’s position, the trial judge reminded Juror K. that he previously
agreed “that any information [he] had would not affect [his] impartiality” and asked him if he
still felt the same way. Juror K. responded unequivocally, “Yes that’s still the same.” He further
explained that his response, “Probably yes, I would imagine,” was a result of the way defense
counsel had phrased the question. Juror K. then reaffirmed that he could be impartial.
Impartiality includes an unequivocal commitment to set aside preconceived opinions and view
the defendant as innocent until proven guilty beyond a reasonable doubt. The trial judge had the
ability to “weigh the meaning of [Juror K.’s] answers given in light of the phrasing of the
questions posed [by defense counsel], the inflections, tone, and tenor of the dialogue, and the
general demeanor of [Juror K.].”2 Smith, 219 Va. at 464-65, 248 S.E.2d at 141. He concluded
that Juror K. was able to be impartial by laying aside any preconceived notions; finding no
manifest error, we will not reverse that decision.
CONCLUSION
Juror K.’s preconceived notion as to the guilt or innocence of Taylor, without more, was
not enough to disqualify Juror K. See Irvin, 366 U.S. at 722-23. The determination of whether
Juror K. was impartial was resolved by the trial court by “weigh[ing] the meaning of the answers
given in light of the phrasing of the questions posed, the inflections, tone, and tenor of the
dialogue, and the general demeanor of the prospective juror.” See Smith, 219 Va. at 464-65, 248
S.E.2d at 141. “The record gives every indication that the trial judge gave close and
conscientious attention to the demeanor of [Juror K.].” See Spencer, 240 Va. at 94, 393 S.E.2d
2
For example, it is not possible from the cold transcript, which is devoid of the emphasis
given to each word, to discern whether Juror K.’s statements such as “I believe so,” “No, I don’t
believe so,” and “Probably yes, I would imagine” were made as declarative assertions or as
equivocal statements. The trial judge observed the inflection and tone of Juror K.’s answers in
addition to the words spoken. Where the record does not indicate inflection and tone, we view
the statements in the light most favorable to the Commonwealth. See Porter, 276 Va. at 215-16,
661 S.E.2d at 419.
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at 618-19. Juror K.’s unequivocal statements indicated he would set aside his preconceived
opinion and decide the case based solely on the evidence produced at trial. It was not manifest
error for the trial court to conclude that Juror K. was impartial. Accordingly, we affirm Taylor’s
conviction.
Affirmed.
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