Brooks v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia

KENNETH CARL BROOKS
OPINION BY
v. Record No. 1401-02-4 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 9, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge

William A. Crane, Public Defender (Office of
the Public Defender, on brief), for
appellant.

Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Kenneth Carl Brooks was convicted in a jury trial on three

counts of taking indecent liberties in violation of Code

§ 18.2-370, two animate object penetration charges in violation

of § 18.2-67.2, and five aggravated sexual battery charges in

violation of § 18.2-67.3. Imposing the sentence fixed by the

jury, the trial court sentenced Brooks to 99 years in prison, 10

of which were suspended, and ordered him to pay a $25,000 fine.

Brooks appeals his convictions on the ground that the trial

court erred because it denied his motion to excuse for cause a

juror who was related to several of the prosecution witnesses

and to the victims and denied his motion for a mistrial. We

find no error and affirm.
 Factual Background

Brooks was indicted and ultimately convicted of committing

various sexual offenses against several minors: L.M., A.G.,

De.M., R.M., and D.M.1 The minors testified for the Commonwealth

at the trial, as did their fathers.

During pretrial voir dire, the judge asked the venire

members: "Are any of you related by blood or marriage to any of

those persons against whom the alleged offenses were committed,

or do you know them?" All the jurors responded in the negative.

However, after the first day of the trial, the clerk received a

telephone call from one of the seated jurors, Nancy Cook,

expressing some concerns. As a result, the judge conducted the

following voir dire the next morning:

THE COURT: Ms. Cook, it has come to the
Court's attention that you conversed with
the Clerk about a matter that was of concern
to you.

MS. COOK: Yes, sir.

THE COURT: All right. Would you go ahead,
for the record, so that the attorneys get an
opportunity to hear what your concern is and
the Court gets an opportunity to evaluate
your concern and see if it is well-placed or
if it is not of great consequence.

MS. COOK: Okay. My brother-in-law is the
[victims'] great uncle. And, I don't know
them.

THE COURT: You want to run that by me gain?

1
Because two of the minors have the same first and last
name initials, we have identified one as De.M. and the other as
D.M.

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MS. COOK: My brother-in-law.

THE COURT: Explain that.

MS. COOK: My sister's husband. It is my
brother-in-law. He is the girls' great
uncle and, I didn't know that yesterday.

* * * * * * *

THE COURT: Don't think it would make a
difference.

MS. COOK: No. It is kind of like you wake
up at nighttime all of a sudden and it kind
of hits you, you know. When [the victims'
uncle] came in, he looked familiar to me. I
thought that I was introduced to him one
time . . . . He just looked familiar to me,
and then I put the girls in place.

THE COURT: You don't actually know any of
these people?

MS. COOK: I don't know them. I don't know
them from Adam. I would [sic] know them if
I passed them on the street. I wouldn't
know them.

THE COURT: Mr. Ambrogi, any questions?

MR. AMBROGI: No question. No, sir.

THE COURT: Mr. Crane, any questions of
this lady?

MR. CRANE: No, Your Honor.

THE COURT: Ma'am, you believe you can
continue to sit and hear this case and act
fairly and impartially?

MS. COOK: Yes, I do.

THE COURT: You believe you can follow the
instructions of law that the Court gives you
and decide this case fairly and impartially,
giving a fair trial to both sides?

MS. COOK: Yes, sir. I do.

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 THE COURT: Ma'am, I appreciate your
diligence by bringing this concern to our
attention. It is important that a fair
trial be had for all sides.

MS. COOK: Yes. That is what I wanted.

THE COURT: Ask you to retire back with the
jury. Thank you, ma'am.

Defense counsel then asked the court to remove Cook from

the jury. He argued, "[t]he fact that she is related would make

it difficult for her to be unbiased in evaluating the evidence"

and "in the interest of fairness it is important not to have

relatives of the prosecutrixes on the jury panel. We just don't

know." The prosecutor opposed the motion, arguing that any

relationship was remote. He also noted Cook's assertion that

her decision would be unaffected by her brother-in-law's

relationship to the victims.

