Present: All the Justices
ROBERT K. MASON, a/k/a
ANTHONY BERNARD SMITH
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971818 April 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court
should have removed a juror, who had been empanelled and sworn
without objection, because the juror purportedly lacked
sufficient proficiency in the English language.
Robert K. Mason was indicted by an Arlington County grand
jury for the felony of habitual petit larceny in violation of
Code §§ 18.2-96 and -104. At a jury trial, the trial court
and counsel for the litigants participated in the voir dire.
Upon conclusion of the voir dire, the Commonwealth and the
defendant exercised their peremptory challenges, and a jury
consisting of 12 members was empanelled without objection.
During the guilt phase of the bifurcated trial, the
Commonwealth and the defendant presented their opening
statement, evidence, and closing argument. The jury then
deliberated and returned a verdict of guilty. In the
sentencing phase at the trial, the Commonwealth presented
additional evidence, but the defendant presented no evidence.
The trial court instructed the jury on sentencing, defense
counsel presented argument to the jury, and the jury retired
to deliberate the defendant’s sentence.
While the jury was deliberating, defense counsel made a
motion for a mistrial because he had received information that
one of the jurors purportedly had “great difficulty
understanding English.” The trial court interrupted the
jury’s deliberations, summoned the jurors to the courtroom,
and the following colloquy occurred:
“THE COURT: Ladies and gentlemen, I’m
sorry to interrupt your deliberations, but the
purpose of it is this:
“A question was raised as to whether or
not there is a juror who has difficulty with the
English language and was not able to understand the
testimony and is not able to understand the
instructions and the colloquy in the jury room on
the deliberations.
“I’ve done these cases and have done them
in Arlington, of course, for many years. And
usually where that is the case in a jurisdiction
like Arlington, that person makes known to the Court
that problem, if you will, and then the Court is
permitted to make inquiry initially of the person’s
experience with the English language.
“Is that a problem with a juror, or I
don’t want to embarrass anybody, but may I inquire
who the juror is so that I can determine from that
juror if there is a problem?
“Is there any problem in the --
“A JUROR: Well, I don’t think it was a --
well, this is the young lady right here.
“THE COURT: All right.
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“A JUROR: But we have at least two or
three people that interpret the Spanish language,
that really broke everything down for her.
“THE COURT: You speak English, don’t you?
“A JUROR: Yes, I speak English, but not
perfect.
“THE COURT: Well, not too many know it to
perfection. We don’t practice that and we don’t
expect it. But do you work out in the community?
“A JUROR: I work in Washington, D.C.
“THE COURT: All right.
“A JUROR: At Parkinson’s Hotel.
“THE COURT: You deal with people in
English constantly, don’t you?
“A JUROR: Yeah.
“THE COURT: All right.
“A JUROR: This is the first time I come
over here. So many things new. The gentleman, he
translate to me some things.
“THE COURT: Do you write in English?
“A JUROR: A little bit.
“THE COURT: And do you read English?
“A JUROR: Read more than write.
“THE COURT: You read more than you write.
Do you read the newspapers?
“A JUROR: Yes.
“THE COURT: And you converse with English
when you are with English-speaking people? You
converse with them in English, do you?
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“A JUROR: Yeah. In my job, yes.
“THE COURT: All right.
“I see no problem with this person’s
ability or level of understanding of English to
certainly deliberate in the jury room.”
After the jury had returned to the jury room to continue
its deliberations, the court further explained its ruling
denying the defendant’s motion:
“Well, I was guided more by her ability to
converse with me. That’s the test. And to sit
through the voir dire and know when to raise her
hand and make an inquiry.
“In this community, which has its various
national groups here, and in many other communities
in this country, you have many more people serving
on juries who are less acquainted with the local
language than this lady is. She would be so far
above the minimum standard, I think, that she would,
I think, pass anyone’s test.”
The jury concluded its deliberations and fixed the defendant’s
punishment at three years and nine months in the penitentiary.
