COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
DWAYNE HUMBERT, A/K/A
DAVID JOHN BROWN
OPINION BY
v. Record No. 0745-98-2 JUDGE LARRY G. ELDER
JUNE 1, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief)
for appellee.
Dwayne Humbert (appellant) appeals from his jury trial
convictions for assault and battery on a law enforcement officer
and possession of cocaine. On appeal, he contends the trial
court erroneously (1) denied his motion for a mistrial when one
of the jurors initially was unable to confirm that she supported
the guilty verdicts and (2) held the evidence was sufficient to
support the assault and battery conviction. 1 Because we hold
that the trial court erred in denying appellant’s mistrial
1
The circumstantial evidence, viewed in the light most
favorable to the Commonwealth, see Servis v. Commonwealth, 6 Va.
App. 507, 523-24, 371 S.E.2d 156, 164-65 (1988), proved that
appellant intended to and actually did “inflict[] . . . corporal
hurt on [Officer McCoy] . . . willfully or in anger . . . by
motion, we reverse appellant’s convictions and remand for a new
trial.
I.
BACKGROUND
Appellant was arrested for assault and battery on a law
enforcement officer, and a search incident to that arrest
yielded cocaine. Appellant was tried by a jury for both
offenses.
After the jury began its deliberations, the court brought
the jury back into the courtroom to tell them that “the hour is
some means set in motion by him,” Jones v. Commonwealth, 184 Va.
679, 681-82, 36 S.E.2d 571, 572 (1946); see Seegars v.
Commonwealth, 18 Va. App. 641, 644, 445 S.E.2d 720, 722 (1994)
(holding that battery does not require infliction of injury).
Officer McCoy testified that his upper torso was inside the
car as he struggled with appellant’s companion. From this
position, McCoy saw appellant reach toward the ignition to start
the vehicle. McCoy reached for the ignition and yelled stop.
Despite McCoy’s efforts, appellant started the car, grabbed onto
his companion, “stepped on the accelerator,” and moved the car
forward, “knocking and dragging [McCoy] forward . . . by the
force of the automobile.” The jury was entitled to infer that
appellant intended the natural and probable consequences of his
actions in ignoring McCoy’s protests and moving the car forward
with the knowledge that McCoy was partially inside the car and
struggling with appellant’s companion. See Campbell v.
Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en
banc).
To the extent that the testimony of Officer McCoy may have
conflicted with that of bystander Steve Tanner, the jury, as the
finders of fact, was entitled to assess the witnesses’
credibility and to accept McCoy’s testimony over Tanner’s to the
extent that the testimony conflicted. See Long v. Commonwealth,
8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Further, that
appellant may have acted with an intent to flee the scene does
not preclude a finding that he also acted with an intent to
commit assault and battery. See Herrel v. Commonwealth, 28 Va.
App. 579, 588, 507 S.E.2d 633, 637 (1998).
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getting late. I don’t know what your problem is and I don’t
want to know how much longer you’re going to be. I will just
bring you back in the morning.” One juror indicated that they
were having difficulty reaching a unanimous decision and voiced
a concern about returning the following morning because he was
scheduled to have surgery. The judge told the jury they could
deliberate until 5:15 p.m. and that he was not “putting [them]
on any time limit.”
When a juror said they were having “differences of opinion
on assault and battery,” the trial court said:
There is no difference of opinion on
assault. Y’all are not supposed to have a
difference of opinion. The law is the law.
And, I described to you what it is. You
listen to the evidence and find the facts.
It’s simple. You either believed the
witnesses or you didn’t. You have to
believe beyond a reasonable doubt. And, I
don’t know what would be the problem unless
somebody just wants to be arbitrary.
The trial court then re-read the assault and battery instruction
to the jury and said:
I don’t see how it can be any clearer than
that. . . . I don’t want anybody to give up
any conscientious views that you have, but I
think you should listen to your fellow
jurors . . . to see if you can come to a
verdict. Some jury is going to come to a
verdict in this case. Why do you want to
shift your burden? All right. I will let
you return [in] a little while.
