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Castillo v. Commonwealth

Court of Appeals of Virginia

June 4, 2019

BRAULIO MARCELO CASTILLO, S/K/A BRAULIO MARCELLO CASTILLO
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge

          Thomas K. Plofchan, Jr. (Westlake Legal Group, on briefs), for appellant.

          Eugene P. Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, [*] Judge Malveaux and Senior Judge Haley Argued at Fredericksburg, Virginia

          OPINION

          MARY BENNETT MALVEAUX JUDGE

         Braulio M. Castillo ("appellant") was convicted of first-degree murder, in violation of Code § 18.2-32, burglary with the intent to commit murder, in violation of Code § 18.2-90, and violation of a protective order, in violation of Code § 16.1-253.2. On appeal, he challenges several of the trial court's decisions: (1) the denial of his motion to sever the protective order violation and the admission of the protective order; (2) the refusal to strike Juror Colbert for cause and to properly examine Juror Anderson; (3) the finding that he waived attorney-client privilege concerning notes found on his iPhone; (4) the admission of "cadaver dog" evidence; (5) the denial of motions for mistrial based upon prosecutorial misconduct; (6) allowing for the testimony of a child via closed-circuit television; (7) the admission of testimony regarding his exercise of his right to remain silent; (8) the limitation of cross-examination of certain Commonwealth witnesses; (9) the denial of his motion to set aside the verdict based upon a Brady violation; and (10) the refusal to review notes from an interview in camera. Finding no error, we affirm.

         I. BACKGROUND

         Appellant and the victim, Michelle Castillo, were married and lived in a home in Ashburn, Virginia. They had four minor children, V.C., J.C., Z.C., and B.C., and an adult child, Nicholas, who lived away from home at college. The victim and appellant separated in March 2013. At that time, the victim petitioned for and was granted a protective order on behalf of herself and the minor children. The order required appellant to "refrain from committing further acts of family abuse." The protective order also gave the victim legal custody of the children and possession of the marital residence. Appellant was allowed to see the children for dinner on Wednesday nights and on every other weekend but was prohibited from entering the residence.

         Two to four weeks after entry of the protective order, the victim filed for divorce. She requested spousal support and child support. Her divorce attorney described the divorce as "hotly contested," and testified that he believed the victim was eligible for a combined total of $14, 000 to $20, 000 a month in child support and spousal support. On March 14, 2014, the parties appeared in court for a pendente lite hearing, which was continued to May. The victim's demeanor in court on March 14 was "happy," and she was observed smiling and laughing.

         The following day, the victim, who had trained as a triathlete after separating from appellant, ran a marathon and qualified for the Boston Marathon. She planned to compete in an Iron Man competition in November 2014, and her friends stated that she was excited about her plans and upcoming travel.

         On the evening of March 19, 2014, the victim met several members of her triathlon team at a restaurant. She appeared happy and excited that she had qualified for the Boston Marathon. The victim left the restaurant to pick up her children from visitation with appellant.

         The minor children had been visiting appellant for dinner that night at his house, which was approximately a thousand yards from the victim's home. Lucy Fuentes, appellant's sister, was also at the dinner, and she left appellant's house at 8:05 p.m. and drove the children to meet the victim at a Harris Teeter grocery store a few miles away.

         Security footage from a neighbor's house showed a male jogger arriving at the victim's home and walking up the driveway about ten minutes before the victim arrived with the children. Although the jogger's face is unidentifiable from the video, Nicholas Castillo and David and Stephanie Meeker, friends of the Castillos, identified the jogger as appellant based on the jogger's unusual gait.

         The following morning, the children woke up and discovered the victim was missing. In the victim's bedroom, J.C. noted that the bed had been made up "messily" and without the victim's usual care. Several other witnesses also testified that the bed was not made in the manner typical of the victim. J.C. had to pick the locks to enter the victim's bathroom, where he found the shower running with no one in it. J.C. called appellant and told him he could not find the victim.

