David v. Commonwealth, 493 S.E.2d 379 (Va. Ct. App. 1997). · Go Syfert
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David v. Commonwealth, 493 S.E.2d 379 (Va. Ct. App. 1997). Cases Citing This Book View Copy Cite
“trial court's refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror.”
59 citation events (49 in the last 25 years) across 3 distinct courts.
Strongest positive: Dominique Tajuan Waller v. Commonwealth of Virginia (vactapp, 2015-03-10)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 26 distinct citers.
examined Cited as authority (verbatim quote) Dominique Tajuan Waller v. Commonwealth of Virginia (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2015 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
trial court's refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror.
discussed Cited as authority (rule) Cruz Montalvo Sanchez v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
See, e.g., Taylor v. Commonwealth, 67 Va. App. 448, 454 (2017) (detailing how a defendant’s use of peremptory strike does not make the error of failing to strike for cause harmless); DeHart v. Commonwealth, 20 Va. App. 213, 215 (1995) (finding that the error of failing to strike a juror for cause is not harmless even if the Commonwealth ultimately struck her); David v. Commonwealth, 26 Va. App. 77, 80-81 (1997) (finding that the use of a peremptory strike did not make the error harmless but also finding that, if the juror would have been rehabilitated from the declared bias, then the circuit…
discussed Cited as authority (rule) Antonio Lee Sutton v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
Because “an empaneled juror is presumed impartial[,]” “a mistrial will not be declared automatically upon a showing of juror misconduct[;] . . . [instead] the trial judge, in the exercise of a sound discretion, must determine whether remarks made about the case by a juror to persons not jurors demonstrate that prejudice might result.” Id. (quoting Haddad v. Commonwealth, 229 Va. 325, 330 (1985)).11 As such, the party moving for a mistrial on the ground of juror misconduct bears the burden of proving that the misconduct “probably resulted in prejudice.” 10 And this Court “give[s] …
discussed Cited as authority (rule) Thomas Edward Clark v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
That said, “juror impartiality is a factual determination, disturbed on appeal only for ‘manifest error.’” Brooks v. Commonwealth, 41 Va. App. 454, 460 (2003) (quoting David v. Commonwealth, 26 Va. App. 77, 80 (1997)).
discussed Cited as authority (rule) Montel Jaleek Wilson v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Wilson concludes that Juror 52 was biased against him and the trial court was required to order a new trial. “[J]uror impartiality [is] a factual determination, disturbed on appeal only for ‘manifest error.’” Nelson v. Commonwealth, 41 Va. App. 716, 731-32 (2003) (second alteration in original) (quoting David v. Commonwealth, 26 Va. App. 77, 81 (1997)), aff’d, 268 Va. 665 (2004).
discussed Cited as authority (rule) James Edward Fultz, IV v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2023 · confidence medium
David v. Commonwealth, 26 Va. App. 77, 81 (1997).
discussed Cited as authority (rule) Mekyle Purnell, s/k/a Mekyle Dominique Powell v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Purnell argues that the circuit court erred in denying his motion to strike A.S. for cause because there was “a reasonable doubt as to her qualifications to serve as a fair and impartial juror.”1 Evidence of a juror’s impartiality “must emanate from the juror herself, unsuggested by leading questions posed to her.” David v. Commonwealth, 26 Va. App. 77, 81 (1997) (quoting Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 389 (1986)).
discussed Cited as authority (rule) Dilshad Sabri Dosky v. Commonwealth of Virginia
Va. Ct. App. · 2019 · confidence medium