The jury was polled, and each juror responded affirmatively
when asked by the clerk, “is this your verdict?”
After the jury was discharged, the defendant renewed his
motion for a mistrial. Denying that motion, the trial court
stated:
“I spoke with her. And when you made your
motion, I had the jury come in and take their seats
in the jury box and asked her specifically about her
understanding and asked so the others could hear it,
and her understanding of what I said seemed to me to
be very good. And her responses were directly to
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the statements that I had made. And I had no reason
to believe at all that she did not understand me.
“She said that she reads English. She
does not write it too well. She speaks it. She
works in an environment where she uses it. And I
think she meets the standard that we need as far as
her ability to function as one of the 12 jurors,
which she certainly appears to have done.”
The trial court entered a judgment confirming the jury’s
verdict, and the Court of Appeals, in an unpublished
memorandum opinion, affirmed the judgment of the trial court.
Robert Mason, a/k/a Anthony Bernard Smith v. Commonwealth,
Record No. 0499-96-4 (1997). Mason appeals.
Mason argues that the trial court erred in denying his
motion for a mistrial because due process requires a trial by
an impartial jury of 12 members competent in the English
language. The Commonwealth responds that the defendant’s due
process rights were not abridged because the challenged juror
had a sufficient understanding of the English language. We
agree with the Commonwealth.
A defendant in a criminal prosecution has a fundamental
right to a trial by an impartial jury. U.S. Const. amends. VI
and XIV; Va. Const. art. I, § 8; Gray v. Commonwealth, 226 Va.
591, 592-93, 311 S.E.2d 409, 409-10 (1984). The right of an
impartial jury requires that the jury be capable of
understanding the factual issues that it must resolve. See
Commonwealth v. Susi, 477 N.E.2d 995, 997 (Mass. 1985); State
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v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct. App. 1996). Indeed, the
United States Supreme Court has stated that “[d]ue process
means a jury capable and willing to decide the case solely on
the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217
(1982). See also Susi, 477 N.E.2d at 997; State v. Gallegos,
542 P.2d 832, 833-34 (N.M. Ct. App. 1975).
After the jury has been sworn, a litigant may only make
an objection relating to the empanelling of jurors with leave
of court. Code § 8.01-352(A)(ii); Hill v. Berry, 247 Va. 271,
273, 441 S.E.2d 6, 7 (1994). Here, the trial court implicitly
granted Mason leave to challenge the juror because the court
decided his motion. Hill, 247 Va. at 274, 441 S.E.2d at 7.
However, a litigant who seeks to set aside a jury verdict or
obtain a new trial on the basis of a juror’s disability must
demonstrate that the “disability be such as to probably cause
injustice in a criminal case to the Commonwealth or to the
accused.” Code § 8.01-352(B). Additionally, we note that
upon appellate review, we must give deference to the trial
court’s decision whether to remove a juror because the trial
court sees and hears the juror. See Weeks v. Commonwealth,
248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert. denied,
516 U.S. 829 (1995).
Applying the aforementioned principles, we hold that the
trial court properly denied Mason’s motion for a mistrial
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because the record fails to demonstrate that the challenged
juror had a disability which was “such as to probably cause
injustice” in Mason’s criminal trial. The trial court
examined the challenged juror to determine her level of
proficiency in the English language. As the colloquy between
the trial court and the challenged juror indicates, the juror
understood all the trial court’s questions. The trial court
made a factual finding that the challenged juror had a
sufficient level of understanding of the English language
which permitted her to participate fully in the jury
deliberations. According the trial court the deference to
which it is entitled, we perceive of no reason to disturb the
trial court’s finding, which is supported by the record.
We do not consider the defendant’s argument that the
trial court erred by improperly asking leading questions when
the court examined the challenged juror because such argument
was not raised in the trial court. Rule 5:25. Accordingly,
the judgment of the Court of Appeals will be affirmed.
Affirmed.
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