         A little after 7:00 a.m., appellant knocked on the door of the victim's neighbor, Ahmed Qureshi, and told him that the victim was missing. Qureshi noticed that appellant was wearing sunglasses and that it appeared there was "something around" his left eye. Because appellant was prohibited from entering the victim's home, he asked Qureshi to accompany him to the residence. There, Qureshi quickly checked the exterior before entering to find appellant upstairs examining the victim's bedroom. After appellant came downstairs and joined the children in the kitchen, Qureshi asked J.C. if anyone had searched the basement. Appellant responded that they had already searched that area. Qureshi stated that they needed to call 911, but appellant told him that he needed to get the children to school and left with them. Qureshi returned home, called 911, and reported that the victim was missing.

         Law enforcement officers arrived at the residence and searched the basement, where they discovered the victim hanging from a shower head in a bathroom. The victim was wearing a sweatshirt.

         Detective Mark McCaffrey with the Loudoun County Sheriff's Office and the lead investigator in the case, called appellant that morning and told him that he needed to speak with him about the victim's disappearance. Appellant stated that he was taking care of his son and would call back. McCaffrey drove to appellant's house and informed him of the victim's death. Appellant expressed no emotion when he learned this information and did not ask any questions about the circumstances of his wife's death. McCaffrey noticed that appellant had a black eye and a fresh scrape under his eye.

         The medical examiner, Dr. Constance DiAngelo, testified that the manner in which the victim died was inconsistent with suicide. DiAngelo found multiple bruises and abrasions on the victim's body and stated that such bruises were "very, very unusual" in suicide cases. She also stated that it was very unusual to find a suicide victim's hair underneath the noose, as in this case. DiAngelo opined that the injuries to the victim's neck and face indicated that she died as a result of suffocation and strangulation involving elements of both manual and ligature strangulation. DiAngelo testified that she found two ligature marks on the victim's neck: a deeper, horizontal mark that was consistent with strangulation at the time of death, and a more shallow mark with a different orientation which was consistent with the victim being hung in the shower after death.

         The Virginia Department of Forensic Science analyzed bloodstains found on the victim's bed linens and the sweatshirt she was wearing and identified the presence of appellant's DNA. One of the victim's friends identified the sweatshirt as belonging to the victim. The victim's housekeeper testified that she had not seen appellant in the home following the issuance of the protective order a year earlier.

         Two victim recovery dogs were deployed inside the victim's home seventeen days after her death. Morse, commonly referred to as a "cadaver dog," was trained to alert to the odor of human decomposition and large quantities of dried blood; Keela, the second dog, was trained to detect the odor of smaller quantities of dried blood. Morse immediately alerted to the basement bathroom where the victim's body was found and later alerted to a carpeted area at the base of the victim's bed. Keela was "detailed" to the carpeted area where Morse had alerted, but she did not alert. She only alerted to the victim's underwear drawer.

         A crime scene investigator with the Loudoun County Sheriff's Office testified that he was unable to obtain fingerprints from the walls of the basement shower despite the fact that ceramic tile similar to the ones in the shower typically made obtaining prints easy. Nicholas Castillo testified that he had visited his mother and used her basement shower the weekend before her death.

         On March 21, 2014, the day after the victim's body was discovered, appellant called his orthodontist to report that he had a broken braces bracket and to schedule an appointment to repair it. The orthodontist testified that a bracket will become loose after external pressure or force is applied to either the tooth or the bracket.

         J.C., who was eleven at the time of trial, testified that in the year preceding the victim's death, appellant had asked him for the passcode to the victim's home security system. The victim had changed the code after appellant moved out. J.C. gave appellant the code, but then told the victim, who changed it again. When appellant later inquired about the passcode, J.C. refused to provide it, even after appellant told him that he would give him a gold coin in order to obtain the code. J.C. stated that his refusal to provide the code angered appellant.