“When the issue arises from a mid-trial challenge to a juror’s impartiality, we ‘will - 24 - reverse the trial court’s decision only for an abuse of discretion,’ applying the same standard of review appropriate to appellate consideration of the trial court’s decision to seat a venireperson.” Brooks v. Commonwealth, 41 Va. App. 454, 459 (2003) (quoting David v. Commonwealth, 26 Va. App. 77, 80 (1997)); see also Near v. Commonwealth, 202 Va. 20, 32 (1960) (“It is settled that a motion for a new trial on the ground of misconduct of a juror is addressed to the sound discretion of t…
cited Cited as authority (rule) Wayne Gibson Weis, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2016 · confidence medium
“Whether a juror is impartial is a pure question of historical fact.” David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997).
examined Cited as authority (rule) Travis Deon Stanley v. Commonwealth of Virginia (3×) also: Cited "see"
Va. Ct. App. · 2014 · confidence medium
Cf. Haddad, 229 Va. at 330 , 329 S.E.2d at 20 (trial court must determine, using sound discretion, whether juror’s remarks demonstrate prejudice might result); Patterson v. Commonwealth, 39 Va. App. 658, 669 , 576 S.E.2d 222, 228 (2003) -6- (impartiality must be evaluated based on entire voir dire); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (juror impartiality is a question of fact).1 Here, it is contended that the trial court erred when it denied appellant’s motion to question an empaneled juror about her relationship with the alleged victim in the case after …
cited Cited as authority (rule) Scott v. Commonwealth
Va. Ct. App. · 2011 · confidence medium
“Whether a juror is impartial is a pure question of historical fact.” David v. Commonwealth, 26 Va.App. 77, 81 , 493 S.E.2d 379, 381 (1997).
cited Cited as authority (rule) Laferne Yvette Williams v. Commonwealth of Virginia
Va. Ct. App. · 2010 · confidence medium
“Whether a juror is impartial is a pure question of historical fact.” David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997).
discussed Cited as authority (rule) Hopson v. Commonwealth
Va. Ct. App. · 2008 · confidence medium
In this respect, the question “[whether a juror is impartial is a pure question of historical fact.” *152 David v. Commonwealth, 26 Va.App. 77, 81 , 493 S.E.2d 379, 381 (1997) (citing Wainwright v. Witt, 469 U.S. 412, 428 , 105 S.Ct. 844, 854 , 83 L.Ed.2d 841 (1985)).
discussed Cited as authority (rule) Russell Hopson v. Commonwealth of Virginia
Va. Ct. App. · 2008 · confidence medium
In this respect, the question “[w]hether a juror is impartial is a pure question of historical fact.” David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (citing Wainwright v. Witt, 469 U.S. 412, 428 (1985)).
discussed Cited as authority (rule) Busby v. State
Fla. · 2005 · confidence medium
See State v. Esposito, 223 Conn. 299 , 613 A.2d 242, 249-50 (1992) (right to use peremptories guaranteed by state constitution); Kirkland v. State, 274 Ga. 778 , 560 S.E.2d 6, 8 (2002) (statutory right to exercise peremptories against a panel free from exception); State v. Cross, 658 So.2d 683, 686 (La.1995) (right to use peremptories guaranteed by state constitution); People v. Cahill, 2 N.Y.3d 14 , 777 N.Y.S.2d 332 , 809 N.E.2d 561 (2003) (statute provides that reversal is warranted for erroneous denial of for-cause challenge when defendant exhausts peremptory challenges); David v. Commonwea…
examined Cited as authority (rule) Nelson v. Commonwealth (3×) also: Cited "see"
Va. Ct. App. · 2003 · confidence medium
Cf. Haddad v. Commonwealth, 229 Va. 325, 330 , 329 S.E.2d 17, 20 (1985) (holding that Virginia courts should be reluctant to presume prejudicial misconduct by jurors); Patterson v. Commonwealth, 39 Va.App. 658, 669 , 576 S.E.2d 222, 228 , (2003) (noting impartiality is evaluated by examining the entire voir dire); David v. Commonwealth, 26 Va.App. 77, 81 , 493 S.E.2d 379, 381 (1997) (noting juror impartiality is a factual determination of the trial court).