Defense counsel renewed his objection and moved for a

mistrial. The court denied the motion and stated that the

relationship was not close enough to disqualify the juror. The

court also found that "Mr. Brooks will receive a fair trial and

will continue to do so with Mrs. Cook sitting as a jury member."

Analysis

Brooks's appeal comes before this Court on a denial of a

motion for a mistrial. Upon familiar principles, we will not

reverse the denial of a motion for a mistrial unless a manifest

probability exists that the trial court's ruling was

prejudicial. Taylor v. Commonwealth, 25 Va. App. 12, 17, 486

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S.E.2d 108, 110 (1997). "[T]he burden of establishing that

probability [rests] upon the party moving for a mistrial."

Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891

(1998) (citations omitted). Moreover, it is well settled that

the credibility of witnesses and the weight accorded witnesses'

testimony are matters that are within the province of the fact

finder. Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d 282,

286 (1999); Brooks v. Commonwealth, 15 Va. App. 407, 414, 424

S.E.2d 566, 571 (1992).

When the issue arises from a mid-trial challenge to a

juror's impartiality, we "will 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. 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"). Hence, we will

not reverse "the denial of a motion for a mistrial . . . unless

there exists a manifest probability that [the ruling] was

prejudicial." Id. (citations omitted).

The instant case involves a mid-trial challenge to a

juror's impartiality. Brooks contends that Cook's relationship

to the victims and to the Commonwealth's witnesses absolutely

bars her from acting as a juror in the case, on the ground that,

due to those relationships, she could not be impartial. Brooks

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specifically invokes the rules governing consanguinity and

affinity in support of his argument.

The Virginia Supreme Court held in Gray v. Commonwealth,

226 Va. 591, 311 S.E.2d 409 (1984), that "the long-standing,

common-law rule disqualifying a venireman who is related, within

the ninth degree of consanguinity or affinity, to a party to a

suit" also "applies to a victim of a crime as well as to a

party." Id. at 593, 311 S.E.2d at 410. The relationship at

issue here involved Cook's brother-in-law, her sister's husband,

who was the great uncle of the victims and, by implication, the

uncle of the victims' fathers, who were expected to be called as

witnesses in the case. Brooks contends that Cook was

"absolutely disqualified" as a juror because she was related

within the "ninth degree of consanguinity" to the alleged

victims and their parents. We disagree.

"Consanguinity" is a "relation by blood." Doyle v.

Commonwealth, 100 Va. 808, 810, 40 S.E. 925, 926 (1902). It is

patent Cook was not related by blood to her sister's husband

and, by extension, she was not related by blood to the victims

or their fathers.

Cook was also not related to the victims or their fathers

by affinity. Affinity is the relation of one spouse to the

other spouse's kindred. Id. "'Affinity properly means the tie

which arises from marriage betwixt the husband and the blood

relatives of the wife, and between the wife and the blood

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relatives of the husband. . . . [T]here is no affinity between

the blood relatives of the husband and the blood relatives of

the wife.'" Norris v. Presley, 290 So. 2d 643, 645 (Ala. 1974)

(citations omitted). Here, the relationship at issue did not

involve Cook and her husband's blood relatives. Rather, it

involved a relationship between her sister's husband and his

blood relatives. We conclude that the relationship does not

fall within the definition of affinity.2 See Doyle, 100 Va. at

810-11, 40 S.E. at 926 (finding that a juror, who was the nephew

of a man related by marriage to kindred of the victim, was not

disqualified from sitting through "affinity"); see also Anderson

v. State, 2 So. 2d 461, 462 (Ala. Ct. App. 1941) (finding that a

juror in a murder case, who was the brother-in-law of the

victim's sister, was not disqualified because "[n]o relationship

by consanguinity or affinity is presented as would disqualify

said juror").

Moreover, Brooks has the burden of establishing that he was

prejudiced by the trial court's decision not to grant his motion

for a mistrial. See Green, 26 Va. App. at 401, 494 S.E.2d at

891. "To determine if a trial court's denial of a motion for a

mistrial was prejudicial, when a juror's conduct is at issue, we

2
Cook's sister is arguably related to the victims and their
fathers by affinity; affinity is the relationship between one
spouse and the blood relatives of the other spouse. It does not
follow, however, that Cook is, therefore, related to the victims
and their fathers by affinity.