         Z.C., who was eight at the time of trial, testified that on the night of March 19, 2014, he returned to the victim's home after dinner at appellant's house and slept with the victim for part of the night, but then went to sleep with his brother J.C. He left his blanket in the victim's bed. Z.C. testified that appellant brought him his blanket that night while he was in J.C.'s room.

         Eight days after the victim's death, appellant filed a motion to dissolve the divorce. Having survived the victim, appellant became sole owner of the marital estate, the value of which was estimated at between $2.6 and $3.6 million.

         On June 20, 2016, the jury found appellant guilty of first-degree murder, burglary, and violation of a protective order.

         II. ANALYSIS

         A. Severance / Protective Order

         A grand jury indicted appellant on three charges: murder in the first degree, in violation of Code § 18.2-32; burglary with the intent to commit murder, in violation of Code § 18.2-90; and violation of a protective order, in violation of Code § 16.1-253.2. Prior to trial, appellant filed a motion to sever the violation of a protective order charge. After hearing argument, the court denied the motion to sever, finding that the offenses were based on the same act or transaction and that justice did not require separate trials.

         The protective order was entered into evidence at trial. The order reflected that it was in effect at the time of the victim's death. The protective order listed the victim as the petitioner for the order, which was also granted on behalf of the parties' minor children. The order stated that the court had found that the victim had "proven the allegation of family abuse by a preponderance of the evidence" and ordered appellant to "refrain from committing further acts of family abuse."[1] The order granted the victim the exclusive possession of the marital residence and ordered appellant to "stay away" from the property.[2]

         Discussion

         Appellant argues that the trial court erred by denying his motion to sever the violation of a protective order charge from the murder and burglary charges and in admitting the protective order.[3]

         "Whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court. Thus, a trial court's ruling on the matter will not be reversed absent a showing that the court abused its discretion." Cheng v. Commonwealth, 240 Va. 26, 33-34 (1990).

         Rule 3A:10(c) allows cases to be joined for trial if justice does not require separate trials and either "the accused and the Commonwealth's attorney consent" or "the offenses meet the requirements of Rule 3A:6(b)." "Under Rule 3A:6(b), two or more offenses may be joined in a single indictment 'if the offenses are based on the same act or transaction, or on two or more acts or transactions that are [a.] connected or [b.] constitute parts of a common scheme or plan.'" Scott v. Commonwealth, 274 Va. 636, 644 (2007) (quoting Rule 3A:6(b)). Therefore, if a defendant does not consent to joinder, the Commonwealth must establish that the offenses were either part of the same act or transaction or part of a common scheme or plan and that justice does not require separate trials.

         We conclude that the three charged offenses met Rule 3A:6(b)'s requirements for joinder because all three offenses were clearly "based on the same act or transaction." Appellant broke into the victim's house in violation of the protective order with the intent to murder her. He did not leave the residence until he had committed the murder. Each offense took place at the same location and at the same time.

         Finding the offenses meet the "same act or transaction" requirement under Rule 3A:6(b), we must now determine whether justice required appellant to have separate trials.

         "Justice requires separate trials where the evidence of one of the crimes is not admissible in the trial of the other." Godwin v. Commonwealth, 6 Va.App. 118, 123 (1988).

         Generally, "[e]vidence of other independent acts of an accused is inadmissible if relevant only to show a probability that the accused committed the crime for which he is on trial because he is a person of bad or criminal character." Sutphin v. Commonwealth, 1 Va.App. 241, 245 (1985). However, such evidence is admissible when it is "relevant to an issue or element in the present case." Id.[4] Accordingly, evidence of an accused's prior bad acts may be properly admitted

(1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.

Quinones v. Commonwealth, 35 Va.App. 634, 640 (2001) (quoting Lockhart v. Commonwealth, 18 Va.App. 254, 259, opinion withdrawn and vacated on other grounds on reh'g en banc, 19 Va.App. 436 (1994), aff'd, 251 Va. 184 (1996)); see also Va. R. Evid. 2:404(b).

