THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage,
K. Plofchan, Jr. (Westlake Legal Group, on briefs), for
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
BENNETT MALVEAUX JUDGE
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,
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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.
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.
20, 2016, the jury found appellant guilty of first-degree
murder, burglary, and violation of a protective order.
Severance / Protective Order
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.
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." The order granted
the victim the exclusive possession of the marital residence
and ordered appellant to "stay away" from the
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
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,
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
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.
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.
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).
"[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. 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
the principles outlined above, we conclude that the
protective order itself was admissible in both the
first-degree murder trial and burglary trial.
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).
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).
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
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.
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.
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
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 . . . ."
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."
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
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.
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
ANDERSON: My ability to set aside my emotions are better.
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 --
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,
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."
contends the trial court erred by denying him an impartial
jury by refusing to strike Jurors Colbert and Anderson for
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").
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)).
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
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
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
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.
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
a full examination of Anderson's mid-trial voir
dire belies these contentions.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 ...