Before the jury came back a second time, the court
indicated that it would “grant a mistrial on the assault if they
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are hung.” Defense counsel stated, “Judge . . . I will withdraw
it,” implying that he previously had made a mistrial motion, but
no prior motion appears in the record. The trial court then
questioned the jury about whether they believed they could reach
a unanimous verdict. Several jurors indicated that they did not
think they could, one indicated that it was possible, and one
indicated that he or she did not think appellant was guilty.
The trial court then returned them to the jury room and spoke
with the juror scheduled for surgery. After confirming that the
juror would be able to return to deliberate the day following
his surgery, the trial court returned him to the jury room.
Although the court had not instructed the jury to
deliberate further after learning that several jurors believed
they could not reach a unanimous verdict and that one juror did
not think appellant was guilty, when the court brought the jury
back a third time, shortly after conferring with the juror
scheduled for surgery, the jury had reached a verdict of guilty
on both offenses. When the court polled the jury on defendant’s
motion to confirm that the guilty verdicts were the verdicts of
each juror, each of the first ten jurors responded, “Yes,” when
the clerk called each of their names. On the eleventh name, the
following exchange took place:
THE CLERK: Mozelle Barner?
THE COURT: Where is she?
THE SHERIFF: Is that you, ma’am?
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MS. BARNER: Yes.
THE SHERIFF: Ma’am –-
MS. BARNER: Yes.
THE SHERIFF: Can you speak up, please?
MS. BARNER: I’m sorry. I can’t say it.
[DEFENSE COUNSEL]: Judge, I ask the record
to reflect the juror responded that she –-
THE COURT: I don’t know what she said. You
have to –- yes or no, ma’am, that’s all.
MS. BARNER: (Shakes head yes).
THE COURT: Yes, or no. That’s all. You
have to speak. What is it, yes or no?
[DEFENSE COUNSEL]: Judge, respectfully –-
THE COURT: Just a moment, please. I will
do this, [Defense Counsel].
[DEFENSE COUNSEL]: I just have a –-
THE COURT: There is one more juror.
* * * * * * *
THE CLERK: Porter Davis?
* * * * * * *
THE COURT: All right. Are they your
verdicts?
MR. DAVIS: Yes, sir.
THE COURT: All right. Thank you, sir. All
right, ma’am, you have to answer yes or no.
MS. BARNER: Yes.
[DEFENSE COUNSEL]: Judge, I am sorry to
interrupt. I would ask the Court to declare
a mistrial at this point, Judge. I don’t
want to put this lady on the spot anymore
than she already is. I think it’s obvious
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she doesn’t feel comfortable dealing with
the guilty plea. I would ask the Court to
declare a mistrial.
THE COURT: She answers yes or no, either
way, that’s her prerogative.
[PROSECUTOR]: Judge, I thought I heard her
say yes.
THE COURT: I asked her to answer yes or no.
MS. BARNER: I said yes, Your Honor.
THE CLERK: She said yes, Your Honor.
THE COURT: Is that what she said?
THE CLERK: Yes, sir.
THE COURT: She said yes.
(Emphasis added).
While the jury was deliberating on the sentence, the
following exchange took place:
[DEFENSE COUNSEL]: Judge, I would like the
record to reflect that the next to the last
juror polled took a good amount of time
before she said yes to the verdict. She was
crying. She was obviously upset. And, I
would suggest to the Court that her crying
and the amount of time she took indicated
that she had some serious, serious
reservations about whether or not she could
do what the rest of the jury did. I ask the
Court to note that for the record, please.
THE COURT: Very well. She was obviously
upset to the Court but the Court did not
upset her. The Court just asked her to
answer yes or no, which she has done. And,
there was no coercion one way or the other
for her to answer. And, she answered yes.
That’s all that is necessary. . . . I don’t
know what this lady’s problem was. I am not
going to inquire.
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[DEFENSE COUNSEL]: I didn’t want to
indicate that the Court forced her. I just
wanted to renew my motion for a mistrial
based on –- after she was visibly upset and
crying and it took her a long time to
finally answer, almost under a whisper.
THE COURT: No question about that. I think
she said yes long before but I wasn’t sure.
So, that’s the reason I gave her another
opportunity. From the jury box to here
sometimes it sounds rather soft. But, I
think she said yes before. She also –- the
record should show she shook her head yes a
long time before. She said she just
couldn’t say it. . . . That was new. But,
she did that of her own volition and I will
let it stand.