This list is neither exhaustive nor definitive; intent, general (as opposed to guilty) knowledge, agency, premeditation and other elements of criminal acts are all subsumed within the exceptions to the general rule and may be shown by prior bad act evidence when relevant to prove a material element or issue of the crime charged.

Lafon v. Commonwealth, 17 Va.App. 411, 417 (1993). Further, we note that Virginia law "follows an 'inclusionary approach' to the uncharged misconduct doctrine by admitting such evidence 'if relevant, for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.'" Thomas v. Commonwealth, 44 Va.App. 741, 757 n.8 (quoting Kent Sinclair, Joseph C. Kearfott, Paul F. Sheridan, & Edward J. Imwinkelried, Virginia Evidentiary Foundations § 6.4[A], at 165 (1998)), adopted upon reh'g en banc, 45 Va.App. 811 (2005).

         Applying the principles outlined above, we conclude that the protective order itself was admissible in both the first-degree murder trial and burglary trial.

         To sustain the charge of first-degree murder, the Commonwealth had to show that appellant committed a "willful, deliberate, and premeditated killing." Code § 18.2-32. The Commonwealth's theory of the case was that appellant willfully killed the victim by entering the marital home in violation of the protective order and then murdering her in her bedroom. Here, the protective order was admissible to prove appellant's opportunity to commit the murder. The protective order demonstrated that appellant had been barred from entering the marital residence for the prior year. However, appellant's DNA was recovered from bloodstains found on the victim's bed linens and the sweatshirt she was wearing. The protective order shows that it was unlikely he had entered the residence prior to the night of the murder, and thus tended to prove that his DNA found in the bedroom was a result of his presence in the victim's bedroom the night of her death. Because the protective order was relevant to show that there was no reasonable explanation for the presence of appellant's DNA on the victim's clothing and bedding other than his presence in her bedroom on the night of the murder, it served a purpose "other than to show a mere propensity or disposition on the part of the defendant to commit the crime." Thomas, 44 Va.App. at 757 n. 8 (quoting Sinclair, supra, at 165).

         We further find that the protective order was admissible in the trial for burglary. Code § 18.2-90 provides, in pertinent part, that "[i]f any person in the nighttime enters without breaking or in the daytime breaks and enters . . . a dwelling house . . . with intent to commit murder, rape, robbery or arson . . . he shall be deemed guilty of statutory burglary." The protective order prohibiting appellant from entering the marital residence demonstrated that appellant acted without authority in entering the home. Thus, the protective order was relevant "to establish guilty knowledge or to negate good faith." Quinones, 35 Va.App. at 640 (quoting Lockhart, 18 Va.App. at 259); see also Turner v. Commonwealth, 33 Va.App. 88, 94-95 (2000) (rejecting defendant's argument that he could not be guilty of burglary because he and his wife jointly owned the property he was accused of breaking and entering while he was under court order to have no contact with wife).

         We conclude that the protective order would have been admissible in both the murder and burglary trials as it was relevant to an issue or element in each of those cases. However, in order to meet the test for admissibility as other bad acts evidence, the evidence also must be otherwise admissible. "Admission of evidence of other crimes committed by a defendant . . . is subject to the further requirement that the legitimate probative value of the evidence must exceed the incidental prejudice to the defendant." Rose v. Commonwealth, 270 Va. 3, 11 (2005). "[T]he responsibility for balancing the competing considerations of probative value and prejudice rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a clear abuse." Ortiz v. Commonwealth, 276 Va. 705, 715 (2008) (quoting Spencer v. Commonwealth, 240 Va. 78, 90 (1990)).

         Appellant argues that the protective order would not have been admissible in the murder and burglary trials because the evidence was unduly prejudicial. He contends that even if the parties' marital issues were relevant, the existence of those issues was genuinely uncontested given that the parties were divorcing. Thus, any probative value of the protective order was outweighed by the danger of prejudice to appellant, making the evidence inadmissible. We disagree.

