COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
CHARLES ALLEN MOFFETT, JR.
OPINION BY
v. Record No. 0210-96-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
Roger A. Inger (Massie, Inger, Boyd & Iden,
P.C., on brief), for appellant.
(James S. Gilmore, III, Attorney General;
Michael T. Judge, Assistant Attorney General,
on brief), for appellee.
Charles Allen Moffett, Jr. contends that he did not waive
his right to be tried by a twelve person jury voluntarily and
with full knowledge of his rights. We find no error and affirm
the judgment of the trial court.
On June 7, 1995, Moffett was arraigned on charges of
breaking and entering and grand larceny. He pleaded not guilty
to each charge. The trial court then entered into a colloquy
with Moffett, and the following discussion ensued:
THE COURT: Do you understand that you're
entitled to trial by jury?
MR. MOFFETT: Yes, sir.
THE COURT: You also understand that you
may waive trial by jury and be
tried by the judge without a
jury? Did you discuss this
with your lawyer?
MR. MOFFETT: Yes, sir, I have.
THE COURT: Is it your decision that you
want to be tried by the judge
or tried by the jury?
MR. MOFFETT: By the jury, Your Honor.
After the jury was selected and the trial commenced, one of
the jurors was notified of a family medical emergency. With
Moffett and his counsel present, this juror was brought into the
courtroom, and the trial court questioned her regarding the
nature of the medical emergency. The Commonwealth's attorney and
Moffett's attorney declined the trial court's offer to question
the juror further.
The Commonwealth's attorney informed the trial court that if
it was necessary to excuse the juror, the Commonwealth agreed to
go forward with eleven jurors. After permitting Moffett and his
counsel to confer, the trial court asked defense counsel and
Moffett whether they wished to proceed with only eleven jurors.
The following dialogue occurred:
THE COURT: Is that acceptable to your
client, Mr. Field.
MR. FIELD: Yes, Your Honor. I discussed
that with my client, and I'm
not sure what the law is on
this case, but if we can do
it, we would prefer to go
forward, and we are willing to
go forward with only 11
jurors. I would just ask Mr.
Moffett to state on the record
that I've discussed that with
him, and that's his desire so
it is clear on the record that
I'm not just speaking through
my hat.
THE COURT: You understand, Mr. Moffett,
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that you're entitled to have
12 jurors --
MR. MOFFETT: Yes, sir, I do.
THE COURT: -- under our law, but that you
may waive and have a smaller
jury if that's something that
you wish to do.
MR. MOFFETT: That's fine, Your Honor. I
have no objection to that.
THE COURT: Is that what you want to do?
MR. MOFFETT: Yes, sir. I'd like to go on
with it.
THE COURT: All right. The Court
appreciates that. Of course,
from your standpoint, I'm sure
you don't want to have to
start all over again either.
MR. MOFFETT: This is very true.
THE COURT: So that is noted of record
that the waiver was knowingly
made.
You may bring in the other 11
jurors, and then inform [the
juror] that she's excused for
cause.
MR. FIELD: All right, Your Honor.
THE COURT: The Court noting that she was
plainly distraught, and that
probably it might affect her
ability to think clearly.
MR. FIELD: Your Honor, it's my opinion it
would affect her ability based
on what I saw.
The trial continued with eleven jurors, who returned their
verdict finding Moffett guilty on both charges. On December 12,
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1995, Moffett moved to set aside the verdict, alleging that he
lacked "full understanding of his rights, the law, and the
consequences of such waiver" of a twelve member jury. By order
entered January 18, 1996, the trial court denied this motion and
sentenced Moffett. 1
The right of an accused to a jury trial is found in the
Constitution of the United States, Amendment VI, and in the
Constitution of Virginia, Article I, Section 8.
Holding that a twelve member jury is not required to satisfy
an accused's federal constitutional right to a jury trial, the
United States Supreme Court has said that the essential feature
of a jury, designed to prevent governmental oppression, lies:
[I]n the interposition between the accused
and his accuser of the commonsense judgment
of a group of laymen, and in the community
participation and shared responsibility that
results from the group's determination of
guilt or innocence. The performance of this
role is not a function of the particular
number of the body that makes up the jury.
To be sure, the number should probably be
large enough to promote group deliberation,
free from outside attempts at intimidation,
and to provide a fair possibility for
obtaining a representative cross-section of
the community. But we find little reason to
think that these goals are in any meaningful
sense less likely to be achieved when the
jury numbers six, than when it numbers 12--
1
The Commonwealth argues that Moffett waived his right to
appeal his acceptance of an eleven member jury by failing to
object timely. Though the motion to set aside the verdict was
made six months after trial, it was made prior to final
sentencing, and, thus, before final judgment. See Rule 1:1. The
trial judge entertained Moffett's motion, and did not hold it to
be untimely. Therefore, we do not address the timeliness of the
motion.
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particularly if the requirement of unanimity
is retained. And, certainly the reliability
of the jury as a factfinder hardly seems
likely to be a function of its size.
Williams v. Florida, 399 U.S. 78, 100-01 (1970). Thus, the
eleven member panel that tried Moffett comprised a jury
sufficient to satisfy the federal constitutional requirement.
Article I, Section 8 of the Constitution of Virginia
provides, in pertinent part:
[i]f the accused plead not guilty, he may,
with his consent and the concurrence of the
attorney for the Commonwealth and of the
court entered of record, be tried by a
smaller number of jurors, or waive a jury.
(Emphasis added.) See also Code § 19.2-262; Rule 3A:13.
Because of the presumption against waiver of a
constitutional right, Sisk v. Commonwealth, 3 Va. App. 459, 462,
350 S.E.2d 676, 678 (1986), a trial court must determine that a
defendant's waiver of trial by jury is voluntary, knowing and
intelligent. Rule 3A:13(b); Wright v. Commonwealth 4 Va. App.
303, 306, 357 S.E.2d 547, 549 (1987). Furthermore, the
defendant's consent and the concurrence of the trial court and of
the attorney for the Commonwealth must be entered of record.
Rule 3A:13(b); McCormick v. City of Virginia Beach, 5 Va. App.
369, 373, 363 S.E.2d 124, 126 (1987).
The Constitution of Virginia, Article I, Section 8,
expressly authorizes trial in a criminal proceeding by a jury of
fewer than twelve members. However, because this involves the
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waiver pro tanto by the accused of his right to trial by jury,
his voluntary, knowing and intelligently given consent, concurred
in by both the trial court and the Commonwealth's attorney, must
be obtained and entered of record. Moffett's consent, and the
concurrences of the Commonwealth's attorney and the trial court
are plainly of record. Moffett concedes that he gave his consent
voluntarily. The issue before us is whether he did so knowingly
and intelligently. We hold that he did.
The trial court advised Moffett fully of his right to a jury
of twelve. Moffett acknowledged that he understood that right,
and stated plainly that he wished to proceed with trial before
the remaining panel of eleven. Moffett acknowledged that this
decision was based on his desire to go forward with his trial and
not to be put to the necessity of starting trial again. Moffett
argues that the trial court did not advise him of all the
possible consequences that might have resulted from the smaller
panel. He suggests that a panel of twelve might have been harder
to convince unanimously of his guilt than a panel of eleven.
These considerations raise issues of supposition, not of law.
The record discloses unquestionably that the trial court properly
and thoroughly advised Moffett of his rights with respect to the
size of the jury panel and of his right, by waiver, to accept a
smaller panel. Moffett's decision to waive the full panel
composition and to accept a smaller panel, made after
consultation with his attorney, was voluntary, knowing and
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intelligent.
The judgment of the trial court is affirmed.
Affirmed.
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