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must look to the juror's possible bias. The existence of an

individual juror's possible bias or partiality is a question of

fact to be determined by the trial court." Perez v.

Commonwealth, 40 Va. App. 648, 655, 580 S.E.2d 507, 509 (2003)

(citing Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d

422, 431 (1985)).

Brooks contends that, even if Cook is not excluded from

serving as a juror in this case in accordance with the

principles of consanguinity and affinity, her familial

relationship, in and of itself, gives rise to inherent bias on

her part and would affect her decision-making. Brooks's

argument is a simple recast of his contentions rooted in the

principles of consanguinity and affinity, which we have

determined do not apply as a bar to Cook's serving as a juror in

this case. Therefore, we reject this argument because no

presumption of bias may be said to arise by virtue of the

relationship itself.

Reviewing Brooks's contention factually, we find,

furthermore, that nothing in the record supports the conclusion

that Cook would be unable to fairly try the case. The Supreme

Court of Virginia has set out the following standard for

appellate review of the trial court's decision whether to retain

or exclude prospective jurors:

Upon appellate review, this Court gives
deference to the trial court's decision
whether to retain or exclude prospective

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 jurors. This is because the trial judge has
observed and heard each member of the venire
and is in a superior position to evaluate
whether the juror's responses during voir
dire develop anything that would prevent or
substantially impair the juror's performance
of duty as a juror in accord with the
court's instructions and the juror's oath.
A trial court's decision on this issue will
be affirmed absent a showing of manifest
error. And, a juror's entire voir dire, not
isolated portions, must be considered to
determine a juror's impartiality.

Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176

(1999) (citations omitted). We cannot say that the trial

court's finding that Cook was an impartial juror was manifest

error. See id.

Finally, we address whether the trial court erred in

denying Brooks's motion to strike Cook for cause on the ground

that her participation as a juror in the case eroded public

confidence in the integrity and fairness of the judicial

process. See Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28

(2000); Patterson v. Commonwealth, 39 Va. App. 658, 576 S.E.2d

222 (2003). Contrary to the argument of the Commonwealth that

the issue is not properly before us because Brooks failed to

raise it before the trial court and did not raise it on appeal,

under the Supreme Court's holding in Medici, by implication, the

question of public confidence is inherent in the jury selection

process and is necessarily implicated when a juror's retention

is purportedly improper. Medici, 260 Va. at 227, 532 S.E.2d at

31. In Medici, the issue of public confidence was not listed as

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a question on appeal; nor did the defendant make an objection at

trial on the issue of public confidence.3 The Virginia Supreme

Court, nonetheless, addressed the question and reversed the

defendant's conviction based on the trial court's failure to

strike a juror who had a relationship with the office of

defendant's counsel, finding that "permitting [the potential

juror] to sit [on the jury] . . . would weaken public confidence

in the integrity of criminal trials." Medici, 260 Va. at 227,

532 S.E.2d at 32.

Relying on Medici and its progeny, this Court stated in

Patterson:

The Supreme Court cases on this issue do not
indicate that prior appellants specifically
raised "public confidence" at the trial
level, but instead suggest the trial judge
must specifically consider the effect that
placing the venireman on the jury will have
on the public's confidence in the judicial
system. . . .

Patterson, 39 Va. App. at 666, 576 S.E.2d at 226 (citations and

quotations omitted). "We conclude . . . that an analysis of

'public confidence' is inherent in any appellate review of a

juror's impartiality . . . ." Id. at 669, 576 S.E.2d at 228

3
A review of both the record and the briefs to the Supreme
Court indicates the arguments at trial and on appeal were
general arguments about the error in seating the juror at issue.
Public confidence in the integrity of the judicial process was
not raised as a ground for reversal at the trial level or on
appeal.

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(emphasis added).4 We therefore address the question, as it is

inherent in Brooks's contention that the trial court's seating

of the juror was improper, notwithstanding Brooks's failure to

raise it at the trial court and on appeal.