         As noted above, the protective order was admissible not merely as evidence of marital issues, but also to prove opportunity and establish guilty knowledge or negate good faith. Although the protective order reflected that appellant had committed a prior act of family abuse, which might have had an adverse effect on him, we cannot say that the trial court abused its discretion in finding that the substantial probative value of the evidence would have outweighed any prejudicial effect.

         Because the three charged offenses met the requirement of Rule 3A:6(b) and justice did not require separate trials, the joinder requirements of Rule 3A:10(c) were met. We hold, therefore, that the trial court did not abuse its discretion in denying appellant's motion for separate trials.[5]

         B. Jury Issues

         During voir dire, counsel for appellant asked the entire venire a series of questions, including whether anyone knew someone who had either attempted or committed suicide. Prospective Juror Colbert responded that he did. During individual voir dire conducted outside the presence of the rest of the venire, Colbert stated that his neighbors had "some history of domestic violence" and that less than two months prior to trial, his female neighbor had hanged herself in a closet. When he learned of his neighbor's death, he immediately thought it murder rather than suicide. Although he had called the police, there "was no investigation done" and it was "swept under the rug." Colbert was "suspicious of that." When asked to explain his statement that there "was no investigation done," Colbert explained that he was out of town when the death occurred, but that when he returned, no one called him or his fiancée to see if they knew anything about the incident. His fiancée had called the police and briefly talked to them, but they did not follow up with her. Colbert had immediately thought it murder rather than suicide when he learned of his neighbor's death. Counsel for appellant asked Colbert if he was "going to be able to separate things and keep this terrible experience or in any way separate it out from any evaluation of the case here?" Colbert replied, "Yeah, I believe so," because his neighbor "had a history of mental illness, and . . . so even though there was some suspicion . . ., I think there was [sic] experts that could look at these things and advise on what actually took place, so . . . ."

         Colbert also told the court that his fiancée had been a victim of domestic violence in the past. Counsel for appellant asked Colbert whether this fact or his fiancée's feelings about the neighbor's death would put any pressure on him if his fiancée knew he was on the jury, and he responded, "No."

         Counsel for appellant moved to strike Colbert in light of his statement that he thought his neighbor's death was murder rather than suicide, and because he was so closely involved with the death that "it would be extremely difficult for him to ultimately remove himself from that." Colbert was recalled for further questioning, and the court asked him if the "entirety of the circumstances" that he had discussed would affect his ability to "judge this case solely on the evidence that is before [him]." Colbert stated that he had come to "a suspicion and a judgment" about his neighbor because he had "witnessed . . . and heard things" himself, where in contrast "[i]n a case where I know nothing, and there is stuff presented from either side, I have no . . . personal involvement, so I would listen to both sides and know that suicide is possible, murder is possible." He further stated, "I think I can listen fairly and make a judgment based on what was presented." The court denied appellant's motion to strike the juror for cause, finding that the further answers given by Colbert clearly demonstrated that "he would be able to deal with this case on the evidence in this case." Colbert served on the jury.

         At the end of the sixth day of trial, the court excused the jury for the day. After the jury had left the courtroom and entered the jury room, counsel for appellant told the court that while the door was open he could hear one of the jurors "crying to the extent of howling." He could "hear it through the door" even after the door was closed. The court stated that court personnel were separating Juror Anderson, the juror who was crying, from the rest of the jury. Counsel for appellant asked the court to question Anderson as to her emotional display, arguing that it would be proper to inquire whether she could follow the court's instructions to hear all the evidence before making a decision in the case. The court declined to adopt appellant's proposed line of questioning, and instead brought Anderson back into court and asked her if she was suffering from any medical condition that would prevent her from serving as a juror. She responded in the negative.