discussed Cited as authority (rule) Brooks v. Commonwealth (2×)
Va. Ct. App. · 2003 · confidence medium
David v. Commonwealth, 26 Va.App. 77, 80 , 493 S.E.2d 379, 381 (1997) (noting that juror impartiality is a factual determination, disturbed on appeal only for “manifest error”).
discussed Cited as authority (rule) Bradbury v. Commonwealth (2×)
Va. Ct. App. · 2003 · confidence medium
Clearly, her initial responses indicated a prejudice that precluded her from fairly serving on the jury, unless she was properly rehabilitated. 2 See David v. Commonwealth, 26 Va.App. 77, 81 , 493 S.E.2d 379, 381-82 (1997) (suggesting a potential juror with a “declared bias” is not necessarily disqualified but can be rehabilitated by non-leading questions).
discussed Cited as authority (rule) Cecilio DeLeon v. Commonwealth of Virginia
Va. Ct. App. · 2002 · confidence medium
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).
discussed Cited as authority (rule) Calvin Eugene Williams v. Commonwealth of Virginia
Va. Ct. App. · 2001 · confidence medium
See Sizemore v. Commonwealth, 11 Va. App. 208, 213 , 397 S.E.2d 408, 411 (1990) (noting that questions that "only inferentially address" a prospective juror's potentially disqualifying bias fail to disclose whether that bias is fixed or can be set aside); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (holding that evidence used to rehabilitate prospective juror must come from juror himself and not consist solely of his mere assent to leading questions). - 5 - Because such a doubt must be resolved in favor of the accused, we hold that the trial court's refusal to grant …
discussed Cited as authority (rule) State v. Lindell (2×)
Wis. · 2001 · confidence medium
App. 2001); David v. Commonwealth, 493 S.E.2d 379, 381 (Va. Ct. App. 1997) (citing Breeden v. Commonwealth, 227 S.E.2d 734, 736-37 (Va. 1976)); and State v. Fire, 998 P.2d 362, 364 (Wash. Ct. App. 2000), review granted by State v. Fire, 11 P.3d 826 (2000).
discussed Cited as authority (rule) William Childress v. Commonwealth of Virginia
Va. Ct. App. · 2000 · confidence medium
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).
cited Cited as authority (rule) Brown v. Commonwealth
Va. Ct. App. · 1999 · confidence medium
Id. at 81 , 493 S.E.2d at 381 (citations omitted).
discussed Cited "see" Debra Lashay Johnson v. Commonwealth of Virginia
Va. Ct. App. · 2024 · signal: see · confidence high
See David v. Commonwealth, 26 Va. App. 77, 81 (1997) (finding that a trial court abused its discretion when a juror’s rehabilitation consisted solely of the juror’s “mere assent to the court’s leading questions”).
discussed Cited "see" Green v. Commonwealth (2×)
Va. Ct. App. · 1998 · signal: see · confidence high
Hunt v. Commonwealth, 25 Va.App. 395, 399 , 488 S.E.2d 672, 674 (1997); see David v. Commonwealth, 26 Va.App. 77, 80 , 493 S.E.2d 379, 381 (1997) (juror impartiality a factual determination, disturbed on appeal only for “manifest error”).
discussed Cited "see, e.g." Alonzo Roger Jackson v. Commonwealth of Virginia
Va. Ct. App. · 2023 · signal: see also · confidence medium
See id. at 731-32 (citing Green v. Commonwealth, 26 Va. App. 394, 401 (1998)); see also David v. Commonwealth, 26 Va. App. 77, 81 (1997) (holding that the question of juror impartiality is a factual determination that “will not be 12 In her affidavit, Monica also stated that she had a post-trial conversation with Juror 10, in which Juror 10 apologized to Monica.
James EarI DAVID
v.
COMMONWEALTH of Virginia
2735962.
Court of Appeals of Virginia.
Nov 25, 1997.
493 S.E.2d 379
Matthew T. Paulk, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant., John H. McLees, Assistant Attorney General (Richard Cullen, Attorney General; Kimberley A. Whittle, Assistant Attorney General, on brief), for appellee.
Moon, Willis, Elder.
Cited by 28 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 84%
Citer courts: Court of Appeals of Virginia (1)
MOON, Judge.