We find that seating Ms. Cook as a juror, under the

circumstances of this case, would not erode public confidence in

the integrity of the judicial process. As noted earlier, the

relationship between the juror and witness was not one of either

consanguinity or affinity, which would require her removal from

the jury on the ground that "the law presumeth that one kinsman

doth favor another more than a stranger." Jacques v.

Commonwealth, 51 Va. (10 Gratt.) 690, 694 (1853). Thus, as a

matter of law, Ms. Cook's relationship by marriage to the

victims and the Commonwealth's witnesses is treated as remote

and tenuous, a factor to be considered in resolving this issue.

Moreover, she was questioned at length regarding the

relationship. She stated that she "thought she was introduced

to [him] one time" because he "looked familiar." However, when

the judge asked Ms. Cook, "You don't actually know any of these

people," she responded, "I don't know them. I don't know them

from Adam."

4
We note that, in Patterson, the issue of public confidence
was raised on appeal in appellant's brief to this Court.
However, as noted above, it was not raised on appeal in Medici,
and we find that, as a Supreme Court case, Medici controls our
decision to address the question in the case at bar.

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 We cannot say that the public's confidence in the integrity

of the process would be undermined by the seating of an unbiased

juror who was remotely related, by marriage, to the victims'

great uncle and to two of the Commonwealth's witnesses, and whom

the juror "[did not] know from Adam."

Conclusion

Because we find Cook was not related by consanguinity or

affinity to the victims or to any witnesses in the case, we hold

the trial court properly refused to strike Cook for cause.

Additionally, we find Brooks failed to meet his burden of

establishing that the trial court's denial of his mid-trial

motion for a mistrial, stemming from Cook's presence on the

jury, resulted in a manifest probability of prejudice. Finally,

we find that public confidence in the integrity of the judicial

process would not be undermined by Ms. Cook's service as a juror

in the case at bar because the relationship at issue was too

remote and tenuous to create the perception of bias. We,

accordingly, hold that the trial court did not err in denying

Brooks's motion for a mistrial and affirm his convictions.

Affirmed.

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Clements, J., concurring.

While I agree with the holding of the majority opinion that

the trial court did not err in denying Brooks's motions for the

removal of Cook from the jury and for a mistrial, I write

separately because I find it unnecessary and, indeed,

inappropriate, under the circumstances of this case, to address

sua sponte the issue of public confidence.

We have consistently held that we will not address an issue

that was not raised on appeal. See, e.g., Shoup v. Shoup, 37

Va. App. 240, 253 n.6, 556 S.E.2d 783, 790 n.6 (2001) (en banc);

Frias v. Commonwealth, 34 Va. App. 193, 196 n.1, 538 S.E.2d 374,

375 n.1 (2000). "On appeal, we [will] consider only the issues

raised." Mullins v. Commonwealth, 39 Va. App. 728, 733, 576

S.E.2d 770, 772 (2003); see also Richardson v. Moore, 217 Va.

422, 423 n.1, 229 S.E.2d 864, 865 n.1 (1976) (stating the Court

would "express no opinion" on a particular question because that

question "was not raised on appeal").

In this case, Brooks argues Cook was "absolutely

disqualified" because she was related "within the ninth degree

of consanguinity" or affinity to the "alleged victims in this

case and their parents." He also argues, as the Commonwealth

notes, that Cook "may have been inherently biased by her

familial relationships." Brooks, however, makes no claim on

appeal that Cook's presence on the jury would erode public

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confidence in the integrity of the judicial process. He simply

does not challenge the trial court's rulings on that ground.

Moreover, in my view, none of the decisions by the Supreme

Court of Virginia addressing the issue of public confidence in

the integrity of the judicial process requires us to consider

the public confidence issue when, as here, it has not been

raised on appeal. As noted in the instant majority opinion, the

Supreme Court reversed the appellant's conviction in Medici v.

Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000),5 on the basis of

the issue of public confidence even though that issue "was not

listed as a question on appeal." The Supreme Court's opinion in

Medici, however, "listed" only the overall issue of "whether the

trial court erred in refusing to strike for cause a potential

juror," without identifying the specific issues addressed by the

parties on appeal. Id. at 226, 532 S.E.2d at 30. Consequently,

it is not possible to tell from the opinion in Medici whether

the issue of public confidence was raised on appeal by the

appellant in that case or whether the Supreme Court addressed

the issue sua sponte. The same may be said of each of the other

opinions in which the Supreme Court has focused on the issue of

public confidence with regards to the jury-selection process,

none of which indicate whether the appellant raised the issue on

appeal. See Barrett v. Commonwealth, 262 Va. 823, 553 S.E.2d

5
The opinion in Medici was released approximately two years
before Brooks filed this appeal.

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731 (2001); Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502

(2000).

Likewise, while we addressed the issue of public confidence

in Patterson v. Commonwealth, 39 Va. App. 658, 576 S.E.2d 222

(2003), and Perez v. Commonwealth, 40 Va. App. 648, 580 S.E.2d

507 (2003), neither case is controlling here because, unlike

Brooks, the appellants in both of those cases specifically

raised the issue of public confidence on appeal. Accordingly,

neither of those decisions requires our consideration of the

issue of public confidence in this case.

I, therefore, believe that raising the issue of public

confidence on our own accord is contrary to established

principles of appellate review and would not do so.

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Fitzpatrick, C.J., dissenting.

I respectfully dissent from the majority opinion. While I

agree with the majority that the factual scenario presented in

the instant case does not meet the traditional technical

definitions of "consanguinity" and "affinity," it is a

distinction without a difference. Juror Cook's brother-in-law

was the uncle of two of the Commonwealth's witnesses and the

great-uncle of all five victims. This relationship, in my

opinion, triggers the public confidence analysis recently

enunciated by the Supreme Court in Cantrell v. Crews, 259 Va.

47, 51, 523 S.E.2d 502, 504 (2000), Medici v. Commonwealth, 260

Va. 223, 226-27, 532 S.E.2d 28, 30-31 (2000), and Barrett v.

Commonwealth, 262 Va. 823, 826-27, 553 S.E.2d 731, 733 (2001).

Public confidence in the integrity of
the process is at stake. It cannot be
promoted when a sitting juror is, at the
time of trial, a client of the law firm
representing one of the parties to the
litigation. . . . This is true even though,
as the record shows, the juror states that
the circumstances of her [relationship]
would have no "bearing" on her judgment as a
juror and that she could "be totally fair to
both sides."

Cantrell, 259 Va. at 51, 523 S.E.2d at 504. See also Medici

(reversed seating of a juror whose husband had been murdered and

the accused was represented by the Office of the Public

Defender, Medici's counsel's employer); Barrett (reversed

seating of a prospective juror whose brother was a police

officer expected to testify).

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 While "a juror's family relationship to a police-officer

witness does not require dismissal per se of the juror if the

trial court is satisfied that the juror can stand indifferent in

the cause, . . . [failure to strike the juror for cause] makes

it unlikely that the public would have confidence in the

judicial process." Barrett, 262 Va. at 826, 553 S.E.2d at 733.

Recently, in Patterson v. Commonwealth, 39 Va. App. 658,

576 S.E.2d 222 (2003), we again addressed the importance of

analyzing on a case-by-case basis the importance of public

perception and confidence in an impartial venire. "In a series

of opinions decided over the last several years, the Supreme

Court of Virginia has clearly found that inherent in appellate

review of impartiality is a determination of whether 'the public

would have confidence in the integrity of the process' if the

prospective juror remained." Id. at 667, 576 S.E.2d at 227.

The facts of this case clearly dictate that the seating of

Juror Cook, who was related, albeit by marriage rather than

blood, to all five child victims and two additional

Commonwealth's witnesses, was reversible error. Like the jurors

in Cantrell, Medici, and Barrett, Juror Cook indicated and the

trial court found that she would not be affected by her

relationship with the witnesses. However, our inquiry does not

end there. We must address the objective impact upon the public

as a whole. What could undermine confidence in an impartial

judicial system more readily than a juror who is a relative of

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both the victims and the Commonwealth's witnesses? On these

facts, I would reverse the convictions and remand for a new

trial, if the Commonwealth be so advised.

For these reasons, I respectfully dissent.

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