         Prior to the commencement of the next day of trial, the court announced that it would further question Juror Anderson. The court also told counsel that a bailiff had informed the court that Anderson had commented that "she was now able to breathe" and that it had seemed to Anderson "that the witness wasn't able to breathe." The witness who had testified immediately prior to the crying reported by appellant's counsel was J.C., appellant's eleven-year-old son. The court questioned Anderson about her statement to the bailiff, and she stated that she "might have held [her] breath there for a minute . . . because of the anguish" and that she thought the witness was not able to breathe because he had started to cry. She "felt very emotional towards that." The court then asked Anderson several additional questions about her feelings and her ability to remain impartial throughout proceedings, in light of "the noise we heard when the [c]ourt was closed." Anderson replied that her ability to remain impartial was "positive" and that her "ability right now does not lean one way or the other." After stating that her ability to remain impartial did not lean toward either side, Anderson made a further unprompted statement about her impartiality to the court, and the court then asked further questions of the juror.

ANDERSON: I'm still here to observe the witnesses and the evidence in the case, to determine the outcome. And so nothing that has happened so far or what happened to me --
THE COURT: Okay. Can you speak to --
ANDERSON: -- will deter me.
THE COURT: I'm sorry, I didn't mean to cut you off.
ANDERSON: Will deter me. Will deter my impression.
THE COURT: Okay.
ANDERSON: My ability.
THE COURT: Okay. Can you speak to us about your ability to set aside any emotions that you may have and keep an open mind --
ANDERSON: My ability to set aside my emotions are better. Uh-huh.
THE COURT: Is what?
ANDERSON: My abilities to set aside my emotions are better. I think I have a little bit more control.
THE COURT: Better than what? I just want to --
ANDERSON: Than Friday.
THE COURT: Okay.
ANDERSON: I'm more prepared mentally.
THE COURT: My question has to do with any emotions that you have and how they would affect your ability to fairly and impartially hear the evidence in this case.
ANDERSON: I am very -- I am very clear minded. My emotions will not cloud my decision or my -- or my ability to hear the evidence and hear the witnesses.
THE COURT: Okay. And are you at this time and throughout the trial able to withhold making any fixed or firm formed opinions about [appellant's] guilt or innocence --
ANDERSON: Absolutely.
THE COURT: -- let me finish the question -- until you [have] heard all the evidence in the case?
ANDERSON: Until I have heard all the evidence in the case, yes.

         Following this exchange, counsel for appellant moved to strike Anderson for cause. The court denied the motion, noting that the juror had stated that she was able to remain impartial. The court also noted that the juror's behavior had been normal while court was in session. The court stated that while Anderson had "spoken of anguish and having to hold her breath," it could not "get behind what the cause of that anguish was."

         Discussion

         Appellant contends the trial court erred by denying him an impartial jury by refusing to strike Jurors Colbert and Anderson for cause.

         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, 975-76 (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. at 975 (quoting Breeden v. Commonwealth, 217 Va. 297, 300 (1976)). To qualify as a juror, a prospective juror must "stand indifferent in the cause." Code § 8.01-358. If a 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, or is sensible of any bias or prejudice, he is excluded by the law." Taylor v. Commonwealth, 67 Va.App. 448, 454 (2017) (quoting Spangler v. Ashwell, 116 Va. 992, 996-97 (1914)); see Griffin v. Commonwealth, 19 Va.App. 619, 621 (1995) (explaining that "the test of impartiality is whether the venireperson can lay aside the preconceived views and render a verdict based solely on the law and evidence presented at trial").

         "Juror impartiality is a question of fact." Huguely v. Commonwealth, 63 Va.App. 92, 121 (2014) (quoting Lovos-Rivas v. Commonwealth, 58 Va.App. 55, 61 (2011)). "Whether a venireman 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 (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 (1978). Further, evidence of a prospective juror's impartiality "should come from him and not be based on his mere assent to persuasive suggestions." Bradbury v. Commonwealth, 40 Va.App. 176, 181 (2003) (quoting McGill v. Commonwealth, 10 Va.App. 237, 242 (1990)).