II.
ANALYSIS
Appellant contends the trial court erroneously denied his
mistrial motion, which was based on an alleged lack of unanimity
in the jury verdict. He contends that Juror Barner’s initial
response to the court’s polling of the jury indicated that the
guilty verdicts were not hers, thereby invalidating the
verdicts. He also contends the trial court should have declared
a mistrial earlier in the proceedings, when a majority of the
jurors indicated their belief that they would not be able to
reach a unanimous verdict but then reached a verdict shortly
after learning they would be required to return to finish
deliberating at a later time. Finally, he contends the jury was
prejudiced by comments from the trial court criticizing the jury
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for its inability to reach agreement on the assault and battery
charge.
As a preliminary matter, we note that “[n]o ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling, except for good cause shown
or to enable the Court of Appeals to attain the ends of
justice.” Rule 5A:18. Where an accused alleges that the trial
court has made improper remarks in the presence of the jury but
fails contemporaneously to object, request a cautionary
instruction or move for a mistrial, he waives the right to
challenge those remarks on appeal. See Knight v. Commonwealth,
18 Va. App. 207, 216, 443 S.E.2d 165, 170 (1994); cf. Cheng v.
Commonwealth, 240 Va. 26, 38-39, 393 S.E.2d 599, 605-06 (1990)
(holding that “errors assigned because of a prosecutor’s alleged
improper comments or conduct during argument will not be
considered on appeal unless an accused timely moves for a
cautionary instruction or for a mistrial”). “A motion for a
mistrial is untimely and properly refused when it is made after
the jury has retired.” Cheng, 240 Va. at 39, 393 S.E.2d at 606.
We hold first that appellant properly preserved only a
portion of his argument for appeal. Although he timely moved
for a mistrial, his mistrial motion related only to Barner’s
response to the jury poll. Assuming without deciding that
appellant’s mistrial motion would have been timely regarding his
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other objections, appellant did not raise any other objections
in his motion. He did not argue to the trial court that the
plan to bring the jury back to deliberate on a later date
impermissibly coerced the jury as a whole into a verdict. He
also did not object at trial to the court’s comments criticizing
the inability of the jury as a whole to reach a verdict on the
assault and battery charge. In addition, the alleged errors
appellant raises for the first time on appeal do not meet the
standards for review under the good cause or ends of justice
exception to Rule 5A:18, for they are not “clear, substantial
and material.” Brown v. Commonwealth, 8 Va. App. 126, 132, 380
S.E.2d 8, 11 (1989). Finally, appellant also failed to include
these issues in his petition for appeal, which was limited to
his allegation that the trial court erred in denying his
mistrial motion. Thus, no appeal was granted on these issues,
and we do not consider them. See Rule 5A:12(c).
We turn now to whether the trial court erred in refusing to
grant appellant’s motion for mistrial based on Barner’s response
to the jury poll. “‘On appeal the denial of a motion for a
mistrial will not be overruled unless there exists a manifest
probability that the denial of a mistrial was prejudicial.’”
Carver v. Commonwealth, 17 Va. App. 7, 10, 434 S.E.2d 916, 917
(1993) (quoting Harward v. Commonwealth, 5 Va. App. 468, 478,
364 S.E.2d 511, 516 (1988)).
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The Constitution of Virginia entitles “a criminal defendant
tried by a jury [to] ‘a speedy and public trial, by an impartial
jury of his vicinage, without whose unanimous consent he cannot
be found guilty.’” Id. at 9, 434 S.E.2d at 917 (quoting Va.
Const. art. 1, § 8). Once the jury has returned its verdict “in
open court,” a defendant has a right to have the jury “polled
individually,” to confirm that each juror joins in the verdict
and that it is, in fact, unanimous. See Rule 3A:17(a), (d);
Clark v. Commonwealth, 135 Va. 490, 498, 115 S.E. 704, 706
(1923), overruled in part on other grounds by Chittum v.
Commonwealth, 211 Va. 12, 174 S.E.2d 779 (1970). The trial
court may require each juror to vote yes or no without
opportunity for explanation. See Clark, 135 Va. at 498-99, 115
S.E. at 707. “There is no right to a special poll to inquire
how or why each juror arrived at the verdict.” Shepperson v.