James Earl David was convicted of two counts of robbery in violation of Code § 18.2-58 and two counts of use of a firearm in the commission of a robbery in violation of Code § 18.2-53.1. David asserts that the trial court abused its discretion by refusing to strike a prospective juror for cause. We agree and reverse.

During voir dire, defense counsel asked the panel members if they had been employed in law enforcement. One juror stated that she had some “good friends” with the Henrico County Sheriffs Office and that the daughter of her co-worker is a deputy in the Chesterfield County Sheriffs Office. She also revealed that she was a crime victim. In 1987, she said, someone mugged, robbed, and raped her; in 1984, someone broke into her home. The court then stated, “The real question is, will [your victimization] affect you in any way in this case to sit fairly and impartially?” The juror replied, “I can sit impartially, but I would probably tend to prosecute to the max because of my experiences.” The defense attorney asked, “Are you indicating to the Court that you would be more likely to listen to the prosecution’s side in this case?” The juror replied, “As being a victim among other things.”

At the conclusion of her voir dire, the defense counsel informed the court that she had a motion. Without addressing her statement, the court engaged the juror in the following dialogue:

The Court: I want you to be more clear, ma'am. Can you sit fairly and impartially in this case?
Juror Bullard: Depends on what evidence is presented.
The Court: Can you try the case on the evidence?
Juror Bullard: Yes.
The Court: You are not predisposed to convict?
[*80] Juror Bullard: No.
The Court: You will listen to the evidence, weigh it fairly and impartially and sit?
Juror Bullard: Yes.
The Court: Would you consider the whole range of punishment in your deliberations from what they said to the minimum to the maximum?
Juror Bullard: I will consider it, probably tend to go to the upper most reaches.
The Court: But you would consider it?
Juror Bullard: Yes.
The Court: You would consider it with an open mind?
Juror Bullard: Yes.

Defense counsel made a motion to strike the juror and objected to the court’s rehabilitation of her through leading questions. Counsel noted that the juror stated quite pointedly that she would be more favorable to the prosecution than to the defendant. The court overruled her motion. The defense then used a peremptory challenge to strike the juror.

Both the United States Constitution and the Virginia Constitution guarantee a criminal defendant’s right to an impartial jury. See U.S. Const, amends. VI, XIV; Va. Const. art. I, § 8; see also Code § 8.01-358; Rule 3A:14. “ ‘If there be a reasonable doubt whether the juror possesses [the ability to give an accused a fair and impartial trial], that doubt is sufficient to insure his 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 v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976) (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)).

Additionally, a trial court’s refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror. Id. at 300, 227 S.E.2d at 736 (“It is prejudicial error for the trial[*81] court to force a defendant to use the peremptory strikes afforded him by Code § 8-208.21 to exclude a venireman who is not free from exception.”) (citing Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727, 737 (1852)).

Whether a juror is impartial is a pure question of historical fact. Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985). Thus, the trial court’s resolution of the issue will not be disturbed on appeal absent “manifest error.” Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert. denied, 510 U.S. 848, 114 S.Ct. 143,126 L.Ed.2d 105 (1993).

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.

Educational Books, Inc. v. Commonwealth, 3 Va.App. 384, 389, 349 S.E.2d 903, 907 (1986) (citing Bausell v. Commonwealth, 165 Va. 669, 682-83, 181 S.E. 453, 458 (1935); Parsons v. Commonwealth, 138 Va. 764, 773, 121 S.E. 68, 70 (1924)).

This case is controlled by the rule in Parsons. The record shows that after the juror declared her bias in favor of the prosecution, the evidence used to rehabilitate her did not come from her but was based on her mere assent to leading questions.

This juror was not per se disqualified because of her declared bias; had her rehabilitative responses come from her in response to non-leading questions, the trial court would not have abused its discretion by refusing to strike her for cause. Because her rehabilitative responses consisted solely of her mere assent to the court’s leading questions, however, she should have been stricken for cause. See Parsons, 138 Va. at 773, 121 S.E. at 70. Therefore, we reverse and remand for a new trial.

Reversed and remanded.