         Although we review the trial court's determination deferentially, "any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused." Breeden, 217 Va. at 298. "In conducting our review, we consider the juror's entire voir dire, not merely isolated statements." Lovitt v. Commonwealth, 260 Va. 497, 510 (2000). We will disturb the trial court's decision regarding juror impartiality "only upon a showing of manifest error." Weeks v. Commonwealth, 248 Va. 460, 475 (1994).

         1. Juror Colbert

         Appellant argues that Colbert's voir dire revealed his bias. Appellant specifically points to (1) Colbert's statement that he "th[ought] [he] c[ould] listen fairly and make a judgment based on what was presented," and (2) the timing and similarity of his neighbor's death in relation to the allegations presented at trial. He contends that both combined to raise a reasonable doubt as to Colbert's impartiality.

         While appellant emphasizes Colbert's use of the word "think," characterizing his response as too equivocal to ensure his impartiality, we note that "the word 'think' can have different meanings depending on one's demeanor, emphasis, and tone of voice-and . . . such contextual determinations must be made by the trial court during voir dire." Huguely, 63 Va.App. at 125. Further, in the context of statements made during voir dire, "[w]here the record does not indicate inflection and tone, we view the statements in the light most favorable to the Commonwealth." Taylor, 67 Va.App. at 460 n.2. Viewed in the light most favorable to the Commonwealth, we construe Colbert's use of "think" to support a finding that his whole statement to the court-"I think I can listen fairly and make a judgment based on what was presented"-indicated that he was able to listen fairly and judge based upon the evidence. This finding is further supported by the context surrounding Colbert's statement. Colbert made his statement after he was asked whether his past experience with suicide would influence his ability to weigh the evidence in this case. His response was that unlike his prior experience, he had no firsthand knowledge of the facts of this case and "would listen to both sides and know that suicide is possible, murder is possible." These statements, viewed together in context, demonstrate that Colbert's "I think" statement was not too equivocal to ensure his impartiality.

         Appellant's additional argument that Colbert was biased because of the recent timing and similarity of his neighbor's death is likewise unsupported by the record. Colbert was specifically asked by counsel for appellant if he would be able to separate his past experience from the current case, and Colbert replied that he believed he would. He also stated that any feelings his fiancée might have about the neighbor's death would not put pressure on him to decide the case in a certain way. Based upon these answers, viewed together with Colbert's other statements that he would listen to both sides, knew that both suicide and murder were possible, could listen fairly, and would make a judgment based on the evidence presented, we cannot say the record as a whole demonstrates that Colbert was biased in this matter because of his neighbor's death. Thus, we find that the trial court did not abuse its discretion in refusing to strike Colbert for cause.[6]

         2. Juror Anderson

         Appellant also argues that Anderson, in the mid-trial voir dire, did not provide unqualified assertions of impartiality. He alleges that Anderson did not unequivocally state that she could set aside her emotions and keep an open mind, and only informed the court that her ability was "better" than it had been the previous day at trial.

         However, a full examination of Anderson's mid-trial voir dire belies these contentions.[7]Before Anderson stated that her ability to set aside her emotion was "better," the court asked about her ability to remain impartial, and she replied that her "ability right now does not lean one way or the other." She further stated, unprompted by the court, that she was "still here to observe the witnesses and the evidence in the case, to determine the outcome." Following her statement that her ability to set aside her emotions was "better," the court clarified that it was asking her about "any emotions that you have and how they would affect your ability to fairly and impartially hear the evidence in this case." Anderson replied that she was "very clear minded" and that her "emotions w[ould] not cloud [her] decision" or "ability to hear the evidence." These statements support the conclusion that Anderson remained impartial despite her emotional response to J.C.'s testimony. Additionally, we note that many of Anderson's statements ...


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