Commonwealth, 19 Va. App. 586, 592, 454 S.E.2d 5, 9 (1995).
When a juror expresses confusion in responding to a jury poll, a
trial court has “discretionary authority to ask appropriate
neutral questions to clarify” that juror’s response. Carver, 17
Va. App. at 10, 434 S.E.2d at 918. However, when a juror
clearly “understands the import of the question presented by the
court in the polling of the jury” and “answers that his or her
belief is contrary to the verdict rendered, the verdict is not
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unanimous and cannot be accepted.” 2 Id. at 11, 434 S.E.2d at
918.
We applied these principles in Carver, 17 Va. App. 7, 434
S.E.2d 916. In that case, a juror indicated during the jury
poll that she did not believe the accused was guilty, and she
said she joined in the verdict because the other jurors agreed
that he was guilty and said he would only be fined. See id. at
9, 434 S.E.2d at 917. After the juror had already expressed
these reservations, the trial court said, “Well, are you in
accord with this verdict?” and the juror responded, “Yes.” See
id. When counsel for the accused moved for a mistrial based on
the juror’s response, the juror said that she “went along” and
said yes, and repeated on two more occasions that she agreed
with the verdict. See id. We held in Carver that the juror’s
response to the trial court was not based on confusion; rather,
she indicated clearly “her belief that the [accused] was
innocent” and that “the reason for her vote of guilty was that
appellant would ‘only be fined.’” See id. Under those
circumstances, we said, the juror’s response indicated an
improper basis for her vote of guilty and required the
conclusion that the trial court erroneously accepted the jury’s
2
Rule 3A:17(d) further provides that “[i]f . . . all jurors
do not agree, the jury may be directed to retire for further
deliberations or may be discharged.” See also Code § 8.01-361
(permitting court to discharge jury “when it appears that they
cannot agree on a verdict or that there is a manifest necessity
for such discharge”).
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verdict as unanimous without requiring further deliberation.
See id. at 10-11, 434 S.E.2d at 918.
Appellant contends the circumstances surrounding Barner’s
response to the jury poll require the same conclusion here.
Based on all the circumstances shown by the record, we agree.
Although in this case, unlike in Carver, Barner did not indicate
expressly that the verdict was not her verdict, the trial
court’s repeated criticism of the jury during their
deliberations makes clear the atmosphere of intimidation that
existed by the time it was Barner’s turn to respond to the jury
poll. 3
The record demonstrates that, upon recalling the jury late
in the day and learning that they were having difficulty
reaching a unanimous decision due to “differences of opinion on
assault and battery,” the trial court said, “Y’all are not
supposed to have a difference of opinion. The law is the
law. . . . I don’t know what would be the problem unless
somebody just wants to be arbitrary.” It also observed that
“[s]ome jury is going to come to a verdict in this case. Why do
you want to shift your burden?”
Events immediately following these comments demonstrate
their likely coercive effect on Barner. When the court
3
Although appellant did not object to the effect of these
comments on the jury as a whole, his mistrial motion must be
considered “in context.”
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questioned individual jurors regarding their ability to reach a
unanimous verdict, several jurors indicated their belief that
unanimity was not possible, and one juror indicated
spontaneously that he or she did not think appellant was guilty.
However, shortly after these exchanges occurred, before the jury
had been instructed to deliberate further and after its members
learned they would be required to return another day to continue
deliberating, they indicated they had reached a unanimous
verdict. It was under these circumstances that Barner became
upset, began to cry and indicated that she was “sorry” and
“[could not] say it” when asked if she agreed with the guilty
verdicts.
Barner never indicated that the verdicts were not hers and,
upon the trial court’s facially non-coercive request to her to
give a yes or no answer, she said yes and thrice confirmed her
response. Under ordinary circumstances, we would hold that the
trial court did not err in failing to inquire into the reasons
for Barner’s initial hesitation. However, under the facts of
this case, we hold that the totality of the circumstances shows
the coercive effect the court’s comments to the jury as a whole
had on Barner’s response to the jury poll. Under these
circumstances, we hold the trial court erred in concluding the
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verdict was unanimous and, therefore, in denying appellant’s
motion for a mistrial.
Reversed and remanded.
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